Brandie Jones was in the yard at Arizona State Prison Complex Perryville, a women’s prison just west of Phoenix, when she got called into the office for important news about her dad. It was the summer of 2018. Her father, Barry Jones, was on death row. But now, after more than 23 years, a federal district judge had vacated his conviction. The state of Arizona was ordered to release or retry him immediately.

Brandie was elated. She had not seen Jones since his 1995 trial for a crime he always swore he did not commit. In May 1994, Jones had been accused of killing his girlfriend’s 4-year-old daughter, Rachel Gray, at the Desert Vista Trailer Park in Tucson, where they all lived. The child died from an apparent blow to her abdomen that had torn her duodenum, part of the small intestine. Jones was swiftly arrested as the sole suspect. “I wasn’t even allowed to say bye to him or give him a hug,” recalled Brandie, who was 11 at the time. “And I never got to hug him again from that day on.”

barry-jones

Barry Jones in 2018.

Photo: Arizona Federal Public Defender

Brandie never believed that her father had killed Rachel. She felt vindicated by the order vacating his conviction, in which U.S. District Judge Timothy Burgess criticized law enforcement’s “rush to judgment” in the case. His decision followed a seven-day hearing in Tucson’s federal courthouse in 2017, which largely dismantled the state’s evidence against Jones. Lead investigator Sonia Pesqueira admitted that she had taken no steps to investigate the timing of Rachel’s abdominal injury back in 1994, merely assuming that it had occurred the day before she died, when she had been spotted with Jones. But experts called by Jones’s lawyers said this was impossible. One doctor testified that there were “no reported cases in medical literature in which this type of injury has resulted in death in less than 48 hours.”

Such powerful exculpatory evidence would have almost certainly changed the outcome of Jones’s trial. But apart from Brandie, defense attorneys called no witnesses to counter the state’s theory of the crime. Burgess concluded that such poor lawyering violated Jones’s Sixth Amendment rights. Had Jones’s lawyers done their job, Burgess wrote, “there is a reasonable probability that his jury would not have convicted him of any of the crimes” that sent him to death row.

Brandie still remembers the stares from the courtroom as she took the stand in 1995. When the guilty verdict arrived, she felt like she’d let her father down. She spiraled after that. “I messed up a lot,” she said. “I was real angry, and I got into drugs.” At one point Brandie lost her leg after trying to jump onto a moving train and falling onto the tracks. As she cycled in and out of prison, Jones sent her letters, but she found it hard to write back. She was unable to cope with the knowledge that he would likely be executed one day.

Jones may well have been executed if not for an unexpected lifeline from the U.S. Supreme Court in a different Arizona case. The 2012 decision in Martinez v. Ryan carved out an exception to the strict rules that govern federal habeas appeals for people who received poor representation both at trial and in state post-conviction proceedings. The ruling paved the way to the evidentiary hearing — and to Jones’s vacated conviction.

Three years have passed since Jones’s conviction was overturned, and he remains locked up.

Yet rather than release or retry Jones, the Arizona attorney general challenged Burgess’s order, first to the 9th U.S. Circuit Court of Appeals, which sided with Jones, and then to the U.S. Supreme Court. In their petition to the high court this past January, Arizona prosecutors argued that Burgess and the 9th Circuit had wrongly applied the justices’ ruling in Martinez, opening a path to relief that should have remained closed. To the dismay of Jones’s legal team, on May 17, the Supreme Court announced that it would hear the case.

This time, Brandie heard the news from her dad. He tried to sound upbeat, but it was hard not to feel discouraged as she hung up the phone. Brandie had hoped to reunite with Jones after her own release from prison in 2018. Instead, three years have passed since Jones’s conviction was overturned, and he remains locked up. “He’s lost so much of his life. He doesn’t know any of his grandkids,” Brandie said. “It’s just being prolonged and prolonged and prolonged.”

