A 4-year-old girl was killed in Tucson. Before the medical examiner had even determined a cause of death, Barry Jones became the sole suspect.
On a Monday morning in early September, Hildegard Stoecker was on her front patio in southwest Tucson, where she likes to spend the sunrise. In a few hours, the sun would beat hard on the Arizona desert and temperatures would hit 100 degrees. But at 6 a.m., it was cool. A soft glow illuminated the peaked foothills of Tucson Mountain Park behind her home; in her front yard, cacti and Caesalpinia bushes were bathed in pink light and a hummingbird hovered by the window.
Stoecker was not feeling serene. On Friday she had received a message about a man on Arizona’s death row, whose name was all too familiar. Barry Lee Jones was convicted in 1995 for the rape and murder of a young girl. It was the kind of unfathomable crime that Stoecker felt should send someone to hang “from the highest tree,” she recalled. The trial judge agreed and sentenced Jones to die.
But 22 years later, Stoecker was disturbed to hear that Jones was still on death row. Not because she thought he should have been executed by now. In fact, it was the opposite: She had mistakenly assumed he’d probably been removed from death row — maybe even exonerated. “What you’re saying bothers me quite a bit,” she said. The sentiment was surprising coming from Stoecker. She was one of the jurors who convicted Jones.
Some 10 years ago, she explained, an investigator with the Arizona Federal Public Defender’s Office had visited her at home. He was interviewing trial jurors as part of the appellate process in Jones’s case. Her memory of the meeting is vague. But it made a strong impression, bringing up old doubts about the evidence presented at trial. She had always felt that Jones’s lawyers did a poor job representing him. The meeting made her think there had been other flaws in his case — and the state would be forced to address them.
Stoecker is in her 70s, with cropped gray hair. She wore jeans and a T-shirt with a bald eagle on it and was barefoot, seated in her motorized wheelchair. Decades ago, she was diagnosed with an incurable lung condition she contracted while working at a ceramics plant. At the time of Jones’s trial, she had just begun her treatment and was increasingly unable to work. She got involved in animal welfare. That morning, her rescue cockatoo, Max, squawked insistently from inside the house. Stoecker explained that Max had been traumatized after seeing “a bird friend” killed by dogs and had plucked out his own feathers. She was fostering him until he found a new home.
If Stoecker’s natural compassion made her an unlikely death penalty supporter, Jones’s sentence had not been for her to decide. In those years, judges, not juries, imposed the death penalty in Arizona. “Whether we as a jury would’ve sentenced him to death, I don’t know,” she said. But there was another reason capital punishment made Stoecker uneasy. When she was a teenager in San Francisco during the 1950s, California executed a man named Burton Abbott for raping and murdering a 14-year-old girl. Abbott swore he was innocent; like Jones, his conviction relied heavily on circumstantial evidence. On the day he died, the governor called the prison to grant a last-minute stay, only to find the execution was already underway.
“I don’t know that I was fully convinced he was guilty,” Stoecker said about Abbott. But she was only in high school — “What did I know?” She did not give the death penalty much thought after that. Not until the trial of Barry Jones.
“This is something that’s been with me for a long, long time,” Stoecker said. The possibility that she might have made the wrong decision distressed her.
“I realize a lot of people just put it out of their minds and go on with their lives,” she said. A friend had told her, “‘Look, you did the best you could at the time. You know, just kinda let it go.’ And I can’t let it go.”
Since the day of his arrest in 1994, Barry Lee Jones has insisted he did not rape or kill his girlfriend’s 4-year-old daughter, Rachel Yvonne Gray. Jailed on the same day the child’s lifeless body arrived at a Tucson hospital, Jones admitted she’d been injured on his watch, repeatedly saying she had fallen from his parked yellow work van the day before, hitting her head. Jones said Rachel told him a little boy had pushed her out. But even if it was true, that did not explain the bruises covering her body, or the abdominal injury that took her life.
Almost no physical evidence linked Jones to Rachel’s injuries — and there was nothing to show he was guilty of rape. But when children die under mysterious circumstances, early suspicion typically falls on the adults who were closest to them in their final hours. On that day, witnesses said, that person was Jones. He and Rachel’s mother, Angela Gray, were tried back to back in 1995; Gray was convicted of child abuse but acquitted of murder. Jones was sentenced to die.
