“Innocence Isn’t Enough”: Arizona Urges the Supreme Court to Send Barry Jones Back to Death Row

The case has far-reaching implications: Should new evidence be ignored by the federal courts even when it exposes a wrongful conviction?

WASHINGTON, DC - DECEMBER 07: The Supreme Court of the United States, photographed on Tuesday, Dec. 7, 2021 in Washington, DC.  (Kent Nishimura / Los Angeles Times via Getty Images)
The U.S. Supreme Court on Dec. 7, 2021, in Washington, D.C. Photo: Kent Nishimura/Los Angeles Times via Getty Images

The morning of the oral argument in Shinn v. Ramirez, the last case on the U.S. Supreme Court’s calendar in 2021, Barry Jones’s children gathered around a large flat-screen TV in Tucson, Arizona. Jones’s daughter Brandie was there, as well as her younger brother James. Their youngest sibling, Andrew, whom Brandie often relied upon to explain the confusing litigation in their dad’s case, was working a remodeling job in Nevada. He’d try to listen to the argument on his phone.

Now in their 30s, the siblings were just kids when their dad was sentenced to die. He’d been accused of an unfathomable crime: the rape and murder of his girlfriend’s 4-year-old daughter, Rachel. Jones swore he was innocent — and the case against him was flimsy from the start. In 2017, an evidentiary hearing finally dismantled the evidence that sent Jones to death row. The next year, a federal judge overturned his conviction, ordering the state to retry Jones or release him. But that never happened. Instead, Arizona appealed the decision all the way to Washington, D.C.

The siblings gathered at the home of their aunt Deborah Wheeler for the oral argument in early December. “I’ve always believed he was innocent,” Wheeler said. Although Jones had problems with drugs when he was younger, that didn’t make him a murderer, she said. “And I know he would never hurt a little kid.” Wheeler recalled a time when Jones stayed with her while working part time at a copper mine east of Phoenix. She was struck by Jones’s kindness to her daughters, as well as her disabled son. “Barry was always so good to him,” she said.

Wheeler was living in Phoenix when Jones was arrested in Tucson on May 2, 1994. Rachel’s lifeless body had been found earlier that morning in the trailer Jones shared with the child’s mother, Angela Gray. As they would later discover, Rachel had died following a rupture in her small intestine, which developed into a fatal condition called peritonitis. Although Jones was distraught after taking Rachel and Gray to the hospital, he soon became the sole suspect.

Wheeler was disturbed by the little she saw of Jones’s 1995 trial. “I remember thinking then, he had no defense, everything was just accusations,” she said. Jones’s court-appointed lawyers called no witnesses at the guilt phase apart from Brandie, who was 12 years old. When Wheeler was called to testify at the sentencing, “nobody prepared me,” she said.

Had Jones’s lawyers been up to the task, there was plenty they could have done to defend their client. They could have pointed out that the lead detective, who examined Rachel at the hospital, didn’t bother to investigate how or when the child sustained her fatal injury — or consider a single other suspect aside from Jones. They could have called a medical expert to show that there was no real evidence that the child had been raped. Most crucially, Jones’s lawyers could have called a pathologist to challenge the state’s theory of the crime, which rested on a narrow timeframe during which Jones had supposedly assaulted Rachel the day before her death. Medical experts now say that Rachel’s abdominal injury could not have become fatal so quickly. One doctor said she was unaware of any reported cases in which such an injury could have resulted in death in under 48 hours.

It was not until the evidentiary hearing 22 years after the trial that Jones’s federal public defenders presented this evidence, not to a jury but to U.S. District Judge Timothy Burgess. After seven days of testimony at Tucson’s federal courthouse, Burgess concluded that Jones’s trial had been marred by ineffective assistance of counsel — a violation of his Sixth Amendment rights. But for the failures of Jones’s trial attorneys, Burgess wrote, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.”

But the Arizona attorney general challenged Burgess’s ruling, appealing 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 for certiorari, the brief asking the court to hear the case, Arizona prosecutors argued that Burgess and the 9th Circuit had violated the Antiterrorism and Effective Death Penalty Act. The law, known as AEDPA, limits the avenues for challenging a criminal conviction. According to Arizona, Burgess should never have been allowed to use the evidence presented at the hearing to overturn Jones’s conviction. In May, the Supreme Court announced that it would hear the case.