To Assistant Federal Public Defender Cary Sandman, who has represented Jones for years, the state’s maneuvering in Jones’s case is disgraceful, if not surprising. With the bulk of the evidence supporting the conviction stripped away, prosecutors are banking on procedural gamesmanship and the Supreme Court’s newly powerful conservative majority to nullify the evidentiary hearing’s powerful revelations. “If Arizona’s attorney general has his way in the Supreme Court,” Sandman said, “all of the evidence of Jones’s innocence will be thrown out.”

WASHINGTON, :  Protesters march with signs calling for the end of the death penalty during a demonstration 28 February, 2000 in front of the US Supreme Court in Washington, DC, as justices inside the Supreme Court hear arguments on the Effective Death Penalty Act of 1996, giving the right to appeal when there is new evidence of innocence. The protesters are seeking a new trial for former radio journalist and one time Black Panther Mumia Abu-Jamal who was sentenced to death for killing a Philadelphia police officer in 1981.    AFP PHOTO/Chris KLEPONIS (Photo credit should read CHRIS KLEPONIS/AFP via Getty Images)

Protesters demonstrate in front of the U.S. Supreme Court in Washington, D.C., on Feb. 28, 2000, as the justices hear arguments on the Antiterrorism and Effective Death Penalty Act.

Photo: Chris Kleponis/AFP via Getty Images

Manufacturing a Problem

When a death penalty case reaches the Supreme Court, the question of actual innocence isn’t usually up for discussion. The court has previously made clear that even the wrongfully convicted should not expect to be spared. In Herrera v. Collins, the court famously found that it is not necessarily unconstitutional under the Eighth Amendment to execute an innocent person so long as they received a fair trial. The plaintiff in that case, Leonel Torres Herrera, was executed in Texas just four months later, proclaiming his innocence until the end.

While some may consider Jones’s innocence an open question, there’s no doubt that his trial was unfair. The evidentiary hearing proved it, and numerous federal judges have since concurred that Jones received ineffective assistance of counsel. But in its brief before the Supreme Court, Arizona argued that the evidence presented at the hearing should not count. If the justices agree, it will put Jones in a perilous position. While Arizona has been fighting to reinstate his conviction, Attorney General Mark Brnovich has been working to restart executions.

AEDPA has been notorious for tying the hands of federal judges who try to undo wrongful convictions.

The implications go beyond Jones. In its petition to the Supreme Court, Arizona bundled Jones’s case with that of another man, David Martinez Ramirez, to argue that the 9th Circuit had repeatedly violated federal law in applying the Supreme Court’s 2012 decision in Martinez. Specifically, they pointed to a provision of the sweeping 1996 Antiterrorism and Effective Death Penalty Act that forbids federal courts from granting hearings on claims that were never developed in state court. Thus, Jones’s case — known as Shinn v. Ramirez — pits AEDPA, a law designed to curtail federal review in capital cases, against Martinez, a ruling that sought to do the opposite, at least in a narrow set of circumstances.

But lawyers for Jones argue that the two were never meant to be reconciled, and that Arizona prosecutors have tried “to manufacture a problem where none exists.” The real goal, they argue, is to undo the ruling in Martinez by weaponizing AEDPA, which has functioned for decades to prevent defendants from gaining access to federal courts — and to keep wrongful convictions intact.

“I see Shinn v. Ramirez as that kind of case where, because it is so hypertechnical, people don’t realize how far-reaching the effects of the rule would be,” said Lee Kovarsky, a leading death penalty and habeas corpus scholar at the University of Texas School of Law in Austin. To Kovarsky, who has argued before the Supreme Court and plans to file an amicus brief in support of Jones, the case is fundamentally about the right to counsel. “The question is about whether you can use evidence to prove these Sixth Amendment right-to-counsel claims in federal court — and if you cannot use evidence to prove the claim, then you don’t have a Sixth Amendment right that you can actually enforce.”