After more than 20 years insisting upon his innocence, Jones won a rare evidentiary hearing from a U.S. district judge, set to begin October 30. Attorneys with the Arizona Federal Public Defender’s Office plan to argue that Jones’s trial was fundamentally unfair, marred by ineffective assistance of counsel in violation of his Sixth Amendment rights. Moreover, they say, bad lawyering at the post-conviction level left the trial attorneys’ failures unaddressed, resulting in a horrible miscarriage of justice. If his lawyers succeed, Jones could win a new trial — or even be released from prison.
Poor defense representation and a lack of physical evidence are both hallmarks of wrongful convictions. The files in Jones’s case reveal many more. They show a rush to judgment, tunnel vision by the Pima County Sheriff’s Department, and a shifting theory of the crime by the state. Prosecutors relied on the most dubious kinds of evidence, from flawed forensics to the eyewitness accounts of young children. Vital pieces of evidence were lost, concealed, or never collected to begin with. More recently, DNA testing on one key item has failed to implicate Jones.
In a state where eight people have been exonerated from death row, Arizona prosecutors have fought against reopening Jones’s case, even as the basis for his conviction has fallen apart. As his defense attorneys argue, “Jones was convicted based on a very specific timeline, which was grounded on a single factual premise: that Rachel was fatally injured and sexually assaulted while she was alone with Jones on portions of Sunday, May 1, 1994.” The total time frame was no longer than four hours, during which Jones was seen taking the child on short trips in his van. But several medical experts hired by defense attorneys have concluded that Rachel’s fatal injury could not possibly have occurred within the narrow window presented by the state.
More significant still, in a recent letter to Jones’s lawyers, the Arizona Attorney General’s Office conceded that the current Pima County medical examiner “did not dispute the conclusions of your experts.” And the forensic pathologist who took the stand against Jones in 1995 has acknowledged that his testimony was flawed. Jones’s attorneys are certain that if the case were tried again, “no juror acting reasonably would ever find Jones guilty beyond a reasonable doubt.”
For his part, Jones admits he was no upstanding citizen before he went to prison. But he did not kill Rachel Gray. “I was guilty of a lifestyle,” Jones told me. “I was a thief. I was a dope fiend. … I wasn’t looking out for nobody but myself. And I hold myself responsible, because she died under my roof, on my watch. … I blame myself every day for that.”
It was 6:16 a.m. on May 2, 1994, when 30-year-old Angela Gray arrived in her nightgown at Kino Community Hospital in south Tucson, carrying her youngest child, Rachel. The frail 4-year-old wore pink pajamas with feet. She was pale and had no pulse. Emergency room doctor Steven Seifert was nearing the end of his overnight shift when he entered the examination room. He quickly realized there was nothing to be done. The child was cool to the touch, he would later testify, and rigor mortis had already begun to set in. “She was essentially dead on arrival.”
She was also covered in injuries. There were abrasions and bruises all over her body, Seifert testified, along with other disturbing signs of trauma. Seifert told Gray that her daughter was deceased. Then, as he was obligated to do under the law, he called the police.
Tucson police officer Richard Law was the first to arrive at the hospital. “It was my opinion that, just from looking at her, she had been severely beaten,” he later said in an interview with defense attorneys. He approached Gray, but she was not all there, seemingly fixated on smoking a cigarette. She was thin, with dirty blond hair, and covered with a blanket. Gray told Law that her boyfriend, Barry Jones, had dropped her and Rachel off at the hospital. He supposedly was going to check on the children they had left at home, but he had not come back yet. “I just thought it was very strange,” Law said.
At 7:44 a.m., a second Tucson police officer, Michael Thomson, took a formal statement from Gray in the doctor’s lounge. Gray said that she and her three children lived with Jones and his daughter in the Desert Vista Trailer Park on East Benson Highway, just 4 miles south. The two had met a few months earlier. Jones was a mechanic, Gray said. She did not know his birthday. “Um, um, he’s like 35 years old.”