Jones’s attorneys had sent Wheeler a link to the oral argument. Over bacon and eggs, the family gathered to listen at 10 a.m. Tucson time. There was no video, only an image of the Supreme Court building, so it was hard to tell which of the justices was speaking — let alone what they were talking about. Jones’s family quickly got lost in the sea of legalese. “I kept asking, ‘Are they still talking about Dad?’” Brandie said. But one thing jumped out. The attorney for the state repeatedly told the justices, “Innocence isn’t enough.”

FILE - This Oct. 20, 2020 file photo, shows the Arizona Supreme Court in the Arizona State Courts building in Phoenix, Ariz. Shortly after the Arizona Supreme Court created a task force on countering disinformation in 2019, its members realized their approach was a losing battle. They thought they could simply counter misinformation with information. Then came the pandemic, protests following the death of George Floyd and the 2020 election, and the rush of disinformation that followed. (AP Photo/Ross D. Franklin, File)

The Arizona Supreme Court in Phoenix on Oct. 20, 2020.

Photo: Ross D. Franklin/AP

A Bellwether Case

Although the question before the court is highly technical, the decision in Jones’s case will have far-reaching implications for people in prison and on death row. For those who are innocent, the stakes are uniquely high: The justices are effectively deciding whether new evidence — like that presented at Jones’s 2017 evidentiary hearing — should be ignored by the federal courts, even when it exposes a wrongful conviction.

In an amicus brief filed in September, the Innocence Network, a consortium of organizations that works to correct wrongful convictions, argued that exonerations won through Sixth Amendment challenges often hinge on evidence uncovered long after a defendant’s trial. “Without such evidence, basic failures to investigate cannot be corrected, faulty forensic evidence cannot be unmasked, and the innocent individuals who are the victims of these deficiencies have no route to justice,” the brief read.

News of the Supreme Court’s decision to take up Jones’s case arrived on the same day the high court announced that it would hear the Mississippi abortion case threatening Roe v. Wade. Although Jones’s case flew mostly under the radar, many legal experts saw the move as another emblem of the court’s extreme rightward shift since Justices Anthony Kennedy and Ruth Bader Ginsberg were replaced by Brett Kavanaugh and Amy Coney Barrett. “I think that if Justice Ginsberg and Justice Kennedy were still on the court, it’s not likely they would have granted cert to begin with,” said Jones’s longtime attorney, Arizona Assistant Federal Defender Cary Sandman.

“I think it’s important to understand the antics in this case as the antics that are happening elsewhere on the court’s docket this term.”

For law professor Leah Litman, an expert in federal post-conviction review and co-host of the podcast “Strict Scrutiny,” the court’s decision will also be “a bellwether case for how extreme this court will be” on other issues. In a call with reporters in early December, Litman pointed out an amicus brief in favor of Arizona brought by the former Texas solicitor general who authored the draconian abortion law known as S.B. 8. “I think it’s important to understand the antics in this case as the antics that are happening elsewhere on the court’s docket this term,” she said.

Among the small percentage of cases the court agrees to review every year, the justices have traditionally taken those that serve as vehicles for resolving conflicts between the lower courts. In Jones’s case, which was consolidated with that of another man on death row named David Ramirez under the title Shinn v. Ramirez, Arizona argued that the 9th Circuit had misconstrued a previous Supreme Court ruling, Martinez v. Ryan, in violation of AEDPA. Yet there was no dispute in the lower courts on the matter; no federal court has adopted Arizona’s argument. As Jones’s attorneys told the justices, the state sought “to manufacture a problem where none exists.”

Many legal experts saw Arizona’s real goal as overturning the court’s 2012 decision in Martinez. The 7-2 ruling provided a lifeline to people in prison and on death row, who often face insurmountable barriers to getting their cases heard in federal court despite being entitled to federal review. Specifically, the decision sought to fix a long-standing problem for those who had shoddy representation at trial. Under Arizona law, defendants only had one chance following their conviction to argue in state court that their right to counsel had been violated. Although indigent defendants were given lawyers to handle this critical stage of their appeal, many were similarly unqualified or ill-prepared to represent their clients. This had grave consequences: If a state post-conviction attorney failed to challenge a trial lawyer’s performance, their client would be forever barred from bringing the claim forward in federal court, a concept known as procedural default.