A Crucial Exception

The question before the court in Shinn is indeed legally complex. It’s also impossible to comprehend without first understanding the problem that Martinez was designed to correct. Under the Sixth Amendment, criminal defendants have a right to adequate representation at trial. Once they have been convicted and sentenced, they can challenge their case on the grounds that they received ineffective assistance of counsel. Proving this is a high bar — and under the strict rules governing federal appeals, this challenge must first be brought in state court or it will be barred from consideration in federal court, a concept known as “procedural default.”

This procedural rule routinely prevents people from challenging their convictions in federal court. But it has had especially high stakes in states like Arizona, where defendants are not allowed to challenge their trial lawyers’ performance on direct appeal, the initial review that immediately follows a conviction. They must instead wait until state post-conviction, the subsequent appellate proceeding, in which a defendant must prove that their constitutional rights were violated in order to win relief. Unlike at trial or direct appeal, there is no guarantee of an attorney, let alone a competent one, at the state post-conviction level. If a defendant failed to bring an ineffective assistance claim at this stage, they would lose their one chance to prove that bad lawyering made their trial unconstitutional.

This dilemma came to a head in 2012 in the case of an Arizona man named Luis Mariano Martinez. Convicted of sexually assaulting his 11-year-old stepdaughter, he swore he was innocent, and despite glaring errors by his trial attorneys, his appointed post-conviction attorney failed to challenge their performance. In fact, she did not bring any constitutional challenges on behalf of her client, instead stating that she had found no viable claims. For Martinez, who spoke limited English and did not understand the rules governing his appeals, the result was devastating.

In the absence of adequate counsel, even an innocent person “faces the danger of conviction because he does not know how to establish his innocence.”

Attorneys with the Arizona Justice Project appealed the case, Martinez v. Ryan, all the way up to the Supreme Court. The court had long held that a post-conviction attorney’s failures were ascribed to their client — and that poor lawyering at this stage was not sufficient to excuse a procedural default. But in a 7-2 ruling that included Justices John Roberts and Samuel Alito, the court decided on an exception to protect defendants in states that barred them from asserting ineffective assistance of trial counsel on direct appeal. If such a defendant’s failure to bring a claim in state post-conviction proceedings was due to the fact that the post-conviction attorney, too, was ineffective, the procedural default could be excused.

Writing for the majority, Justice Anthony Kennedy explained the need for such an exception. “When an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim,” he wrote. This would fly in the face of their Sixth Amendment right to counsel — “a bedrock principle in our justice system.” Kennedy quoted a landmark Supreme Court case in spelling out what this could mean. In the absence of adequate counsel, even an innocent person “faces the danger of conviction because he does not know how to establish his innocence.”

Although limited in scope, the Martinez ruling was a big deal, a rare shift toward expanding the avenues for challenging a criminal conviction in federal court. Although there is no guarantee of winning on an ineffective assistance claim even in cases where lawyers did a horrible job, Martinez allowed defendants another shot in cases where they would have been otherwise barred on procedural grounds. “Before Martinez, our office lost many, many, many ineffective assistance cases because the claims were never raised in the state court,” Sandman said.

If there was any reason to worry that AEDPA might stand in the way, there had been no hint in the Supreme Court’s handling of Martinez. The opinion didn’t mention the law apart from a brief reference, in which Kennedy wrote that AEDPA “does not speak to the question presented in this case.” The reason seemed fairly logical: The point of Martinez was to give defendants a chance to pursue a “substantial” ineffective assistance claim that would have been otherwise prohibited. Since proving such a claim generally relies on new evidence, it would stand to reason that defendants who overcome the procedural barrier would then be able to air that evidence in court. In his opinion, Kennedy acknowledged as much: “Claims of ineffective assistance at trial often require investigative work” and “evidence outside the trial record,” he wrote.

