More than six months have passed since the U.S. Supreme Court reinstated Barry Jones’s conviction and death sentence despite evidence of his innocence. In that time, Arizona has executed two more of Jones’s neighbors — three total in 2022. It has been “a very difficult time,” Jones’s longtime attorney Cary Sandman told a federal judge in September. At 64, having spent nearly half his life behind bars for a crime he insists he did not commit, Jones has struggled to find reasons to be hopeful.
Now there may be light at the end of the tunnel. On December 6, a settlement conference will take place at the federal courthouse in downtown Tucson. Jones will be transported from death row to attend. Unlike past hearings in his case, the proceedings will be closed to the public, comprising a series of negotiations between Jones’s legal team and attorneys representing the state. The Pima County Attorney’s Office, which first prosecuted Jones in 1995, will also attend.
Such meetings are common in civil disputes, which are frequently resolved through mediation. But they are unusual in death penalty cases. The decision to undertake the negotiation was made at a hearing earlier this year, where U.S. District Judge Timothy Burgess encouraged both parties to try to find a way to end the protracted legal fight. “I do think it would be in everybody’s best interest, including society’s best interest, if we can resolve this case,” Burgess said.
Burgess has presided over Jones’s case since 2016. Recently retired as the chief U.S. district judge for Alaska, he was appointed to the case due to a conflict of interest: One of Jones’s attorneys at trial had since become a federal magistrate judge, leading Arizona’s federal district judges to recuse themselves. The settlement conference will be overseen by a different Alaska judge, who will act as a mediator.
Jones was sent to death row in 1995 for killing and sexually assaulting his girlfriend’s 4-year-old daughter, Rachel Gray. The evidence against him was thin, based on a narrow time frame during which Jones was seen taking trips with Rachel in his work van the day before she died. At an evidentiary hearing in 2017, lawyers for Jones exposed Pima County investigators’ rush to judgment and presented powerful exculpatory evidence that his trial lawyers had failed to uncover. Most crucially, they called expert witnesses who said that Rachel’s fatal injuries could not have been inflicted so close to her death. In 2018, Burgess vacated Jones’s conviction. If not for the failures of his trial attorneys, Burgess wrote, there was “a reasonable probability that his jury would not have convicted him of any of the crimes” that sent him to death row.
Burgess ordered Arizona to retry or release Jones. Instead, the state attorney general appealed the decision all the way to the U.S. Supreme Court, arguing that under the federal Antiterrorism and Effective Death Penalty Act, Burgess should never have granted Jones the hearing that allowed him to present the new medical evidence. In a 6-3 ruling reversing the court’s own precedent, the justices agreed.
The decision was devastating for Jones, his family, and his legal team. It also dealt a huge blow to countless incarcerated people who had received poor lawyering at trial and in state post-conviction proceedings. In an article for the journal of the New York Bar Association, Sandman wrote that the decision “established a new precedent that will insulate many wrongful convictions and constitutionally tainted death sentences from federal review.” He called on Congress to reverse the ruling — and vowed to keep fighting for Jones.
Among those who have expressed dismay at the Supreme Court’s ruling is an unlikely voice: Rachel Gray’s older sister, Becky, who testified against Jones at his 1995 trial. In a two-part episode of the podcast “Conviction” released last month, Becky, now in her late 30s, told producers that she had begun to question Jones’s guilt after reading The Intercept’s coverage of the case. “For so long I hated this guy, and he could very well have been innocent,” Becky said. “And now, thanks to the Supreme Court, there’s not even anything that can be done.”
Becky’s recollections of Jones were consistent with what many others have shared with The Intercept and Jones’s legal team over the years. She described her mother, Angela Gray, as physically abusive — Gray was sentenced to eight years in prison for child abuse following Rachel’s death — while recalling Jones as patient with Rachel. “If she wanted to talk about anything, he would stop what he was doing and he would sit there and talk to her,” Becky said. Her little sister liked to watch Jones work in his van, she said. “I’m pretty sure she probably knew how to rebuild the transmission.”
A few days before Thanksgiving, lawyers representing the Innocence Network sent a letter to the Pima County Attorney’s Office. “We are writing to provide our perspective on the state’s ethical duties as it approaches the upcoming settlement conference,” the letter read. It noted Burgess’s conservative credentials; a former U.S. attorney appointed to the federal bench by George W. Bush, Burgess reviewed dozens of petitions from incarcerated people challenging their convictions and sentences during his tenure, granting relief in only one case: Jones’s.
More importantly, the letter emphasized the evidence that convinced Burgess to overturn Jones’s conviction in 2018. “While the state may have been largely unaware of much of that evidence when it made its initial charging decision and at the time of trial, its current knowledge of the evidence … triggers the ethical obligations of prosecutors to correct erroneous convictions and seek exoneration when there has been a miscarriage of justice.” This obligation is especially important when a person’s legal options have been effectively exhausted, the letter went on. Prosecutors “are duty bound by their professional ethics, and hopefully most would feel bound by their own conscience, to take affirmative action to correct the taint of an unjust conviction.”
Until now, the Pima County Attorney’s Office has declined to intervene, insisting that there is little it can do as long as Jones’s case remains in the hands of the Arizona attorney general. On Thursday, the new head of the Pima County Conviction and Sentencing Integrity Unit, Brad Roach, maintained that the attorney general retains jurisdiction in the case. But he acknowledged that “there have been serious questions raised” and said that his office is committed to a just outcome. The Pima County attorney is “happy to do whatever it takes to make sure justice is done in this case.”
In the meantime, Jones is spending another holiday season on death row. On Thanksgiving the prison served him turkey and a piece of pie. During a visit two days later, his daughter, Brandie, broke the news that Jones’s 35-year-old nephew had recently died. He put on a strong face, she said. “But I could see that deep down it was hurting him more than he was letting on.” Although Jones does not seem optimistic about the settlement conference, it could be his best chance of reuniting with his family in the coming year. “I’m trying to keep his hopes up.”