But Martinez created a path to relief. If a defendant had not brought a substantive ineffective assistance claim because their post-conviction lawyer, too, was ineffective, the justices decided, this default could be excused, allowing a federal court to consider the claim. Writing for the majority, Kennedy explained the importance of the ruling. For a person facing a lifetime in prison — or worse, execution — an ineffective post-conviction lawyer likely meant that “no state court at any level will hear the prisoner’s claim.” Without the remedy created by Martinez, there would be no way to uphold defendants’ Sixth Amendment right to counsel — “a bedrock principle in our justice system.”

Tough Luck

For Jones and Ramirez, who had been on death row for a combined 40 years when Martinez was decided, the ruling opened a door that had long been closed. Both men had been shut out of federal court after their state post-conviction lawyers failed to challenge their trial lawyers’ most egregious mistakes. Jones’s post-conviction lawyer had repeated the errors of his trial attorneys, failing to investigate the medical basis for the state’s case, which would have debunked the whole theory of the crime. After Burgess overturned Jones’s conviction, a unanimous panel of the 9th Circuit rejected Arizona’s appeal, upholding the order to release or retry him.

Ramirez’s case followed a different trajectory. Convicted of murdering his girlfriend and her teenage daughter in 1989, he did not claim his innocence. But he did have significant mental impairments and a long history of childhood trauma, abuse, and neglect. Ramirez’s lead trial attorney, who had never handled a death penalty case, did not investigate this evidence. His post-conviction lawyer largely failed to do the same. Although a federal district court initially rejected Ramirez’s argument that he was entitled to an evidentiary hearing in light of Martinez, a unanimous 9th Circuit panel reversed the decision, directing the court to allow the hearing.


His Conviction Was Overturned Amid Evidence of Innocence. The Supreme Court Could Throw It All Out.

The 9th Circuit rulings came months apart. The Arizona attorney general’s office blamed a common denominator for its defeats: not the years of incompetent lawyering now haunting the state’s capital convictions, but the fact that the Supreme Court’s Martinez ruling was allowing defendants to prove their ineffective assistance claims in federal court. In the state’s view, neither Jones nor Ramirez should have ever made it so far. Prosecutors specifically pointed to a provision of AEDPA that forbade federal courts from holding evidentiary hearings on claims that had not been developed in state court. Just because Martinez allowed defendants to bring a claim that had been previously barred did not mean they were entitled to prove it.

Practically, the argument made no sense. Why would the Supreme Court dangle the chance to get back into federal court if defendants were doomed from the start? In Jones’s case, the 9th Circuit panel had seemed baffled by the rationale offered by Assistant Attorney General Myles Braccio at oral argument. He insisted that while Martinez may have allowed for the evidence uncovered by Jones’s federal public defenders to get Jones’s claim of ineffective assistance before a judge, Burgess was required by AEDPA to ignore that same evidence when deciding whether Jones’s trial lawyers had been ineffective. Instead, he should have relied on the state record. “But that doesn’t make sense if the claim wasn’t developed in state court,” one judge told Braccio. “You’d be looking at a vacuum.” Another judge called it “a Catch-22.”

Why would the Supreme Court dangle the chance to get back into federal court if defendants were doomed from the start?

Although the 9th Circuit rejected Arizona’s position — and denied its appeal for a rehearing — the state’s argument gained currency elsewhere on the bench. Judge Daniel Collins, a Trump appointee, dissented from the court’s refusal to rehear the case, accusing his colleagues of using Martinez to create a judge-made exception to AEDPA in the cases of both Jones and Ramirez. Legislators had crafted such procedural rules to ensure finality, he said. If the result seemed harsh, tough luck. “To the extent that it seems unfair that a potentially meritorious claim might escape federal habeas review, that feature is inherent in the restrictions that AEDPA imposes.”

It’s true that AEDPA set a deliberately high bar for federal review, which has proven disastrous for countless defendants since its passage. But it’s not true that the law was explicitly designed to be quite as harsh as Collins or the Arizona attorney general insisted. When President Bill Clinton signed AEDPA in 1996, he emphasized that the provision barring evidentiary hearings should not be read “to deny litigants a meaningful opportunity to prove the facts necessary to vindicate federal rights.”

In an amicus brief filed on behalf of Jones and Ramirez, legal scholars traced the language of this provision to show that legislators had aimed to limit hearings only when defendants were at fault for failing to develop evidence in state court. In Martinez, the Supreme Court provided a chance at relief for defendants like Jones and Ramirez on the grounds that they were not responsible for the failures of their post-conviction lawyers.