But Kennedy also wrote that Martinez “ought not to put a significant strain on state resources,” a prediction the Arizona attorney general insists has proven false. “Inmates, particularly in death-penalty cases, routinely invoke Martinez to excuse their ineffective-assistance claims’ procedural defaults,” the state argued in its petition to the court. The state cited 18 Arizona cases, not including Jones’s or Ramirez’s, that the 9th Circuit has sent back to district court under Martinez. “The 9th Circuit’s application of Martinez has … already had an onerous impact in Arizona and elsewhere,” the Shinn petition argued, adding, “This court’s intervention is critical at this juncture.”

FILE - In this Nov. 4, 2014, file photo, Arizona then-Republican candidate for Attorney General Mark Brnovich talks to supporters at the Republican election night party in Phoenix. Brnovich ended the investigation into Republican Gov. Doug Ducey, saying he did not violate state law when he encouraged small business leaders to vote no on Proposition 208 last year. (AP Photo/Ross D. Franklin, File)

Mark Brnovich, then-candidate for Arizona attorney general, talks to supporters at a Republican election night party in Phoenix on Nov. 4, 2014.

Photo: Ross D. Franklin/AP

A Catch-22

While Arizona prosecutors may consider it an intolerable burden when federal judges say that a capital case needs another look, the 9th Circuit’s actions in the wake of Martinez may be a sign of a different crisis: that poor lawyering has sent too many people to death row. Although Kennedy wrote in Martinez that “it is likely that most of the attorneys appointed by the courts are qualified to perform, and do perform, according to prevailing professional norms,” there is considerable evidence to the contrary.

Part of the reason for this is AEDPA, a law passed in the aftermath of the Oklahoma City bombing, which took place the year Jones was convicted. Aimed at expediting the federal appeals process, it has been notorious for tying the hands of federal judges who try to undo wrongful convictions. But AEDPA also had an additional effect in Arizona — one that helps explain how Jones ended up where he is today. A lesser-known provision of the law offered to speed up federal habeas review even further in states willing to provide competent and well-compensated post-conviction counsel. Although no state successfully availed itself of this provision, Arizona tried. In a special session shortly after AEDPA was signed into law, the state Legislature passed a bill providing for the appointment of private lawyers for people appealing their death sentences, to be managed by the Arizona Supreme Court.

The system was an immediate failure. In a 1998 article for Arizona Attorney, the late Larry Hammond, co-founder of the Arizona Justice Project, raised alarm over the “crisis” that unfolded. “More than 200 letters were sent to attorneys by the court’s staff inviting them to apply for appointment as counsel,” he wrote. “In addition, advertisements were published in various legal publications. These solicitations generated only 16 applicants.” Of those applicants, only four met the qualifications required to represent people on death row.

“I’ve seen post-conviction petitions that don’t have the client’s correct name or claims in them.”

To fix the problem, Arizona simply watered down the requirements, amending the Arizona Rules of Criminal Procedure to allow the state Supreme Court, in “exceptional circumstances,” to appoint an attorney “who does not meet the qualifications.” But the exception became the rule. Lawyers without the necessary experience or training were regularly assigned to handle death penalty cases in state post-conviction. In a phone call before he died, Hammond told me that many of these lawyers “simply didn’t raise claims. They didn’t raise ineffective assistance claims. They didn’t raise actual innocence claims. They didn’t raise prosecutorial misconduct claims. Often, they did next to nothing.” Despite numerous efforts to revamp it, the system has remained embattled. “I’ve seen post-conviction petitions that don’t have the client’s correct name or claims in them,” former Assistant Federal Public Defender Sylvia Lett, who previously represented Jones, told me in 2017.

Jones was just entering the post-conviction phase when AEDPA was signed into law. The shortage of attorneys kept him waiting for years. In 1998, he received a letter from the lawyer who had been appointed to represent him — the same attorney who would later represent Martinez — who told him that she was handing his case off to someone else. Almost a year later, in September 1999, Jones’s case was assigned to James Hazel.

