Shoddy police work, junk forensics, and a flawed defense converged in the case of Barry Jones. Did Arizona send an innocent man to die?
Almost four years after a federal judge overturned Barry Jones’s 1995 conviction, the U.S. Supreme Court invalidated the order directing Arizona to release or retry Jones and reinstated his death sentence. The ruling puts Jones on a path to execution in a state that just restarted its death machinery — despite significant evidence that he is innocent.
The 6-3 decision in Shinn v. Martinez Ramirez was authored by Justice Clarence Thomas, who wrote that Jones and David Martinez Ramirez, another man on Arizona’s death row, should not have been allowed to present new evidence in federal court showing that they had received ineffective assistance of counsel at trial. In Jones’s case, the evidence dismantled the state’s original theory of the crime, prompting U.S. District Judge Timothy Burgess to vacate his conviction. If not for the failures of Jones’s trial attorneys, Burgess wrote in 2018, jurors likely “would not have convicted him of any of the crimes with which he was charged and previously convicted.”
The Supreme Court’s May 23 ruling renders this evidence — and Burgess’s core findings, which were twice upheld by the 9th U.S. Circuit Court of Appeals — moot. The majority agreed with Arizona’s contention that under the 1996 Antiterrorism and Effective Death Penalty Act, or AEDPA, which sharply limits federal appeals, the hearing in Jones’s case should never have taken place. “In our dual-sovereign system, federal courts must afford unwavering respect” to trials in state court, Thomas wrote. Federal courts “lack the competence and authority to relitigate a state’s criminal case.”
The decision is a devastating blow to Jones, who has always insisted on his innocence. But it also slams the courthouse door on countless incarcerated people whose lawyers failed them at trial. “The court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel,” Justice Sonia Sotomayor wrote in a dissent joined by Justices Stephen Breyer and Elena Kagan.
Sotomayor described Thomas’s opinion as “perverse” and “illogical,” in part because it eviscerates the court’s own 2012 ruling in Martinez v. Ryan, another case out of Arizona. That decision created a much-needed remedy for defendants who received poor representation both at trial and in state post-conviction proceedings. Under the stringent rules governing federal appeals, a defendant who fails to challenge their trial lawyer’s performance in state court is forbidden from bringing that evidence to federal court. But Martinez created an exception. It held that if the failure to develop such evidence in state court was due to a post-conviction lawyer’s own ineffectiveness, the defendant should be excused — and allowed to bring an ineffective assistance claim in federal court.
The ruling in Martinez v. Ryan was narrow. Limited to those with “substantial” claims of poor lawyering, which is difficult to prove, it offered a possible path to relief, not a guarantee. Still, it was a rare lifeline to people on death row, many of whom had been represented by lawyers who were overworked, underpaid, and often unqualified. Notably, the 7-2 majority in 2012 included Chief Justice John Roberts and Justice Samuel Alito, neither of whom raised concerns at the time over how the decision might be reconciled with AEDPA’s procedural hurdles.
Yet both justices joined Thomas, one of two dissenters in Martinez, in weaponizing AEDPA to gut the 10-year-old ruling — an emblem of the court’s newly aggressive indifference to its own legal precedent. Law professor Leah Litman, an expert on AEDPA and constitutional law, compared the decision to the leaked draft opinion in Dobbs v. Mississippi, which stands to overturn Roe v. Wade. Both, she wrote in an article for Slate, make clear “that the court’s conservative supermajority is hellbent on smashing and grabbing precedent and constitutional rights no matter the consequences.”
Jones was sent to death row for the rape and murder of his girlfriend’s 4-year-old child, Rachel Gray. The child arrived at a Tucson hospital early in the morning on May 2, 1994, and was declared dead on arrival. An autopsy showed a blow to her abdomen, which ruptured her small intestine, developing into a fatal case of peritonitis. Investigators seized on Jones without considering how or when the child sustained the injury. At trial, prosecutors relied on circumstantial evidence and dubious forensic testimony to convince jurors that Jones had repeatedly assaulted Rachel the day before she died. His trial attorneys called no witnesses at the guilt phase aside from his 12-year-old daughter.