Gray had no explanation for what had happened to her daughter. She had slept through the previous day, she said, and did not wake up until early evening. “I can tell you what I was told happened,” Gray said. When she woke up, Jones told her that he had put Rachel down for a nap; she had been playing with some kids in his van when she fell out of the vehicle, hitting her head. Jones reassured her that Rachel was OK. But later, she saw Jones returning in his van with Rachel. He said her head had started bleeding, and he had taken her to the fire station just down the street. Paramedics had taken out her braids and rinsed her head, reassuring Jones that head wounds bleed a lot.
Rachel seemed OK, but later she began vomiting, Gray said. Rachel said she was thirsty, but “every time I’d give her a drink, she’d, like, drink it real fast and throw up.” Later that night, she noticed bruises on her chest. Gray said she asked Rachel if someone had hurt her, “and she said the little boys that pushed her out of the van.”
Rachel went to sleep in the bed Gray shared with Jones. The next morning, Gray found her in her own room, buried under the covers. When she removed the sheets, Rachel would not wake up. Gray yelled for Jones. “I remember screaming that we didn’t have time,” she said, “and to just get me to the hospital, and he could come back and get the kids.”
But Jones had not come back to the hospital. “I mean, why wouldn’t he come back?”
Thomson asked Gray about her relationship with Jones. Had he ever hit her? Gray said no. Thomson asked how they disciplined the kids and Gray chuckled. “If the girls would get in trouble for something, it’s ‘You have to stay in your room over this weekend, no TV’ and stuff, and that usually lasts for two or three hours, and he lets them out of the room.” With her son, Jones sometimes took away video games, she said. But Jones was gone a lot and wasn’t usually in charge of the children. “I’ve never seen him lay a hand on any of the kids.”
It was shortly after 8 a.m. when Pima County Sheriff’s Detective Sonia Pesqueira — known then as Sonia Rankin — arrived at Kino Hospital. Thirty-one years old and five months pregnant, Pesqueira had started her career as a campus police officer at Pima Community College, coordinating the rape prevention program. She joined the sheriff’s department in 1984. Her personnel file would show an early passion for investigating sex crimes. One retired detective who worked on the Jones case told me Pesqueira was “top notch,” a zealous defender of children.
Thomson told Pesqueira what he’d learned. From that point on, the investigation belonged to Pesqueira and the Pima County Sheriff’s Department.
An autopsy was scheduled for the next day, but Pesqueira didn’t wait to speak to any doctors. “I do my own examination,” she would later tell a grand jury. “Medical personnel are not in the room.” Pesqueira removed Rachel from the body bag. “I observed numerous and varied contusions on the victim’s torso area to include the abdominal and upper chest area,” she wrote in a report. “There were contusions to the face area, eyes and forehead. The contusions to the area around both eyes appeared to be in varying stages.” There was dried blood on Rachel’s head. Then Pesqueira checked between her legs. There was “extensive injury” inside her vagina, she found. There was also blood.
Pesqueira put Rachel’s pajamas and underwear in a paper bag. Then she went to find Angela Gray.
East Benson Highway cuts a southeast line across Tucson. In its heyday, it was the city’s main drag, lined with “snowbird motels,” cheap roadside lodging with iconic neon signs that attracted Northerners in winter. But along the 5-mile stretch that was home to the Desert Vista Trailer Park, Interstate 10 was built parallel to the road, cutting it off from traffic and isolating its businesses. The area took a turn for the worse. “To most Tucsonans now,” the Arizona Daily Star reported in 2006, “Benson Highway is just a seedy stretch of road on the way to the airport, a place to punch the door-lock button if they hit a red light.”
The Desert Vista was located toward the end of the highway, where rolling desert attracted people who lived off the grid, forming makeshift transient camps. The area could be dangerous. The year after Rachel Gray died, a 20-year-old woman was found raped and strangled at a nearby camp.
Pima County Sheriff’s Detective George Ruelas arrived at the trailer park on the morning of May 2. At around 8:40 a.m., according to his report, Ruelas went to the Rural Metro Fire Station, where Jones told Gray a paramedic had examined Rachel the day before. The station log for Sunday, May 1 “showed no record of contact with Rachel Gray,” Ruelas wrote. The fire captain told Ruelas that as far as he knew, no one there had encountered the little girl.
Jones had lied to his girlfriend.