Now a judge in Pinal County, Hazel conceded at Jones’s 2017 evidentiary hearing that he was not technically qualified to represent Jones in post-conviction. Although he sought funding for an investigator to dig into the evidence that should have been presented at trial, he’d been sloppy, filing his request under the wrong legal statute, thus disqualifying the request. “I don’t think the judge was going to grant it no matter what I put down on that piece of paper,” Hazel testified, which seemed to concern Burgess. “Why do you say that?” he asked. Hazel responded that “the culture at that time was that you didn’t get experts, you didn’t get investigators. … That was just how it was done.”

Jones’s case seemed like a perfect example of what Martinez was meant to remedy. Not only did his trial attorneys fail to investigate the medical evidence underpinning the state’s case, or call a single expert to debunk it, but his post-conviction attorney also failed to do the same thing. But Arizona prosecutors insisted that, under AEDPA, Burgess should not have been allowed to use Hazel’s testimony — or any evidence from the hearing — to vacate Jones’s conviction. Appearing before a three-judge panel of the 9th Circuit in 2018, Assistant Arizona Attorney General Myles Braccio argued that while it may have been appropriate for Burgess to use the newly developed evidence to conclude that there was “cause” to excuse the procedural default, that same evidence could not be used to decide the case on the merits.

The panel found this argument vexing. One judge called it “a Catch-22.” In November 2019, the judges ruled against Arizona — and the 9th Circuit subsequently refused to rehear the case en banc. But in a dissent, eight judges disagreed with the 9th Circuit’s decision. Six of them were Trump nominees. Writing for the dissenters, one of them, Judge Daniel Collins, called out his colleagues for their ruling not only in Jones’s case but also in Ramirez’s, which had been decided that same year. Collins argued that AEDPA should have prohibited evidentiary development in both cases, even if it meant that no federal court would be able to consider evidence of ineffective lawyering. “To the extent that it seems unfair that a potentially meritorious claim might escape federal habeas review,” he wrote, “that feature is inherent in the restrictions that AEDPA imposes on the grant of federal habeas relief.” In other words, it didn’t matter how egregiously Jones’s lawyers might have failed him — or how much evidence might point to his innocence. Jones should never have been allowed back into federal court.

Perpetual Uncertainty

The oral argument in Shinn has yet to be scheduled. The soonest it will happen is November. Whether it will take place remotely remains to be seen. “If there’s any chance possible that I can attend in person, I would definitely 100 percent do that,” Brandie said. If not, “I definitely will be attached to the screen while all that’s going on.”

Legal scholars, capital habeas lawyers, and people on death row will be watching the case closely too. For many of them, the court’s decision to hear the case was an unnerving step backward. “Martinez has allowed many more habeas courts to actually probe the merits in ineffective assistance of counsel claims than was true before,” said University of Michigan law professor Leah Litman, co-creator of the Supreme Court podcast “Strict Scrutiny.” She fears that it’s “a very bad indication that the court is effectively going to close off that window by saying AEDPA’s limits on collecting new evidence apply if you are trying to make use of the Martinez procedural gateway.” Such a decision would “dramatically, dramatically undermine the ability of federal courts to make use of that exception.”

For Jones, who has struggled with depression during his decades on death row, one of the hardest parts of the court’s decision to take his case is that it keeps him in a place of perpetual uncertainty. In the past year, he has seen incarcerated neighbors die from Covid-19. One of them, Alfonso Salazar, had been waiting on a ruling in his own case after getting back into federal court thanks to the ruling in Martinez.

Jones, who is now in his 60s, got sick himself early in the pandemic. But he was never tested for the virus. After 26 years in prison, he worries he is running out of time. In their most recent phone calls, Brandie has tried to keep Jones’s spirits up. “I tell him, ‘Don’t say negative things, Dad, because you’re putting negative things into the universe. I know it’s hard … but let’s not give up hope.’”