Jones’s case seemed like the perfect example of what the Martinez ruling was designed to address. Not only had his trial lawyers failed to investigate the medical evidence that provided the basis for his conviction, but his post-conviction attorney also failed to do the same. At Jones’s evidentiary hearing in 2017, medical experts debunked the narrow timeframe during which the state claimed Jones had assaulted Rachel, showing that her fatal injury could not have developed so quickly. A slew of additional witnesses shed light on shocking investigative failures by the Pima County Sheriff’s Department.
But in Thomas’s view, this hearing was nothing more than an “improper burden imposed on the states” by the Martinez decision. The “sprawling” seven-day hearing “included testimony from no fewer than 10 witnesses, including defense trial counsel, defense post-conviction counsel, the lead investigating detective, three forensic pathologists,” and more, he wrote. The hearing covered “virtually every disputed issue in the case, including the timing of Rachel Gray’s injuries and her cause of death. This wholesale relitigation of Jones’ guilt is plainly not what Martinez envisioned.”
Jones’s case seemed like the perfect example of what the Martinez ruling was designed to address.
In her dissent, Sotomayor pointed out what should have been obvious to the court that handed down the Martinez ruling just a decade ago: Such a thorough hearing “was necessary only because trial counsel failed to present any of that evidence during the guilt phase of Jones’ capital case,” she wrote. “The District Court’s hearing was wide-ranging precisely because the breakdown of the adversarial system in Jones’ case was so egregious.”
The notion that Jones’s hearing was a misapplication of Martinez only really made sense to those who believed that the ruling should be a remedy on paper alone. This had been at the heart of Arizona’s argument for years; prosecutors insisted that even if Martinez allowed Jones to use new evidence to bring forth a claim that his trial lawyers had been ineffective, he was not actually allowed to use that evidence to prove it.
The confusion over such logic was on display at the oral argument in Jones’s case before a 9th Circuit panel in 2019, during which the judges seemed stupefied. When they asked why a judge would allow a claim to be brought if they couldn’t consider the evidence, Arizona Assistant Attorney General Myles Braccio replied that a judge could just look to the state court record. “But that doesn’t make sense if the claim wasn’t developed in state court,” one judge replied. Another called it a “Catch-22.”
At the Supreme Court argument in December, the conservative justices clearly grasped the problem. Thomas kicked off the questions. Why give a defendant the chance to bring a previously barred claim of ineffective assistance of counsel only to forbid them from presenting the evidence to support it? he asked. “It seems pretty worthless.” Justice Brett Kavanaugh noted that in Martinez, 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.”
In the end, this is precisely what the justices decided to do. “While we agree that any such … hearing would serve no purpose,” Thomas wrote, “that is a reason to dispense with Martinez hearings altogether.” In a nod to Arizona’s repeated contention at oral argument that “innocence isn’t enough” for Jones to prevail in this case, Thomas cited the court’s decision in Herrera v. Collins, which famously held that there was no constitutional prohibition against executing someone for a crime they did not commit. In a case like Jones’s, he wrote, federal intervention is “an affront to the state and its citizens who returned a verdict of guilt after considering the evidence before them.”
I first wrote about Barry Jones in 2017, in advance of the evidentiary hearing in Tucson. At that time, there was no reason to suspect that Martinez was in peril. In fact, the Supreme Court had extended the ruling to apply to defendants in Texas and other states whose appellate procedures differed from Arizona’s. Although lawyers for incarcerated people were working hard to use Martinez to win relief for their clients, few had effectively availed themselves of the decision.