By the time Ruelas sat down with Jones’s 11-year-old daughter, Brandie, later that morning, rumors were flying at the Desert Vista. Police had found her father at a transient camp nearby. Their home had also been searched. The single-wide trailer was surrounded by junk: old tires, slabs of wood, and large appliances scattered in front of the chain-link fence. Inside it was dirty and cluttered, with pockmarked wood paneling covering the walls.
“I have a question to ask,” Brandie said. “Um, what kid did my dad hurt?” Ruelas said he did not know if Jones had hurt any kid. “’Cause that’s what everyone’s tellin’ me,” Brandie said, but “my dad didn’t hurt any kids.”
Brandie told Ruelas that Jones did not hit her, Gray, or any of the kids. She also shared another thing: On Sunday, Rachel said that a boy had hit her in the stomach with a metal bar the day before. A misunderstanding ensued — Gray thought Rachel meant that Jones had hit her, and the two got into an argument. But Rachel meant a little boy, Brandie said. She did not know who Rachel was talking about. But she did see a bruise on Rachel’s stomach.
Meanwhile, another detective was talking to Becky, Rachel’s 10-year-old sister, at the sheriff’s department. Becky said that she had come back from a friend’s house Sunday evening and saw Rachel on the couch, with a washcloth on her head. Her mother asked Rachel how she got injured, and “she kept saying, A boy pushed me out of the van and hit me with a metal bar in the stomach,” Becky said.
The detective asked Becky if she thought Jones would ever hurt Rachel. “No,” she said. Had he ever hit her or “touched any of your private parts or anything?” Again Becky said no. The detective asked if both Gray and Jones had stayed home on Sunday. Becky said her mom had slept all day, but Jones had gone to a friend’s house and to the store. Did any of the kids go with him? “Rachel,” Becky said.
“Just her and him?” the detective asked. Yes, Becky said.
Gray repeatedly told Pesqueira that she could not picture Jones hurting Rachel. The night before, Rachel had asked if she could sleep in the middle of the bed “’cause she wanted to sleep by Barry too.” It sounded stupid now, Gray said, but Jones made her feel safe. When her ex used to get drunk and beat her up, other men would never intervene. But Jones protected her. “And nobody’s ever done that.”
Gray recalled a couple of days when Rachel seemed to be afraid of Jones. And Rachel had recently come home with a black eye, which Becky blamed on Jones, saying he’d hit Rachel with a rake. But Rachel said it wasn’t true. Gray explained that Becky, who was going through a “lying phase,” sometimes got jealous and picked on her little sister. Gray discovered she had been using Jones to scare Rachel, threatening that if Rachel told on Becky about anything, Jones would hurt her.
Gray said she did not know how Rachel had gotten so many bruises on her body. “Angela, did you cause any of these injuries?” Pesqueira asked. Gray said no. Then Pesqueira told her that Ruelas had found no record of Jones taking Rachel to the fire station. “Oh no,” Gray said.
The interrogation of Barry Jones is hard to watch.
At 10:11 a.m., Pima County Sheriff’s Detective Michael O’Connor leads him into a small interview room. Jones is short, just 5 foot 7, and disheveled. He is wearing a red T-shirt and jeans that hang loosely from his hips. His long, scraggly hair is thinning on the top. The detective who brought him from the transient camp had found him passed out, later describing him as distraught and “extremely wobbly.”
“I don’t know if anyone’s told you yet, do you know why you’re down here?” O’Connor begins. “No,” Jones answers. “I took the little girl to the hospital and her mom this morning,” he says. “I need to see my old lady to the baby.”
Then O’Connor tells him that Rachel is dead.
I’m not lying, Barry.
She gonna be all right. No. (starts crying) No. No. No. No. No. No. No. She’s all right. She’s all right. No. No. No. No. God.
Jones says he wants to go see Rachel. O’Connor says that Rachel has wounds that are “consistent with, um, uh, an abused child.” Jones screams.
Now, Barry …
No, no, no, no, no.
Barry, please listen to me. I don’t know what happened, OK. Or how these things may have happened to this child, OK. I do know …
She’s only 4.
Jones sobs and buries his head in his hands. O’Connor asks him to compose himself and then reads him his Miranda rights. While O’Connor briefly leaves to get a box of tissues, Jones remains slumped over the table, moaning.