Nevertheless, Collins’s dissent formed much of the basis of Arizona’s petition to the Supreme Court in Shinn v. Ramirez. The Texas attorney general, joined by a dozen death penalty states, filed a brief urging the court to take the case, “to reassert [AEDPA’s] primacy over the judge-made rule of Martinez.” After the justices granted review, a number of additional briefs were submitted on behalf of Ramirez and Jones.

One, brought by a group of former Department of Justice prosecutors, warned that Arizona was trying to “transform Martinez into a hollow precedent” offering “an empty promise of judicial review.” Another, filed on behalf of former federal judges and state supreme court judges, called Arizona’s argument “absurd,” warning that a ruling in the state’s favor would make federal judges “complicit in the greatest miscarriage of justice of all — the imprisonment and execution of innocent people.”

FILE - In this Jan. 7, 2020, file photo, Arizona Attorney General Mark Brnovich speaks at a news conference in Phoenix. An Arizona county that has resisted parts of a subpoena issued by the state Senate as it reviews how it handled the 2020 election must turn over everything the Senate wants or lose all its state funding, the state attorney general said Thursday, Aug. 26, 2021. Brnovich issued the decision after a Republican senator asked him if Maricopa County’s refusal to hand over routers, passwords and other items the Senate says it needs to complete the unprecedented partisan review violated state law .(AP Photo/Bob Christie, File)

Arizona Attorney General Mark Brnovich speaks at a news conference in Phoenix on Jan. 7, 2020.

Photo: Bob Christie/AP

The Problem of Innocence

Shinn v. Ramirez was argued on December 8 before a mostly empty court. The justices had already heard two hours of oral arguments that morning in a case involving religion and education, which provided a stark reminder of the court’s lurch toward the right; at one point, Justice Sam Alito invoked critical race theory.

Just before noon, Arizona Assistant Attorney General Brunn Wall Roysden III took his place. While the justices had spent most of the past year and a half working remotely before implementing strict Covid protocols to reconvene in person, Roysden, who goes by Beau, had spent his time challenging local mask and vaccine mandates on behalf of his boss, Arizona Attorney General Mark Brnovich.

AEDPA set a deliberately high bar for evidentiary hearings, Roysden told the court. “Congress thus spoke clearly, and the courts’ role is to apply the statutory language,” he said. “That no fact-finder could have found the prisoner guilty is not enough.”

Justice Clarence Thomas asked the first question. Although he’d been one of two dissenters when the court decided Martinez almost a decade earlier, he declared it “odd” to allow a defendant to bring a previously barred claim of ineffective assistance of counsel only to forbid them from presenting the evidence to support it. “It seems pretty worthless” to excuse the procedural default in the first place, he said. “To what end?”

Echoing Braccio’s argument at the 9th Circuit, Roysden said that a judge could simply rely on the state court record. Since AEDPA forbade Burgess from considering new evidence to decide Jones’s case, he should never have held an evidentiary hearing without ensuring that the state record was enough to decide the case. “It’s a fruitless exercise,” Roysden said.

“But it’s a basic syllogism,” Chief Justice John Roberts interjected. “The idea is, if you do get the right to raise the claim for the first time, because your counsel was incompetent before, surely you have the right to get the evidence that’s necessary to support your claim.”

Kavanaugh chimed in. If what Roysden was saying was true, then “what’s the point of Martinez?” he asked. “The court obviously carefully crafted an opinion to give you the right to raise an ineffective assistance claim, to make sure it’s considered at least once, and this would really gut that in a lot of cases.”

If AEDPA and Martinez could not be reconciled, “then at the end of the day, Martinez should be overruled,” Roysden replied, finally stating outright what Arizona’s critics had identified as the real goal all along.

Kavanaugh showed some resistance to the idea of overturning Martinez. “I mean, you have to assume that the court majority was unaware somehow of how this would play out,” he said. It’s not like the justices were unaware of AEDPA’s provisions when it ruled. “It’s hard to envision the court thinking that that would make any sense.”

Roysden again emphasized Congress’s intent when it passed AEDPA. “Innocence isn’t enough here,” he said.

“Whether you’re innocent or guilty, you have a right to a fair hearing. You have a right to an effective trial counsel.”

Justice Elena Kagan pointed out that AEDPA’s provision prohibiting evidentiary hearings was based on the assumption that a defendant was at fault for failing to develop the evidence in state court. “But that’s not always the rule,” Kagan said. In fact, the whole basis of Martinez was that the defendants in question were not at fault, she said, citing multiple passages from the decision.