Jones was about to be an exception. In the years since his 1995 trial, the central evidence against him had largely fallen apart. Even the pathologist who conducted Rachel’s autopsy and took the stand against Jones at trial, Dr. John Howard, seemed to acknowledge that his testimony had been misleading. At the trial of Jones’s girlfriend, Angela Gray, who was sentenced to eight years in prison for her failure to take her daughter to the hospital the night before she died, Howard estimated that Rachel’s fatal intestinal wound was “most consistent” with occurring 24 hours or longer before her death. Yet at Jones’s subsequent trial, Howard said the injury was consistent with being inflicted 12 hours before Rachel’s estimated time of death — precisely the window the state used to implicate Jones.
Jones’s lead trial attorney, Sean Bruner, failed to confront Howard with the discrepancy. “I could have cross-examined him on that 24-hour/12-hour thing, and I missed that,” Bruner told me in 2017. For his own part, Howard explained in an affidavit that he only answered the questions he was asked on the stand. If trial attorneys had asked whether Rachel’s abdominal injury could have happened “more than 24 hours before her death, I would have answered the question in the affirmative.”
Burgess, the judge, seemed disturbed by Howard’s willingness to change his opinions from one moment to the next. “You understand that in these trials there was a lot at stake, right?” he asked at the 2017 hearing. Yet Howard continued to shift his analysis on the stand, saying that the abdominal injury could have taken place “a few hours, typical of a day or the same day as death,” while adding that “it could be just a few hours, it could be 24 hours, it could potentially, or at least in theory, be longer.”
The evidence that Jones had raped Rachel also failed to stand up to scrutiny. Although Howard said that injuries to the child’s vagina had been inflicted at the same time as her abdominal trauma, experts who reviewed the case for Jones’s federal defenders flatly disputed this. Dr. Janice Ophoven, a renowned pediatric pathologist, testified that the injury was likely “weeks old.” Another pathologist said that he would not even put it in the same context as the abdominal injury: “It’s not in the death timeline.”
His lawyers’ investigative failures “pervaded the entire evidentiary picture presented at trial.”
The vaginal injury was key to law enforcement’s original suspicion of Jones. He had been the one to drop off Rachel and her mother at the hospital, where Pima County Sheriff’s Detective Sonia Pesqueira examined the child herself, finding her covered in bruises, with blood in her underwear. Later that morning, before an autopsy had been conducted, Pesqueira aggressively interrogated Jones, accusing him of killing Rachel and falsely claiming that his own daughter had accused him of hurting the child. Yet she neglected to collect key evidence that could have connected the child’s injuries to the perpetrator, such as the clothes she was wearing the previous day. When part of a pair of underwear was tested for DNA years later, there was nothing that matched Jones.
At the evidentiary hearing, prosecutors insisted that Pesqueira had “followed the evidence of guilt for Rachel’s injuries, and that road led directly to Jones.” Besides, they said, her investigation was irrelevant since the hearing was limited only to the question of whether Jones’s defense attorneys had been ineffective. “Law enforcement has nothing to do with this case,” Braccio said.
But Burgess disagreed. “The evidentiary hearing in this case has demonstrated that the police investigation was colored by a rush to judgment and a lack of due diligence,” he wrote. “Effective counsel would have brought this to the jury’s attention.” For example, there were numerous alternate suspects at the Desert Vista Trailer Park in Tucson where Gray and Jones lived. Pesqueira had no answer for why she neglected to investigate any of them — or why she ignored evidence that Gray herself had physically abused her children.
But the most important witnesses were the experts who showed that Rachel’s fatal injury could never have led to her death so quickly. One was an independent pathologist who agreed back in 1994 to study the microscopic slides from Rachel’s autopsy but never received the materials from Jones’s trial attorneys. “Rachel’s small bowel laceration was not inflicted on May 1, 1994,” he wrote in a 2017 affidavit, and “Jones’s jury was misled to believe otherwise.” Another 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.”