Pima County sheriff’s officers would later describe suspicions about Jones’s hysterics. “I felt he was acting,” Sgt. Michael Downing said at a pretrial hearing. “He started to slam his head against the table. I thought it was a joke.”
When he spoke, Jones answered questions in sobbing, guttural bursts. At times he seemed dazed, offering rambling memories of Rachel: how he sang her a lullaby but did not know all the words; how he built a bed for her — and she “was all proud, proud of that little Rachel bed. Boy, made me feel so good, you know. She liked her little Rachel bed.”
Screenshots: Pima County Sheriff’s Department
Over the first two hours in the interrogation room, O’Connor was able to elicit some basic information from Jones. Much of it matched Gray’s general account. Jones said he had napped on and off on Sunday and at one point saw Rachel fall out of the van, where she had been playing with two little boys. “And she said one of ’em pushed her out,” he said. She didn’t cry, but she had a knot on her head. He gave her half a Tylenol or an aspirin and she went back out to play. Later Rachel went with him to get some frozen burritos for dinner at the Choice Market nearby. “She carried the milk for me,” he said.
Sometime after that, Jones said, neighbors noticed that Rachel looked sick. After laying her down for a short nap, he noticed there was blood on her pillow, which scared him. He loaded her into his van and headed toward the Rural Metro Fire Station. But there was a police officer there, Jones said — and his driver’s license was suspended. He drove on to the Quik Mart down the street, where he saw an EMT. The man shined a light in Rachel’s eyes. “He said something about her, her eyes being reactive equal, reacting equal, something,” Jones said. The EMT told him to keep ice on Rachel’s head, and “that’s what I done.”
Jones said he had noticed the bruises on Rachel’s stomach when Gray put her in pajamas the night before. O’Connor asked about Rachel’s other bruises. “What other bruises?” Jones asked. There were bruises that appeared to have been healing for weeks, O’Connor said. “I don’t know,” Jones said. “Her mama told me she bruised real easy.” Gray had not wanted to take Rachel to the hospital, Jones said. “She just said last night, I’d take her to the emergency room, but they’d take her away from me.”
O’Connor asked Jones if he had ever spanked Rachel. “Never,” he said. Jones admitted yelling at the kids — he sometimes called Rachel a “whiny butt” and sent her to her room — but he didn’t believe in physical punishment. “It don’t serve no purpose.”
Nearly three hours into the interrogation, Pesqueira arrived. Things soon escalated. She told him that Becky had accused him of hitting Rachel. She also implied that Brandie had made accusations, too. “Did you know that your own daughter has said certain things about what you did to her?” Pesqueira asked.
I did to who?
Did to Rachel.
No. I never done nothing to Rachel.
Did you know that you could be facing first-degree murder charges? First-degree murder, Barry, that’s what we’re talking about.
You. You. Because everything points to you, Barry.
Jones swore he did not hurt Rachel. But “I let her die,” he cried over and over again. Detectives insisted he was lying. Pesqueira called him a “piece of shit.” Downing suggested Jones had lost his temper. “She pissed you off, didn’t she?” he asked. “Rachel was a good girl,” Jones cried.
At one point, Downing said Rachel was looking down from heaven unable to rest, asking Jesus why Jones would not admit what he did. “She would never lie to Jesus,” Jones said.
After almost five hours, the interrogation ended. Jones was put in handcuffs and booked for first-degree murder and child abuse.
In a front-page story on May 3, 1994, the Arizona Daily Star reported on the arrest of Barry Jones. It mentioned Rachel’s alleged fall from the van, but also quoted an anonymous neighbor who described how Rachel had walked into her camper trying to vomit. “Her face was a greenish color, then it turned white,” she said. Jones “looked real concerned for her.”
An autopsy was conducted that same day. Dr. John D. Howard, a pathologist with the Pima County Medical Examiner’s Office, conducted the procedure while Pesqueira watched.
There were signs Rachel was not well cared for. She was underweight, just 28 pounds. Her baby teeth showed decay. The external injuries included “blunt genitalia trauma” and a deep cut on her scalp. But the head injury was not what killed Rachel. Instead, Howard found “an irregular laceration of the descending portion of the duodenum” — part of Rachel’s small intestine. It was a relatively rare injury, commonly associated with car accidents, and likely caused by a sharp blow to her stomach. “Death was caused by small bowel laceration due to blunt abdominal trauma,” Howard wrote in his autopsy report.