“I think Martinez is not the last word,” Roysden replied.

The justices seemed skeptical of Arizona’s argument. But this was far from a guarantee. When attorney Robert Loeb stood to argue on behalf of Jones and Ramirez, reiterating that, under Martinez, they were not at fault for the failures of their post-conviction lawyers, Thomas once again declared the argument “odd.” Didn’t this “basically eviscerate the restrictions of AEDPA?” he asked. Justice Samuel Alito echoed the concern while tacitly acknowledging that there was no disagreement on the matter among the lower courts. “I certainly understand why the courts of appeals have interpreted Martinez the way they did,” he said. “But the fact remains that we have to follow the federal habeas statute. We have to follow AEDPA, unless it’s unconstitutional.”

Although he had joined the majority in Martinez, Alito now seemed to suggest that AEDPA had been in tension with their decision all along but no one had noticed: “The fact of the matter is that this whole … issue was not briefed by anybody in Martinez, and the court didn’t address it.” Roberts, who was also in the majority in Martinez, asked Loeb if he could point to “a case that says how we’re supposed to reconcile those two things.” Loeb responded that the two were not actually in conflict.

Kavanaugh returned to the problem of innocence. Although Loeb decried the state’s argument that a federal court should “turn a blind eye” to evidence showing Jones was wrongly convicted, Arizona countered that state law offered defendants an alternate means to prove their innocence. “I have no idea whether this is sufficient, but I just want you to respond to it,” Kavanaugh said. Loeb pointed out that no one had ever successfully availed themselves of this statute. But more importantly, “whether you’re innocent or guilty, you have a right to a fair hearing. You have a right to an effective trial counsel.” Telling a defendant to rely on such a law after a trial in which their constitutional rights had been violated was like a basketball game in which one team gets five players and the other gets one — but the latter gets to shoot the ball from half court. “That does not make the game fair, Your Honor.”

A Sense of Urgency

A ruling in Shinn is expected in the spring. If Jones prevails, it will place him in the same position he would have been in back in 2018 had Arizona prosecutors heeded Burgess’s order to release or retry him. With the state’s evidence against Jones thoroughly discredited, the Pima County Attorney’s Office is unlikely to seek a new trial.

Although the Tucson office has gained a reputation for being progressive in recent years, it has thus far declined to use its available recourses to exonerate Jones. The office’s newly revamped Conviction and Sentencing Integrity Unit, which reinvestigates possible innocence cases, refused to examine Jones’s conviction as it made its way through the federal courts. Asked whether the office might consider the case in the coming year, the new head of the unit, Jack Chin, wrote that “while I am aware of this case, I have not spent a great deal of time on it because it is not before this office now.”

Barry Jones in 2018.

Photo: Arizona Federal Public Defender
For those close to Jones, the lack of urgency is one of the hardest things to tolerate. “I just want it over for him,” said Andrew Sowards, who spent more than a decade working on Jones’s case as an investigator for the Arizona federal public defender. Sowards, who retired this year, has been convinced of Jones’s innocence since he first uncovered evidence that had been withheld by the state at trial. Although he thought the oral argument had gone as well as it could have for Jones, his frustration over Jones’s predicament was palpable. “We’ve asked so much of him,” he said. “I mean, that office has had him for 21 years now. You know, there’s only so many times you can ask for someone’s patience.”

In the years since Burgess overturned Jones’s conviction, the prosecutors who represented the state in trying to keep him on death row have moved on with their careers. One is now a judge in Pinal County, home to Arizona’s death row. Another is employed at the Pima County Attorney’s Office. In the fall, Burgess announced that he would retire at the end of this year.

Among those who once celebrated Jones’s vacated conviction, not all have lived long enough to see whether he will ever go free. On the night before the oral argument in Shinn, I discovered that one of Jones’s trial jurors, who I’d interviewed in 2017, died last year. Hildegard Stoecker was haunted by Jones’s conviction — and disturbed that Arizona would continue to fight his appeal. In an email in 2018, she reiterated that she never would have voted to convict Jones if she’d been aware of the evidence presented at the evidentiary hearing. She expressed hope that he would find the strength to move forward once his case was resolved.

“Barry Jones will have to find a way to reclaim his life after decades on death row,” she wrote. “I will have to find a way to deal with the fact that I was part of the system that made that happen.”

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