Ophoven, the pediatric pathologist, pointed to the physical evidence as well as Rachel’s symptoms to show how the injury to Rachel’s small intestine had become deadly over time. Whatever caused the injury, Ophoven said, the subsequent inflammation typically associated with such abdominal trauma had spread slowly to her abdominal cavity, making it harder to detect. One neighbor had told investigators that Rachel looked gray and unwell on April 30 — two days before her death, which was an important clue. “The gray color is kind of specific to this kind of process,” Ophoven testified. Yet Pesqueira admitted that she dismissed the statement at the time. “I thought she was giving me the wrong day,” she testified.
In his 91-page order, Burgess wrote that such testimony could well have convinced a jury not to convict Jones of murder. His lawyers’ investigative failures “pervaded the entire evidentiary picture presented at trial.” But today, as far as the Supreme Court is concerned, this partial and distorted picture is the only one that matters. The evidence presented at the hearing has been completely swept away.
On the day after the Supreme Court’s ruling, Jones’s longtime attorney, Arizona Assistant Federal Defender Cary Sandman, was still grappling with what had happened. Although he’d swiftly assembled his legal team to discuss next steps, it would take another day for him to bring himself to read the decision. At 70, Sandman had hoped to welcome Jones to the outside world as one of the final capstones to a long legal career. Instead, he went to see Jones at the Arizona penitentiary where he remains with no clear way out.
The court’s decision fulfilled Sandman’s worst fears. “There was no reason to take that case unless they were gonna basically neuter Martinez,” he said. After the oral argument in December, Sandman echoed what legal observers were saying: The justices had asked all the right questions. But in the end, this only made the ruling more cruel. “The majority’s Kafkaesque decision will condemn many to wrongful imprisonment, or worse, death,” Sandman said. “All in the name of state’s rights.”
“Putting on a brave face, but underneath I am as scared as I have ever been.”
For attorney Bob Loeb, who argued for Jones before the court, Thomas’s one-paragraph summary of the facts in the case was infuriating to read. “On May 1, 1994, Barry Lee Jones repeatedly beat his girlfriend’s 4-year-old daughter,” it began. Never mind that this time frame and the medical claims it relied on had been repeatedly debunked. In a statement, Loeb wrote that the decision was “tragic for Barry Jones, who remains in prison notwithstanding evidence which the district court determined undercut the murder charge against him — evidence showing that the conviction was based on assertions that were scientifically untrue.”
If there is any hope for Jones going forward, it could lie with the office that sent him to death row in the first place. In the years I’ve reported on Jones’s case, the Pima County Attorney’s Office, which is home to a Conviction and Sentencing Integrity Unit, has repeatedly sidestepped inquiries as to when the office might reinvestigate the conviction. In an email last year, the head of the unit, Jack Chin, wrote that while his office “has a general policy against the death penalty, and all capital sentences which are in our jurisdiction and responsibility will be looked at closely and carefully,” he had “not spent a great deal of time” looking at Jones’s case.
But after the Supreme Court’s ruling, Chin wrote that the CSIU had no plans to revisit the case. “I have checked into it, and under current protocol, the AG’s office will handle further proceedings, not PCAO, so I do not expect that I or anyone else in this office will be involved.”
In the meantime, Jones is starting to see neighbors marched to the execution chamber. After an eight-year hiatus on executions, the state killed 66-year-old Clarence Dixon by lethal injection earlier this month, struggling for 25 minutes to find a vein. Next month Arizona plans to execute another man convicted in Tucson who insists upon his innocence. In an email shared by Sandman, Jones wrote that he was “still processing the news” about the Supreme Court’s ruling. “Putting on a brave face, but underneath I am as scared as I have ever been,” he wrote. “If they can put me back on death row, and they did, then there ain’t a doubt in my mind that they could justify killing an innocent man.”
Update: May 28, 2022
This article has been updated to include a comment received after publication from the head of the Conviction and Sentencing Integrity Unit within the Pima County Attorney’s Office.
Shoddy police work, junk forensics, and a flawed defense converged in the case of Barry Jones. Did Arizona send an innocent man to die?