Meanwhile, Pima County detectives kept interviewing children. A woman named Norma Lopez had contacted the sheriff’s department, saying that on May 1, around 4 p.m., her 8-year-old twins — a brother and sister — came home from the Choice Market near the Desert Vista. They said they had seen a man with “flying hair” hitting a little girl while driving a van. The girl was crying — “They could hear her and they could see it,” Lopez told the detective. When she saw the news about Jones’s arrest on TV, “I knew right away the kids saw the same guy.”
Interviewing young children can be fraught with risk. An unqualified questioner can extract unreliable or imagined recollections. At the time of Rachel’s death, coercive or suggestive interviewing of children had led to a rash of lurid, elaborate, and false accusations about ritual sexual abuse at daycare centers across the country. The resulting wrongful convictions are still being overturned.
Despite the existing research in 1994 recommending best practices for interviewing children, the Pima County Sheriff’s Department had no such protocols in place. The twins were interviewed in each other’s company, with their mother present. Both said they saw a man hitting and elbowing a little girl while driving a van. When Laura, the sister, said she had not watched the 5 o’clock news to confirm that Jones was the man she saw, Lopez reminded her that she had. The detective asked Laura if she really remembered watching the news. “A little,” she said. When Ray, the brother, couldn’t estimate the age of the man in the van, Lopez brought up her own brother, who was in his 30s. “OK, was he about like your uncle?” the detective asked. “Uh huh,” the boy said.
The Lopez twins would become key witnesses for the state.
Becky, too, would become an important witness against Jones. After her mother was arrested on May 3, she and her 14-year-old brother, Jonathan, were taken in by their aunt Donna Foster. The next day, Foster contacted detectives, saying Becky had something new to share. In a videotaped interview, Becky recalled overhearing Rachel telling her mother that “Barry hit her with a metal shoe bar in the head.” Becky didn’t see the shoe bar, or really know what a shoe bar was. But she heard her mom and Jones arguing about it. “Becky states she was present when Rachel told their mother that Barry had caused the injuries to her,” the detective wrote in a report.
While detectives collected statements against Jones, signs began to surface that Gray abused her kids. When Foster picked up Becky and Jonathan from school after their mother’s arrest, she found them unkempt and wearing clothes they had outgrown, according to an affidavit she later provided to Jones’s federal defense attorneys. The kids ate voraciously, awed by the amount of food she had at her home. Before long, Foster called Child Protective Services with concerns that Becky had suffered abuse and “possible inappropriate sexual touching,” according to a subsequent medical report. Becky told doctors that her mother hit her in “all sorts of places,” including her stomach and face.
Angela Gray’s own upbringing was marked by trauma. According to Foster’s affidavit, Gray’s 18-year-old mother killed herself when Gray was young; her father moved her from Massachusetts to Arizona, only to give her up for adoption. By the time she was a teenager, Gray was doing drugs and living on the streets, Foster said. Gray’s sister had told police at the hospital that Gray seemed depressed and ill-equipped to raise her kids.
The consequences were particularly dire when it came to Jonathan, who was born deaf. Gray did not provide the care he needed to learn to communicate; when he was little, Foster remembered Jonathan “screaming at us because he could not speak.” It was not until he was 12 years old that he was enrolled at the Arizona School for the Deaf and Blind, where administrators found “he could only read at a second-grade level,” according to Foster.
During Jonathan’s own interview with Detective Ruelas on the day Rachel died, he seemed confused, asking if his sister was going to stay in the hospital. He had gone to school that morning. No one had told him what was going on. Through an interpreter, Jonathan referred to Jones as his “friend,” saying at one point he had pulled Rachel’s hair, but “not hard.” Jonathan said Jones never spanked Rachel, just sent her to her room.
Jonathan would never take the stand. Nor was the evidence of Gray’s abuse admitted at Jones’s trial. Jurors never heard about it.
Upon arriving at the Pima County Jail, Jones wished aloud he could trade places with Rachel. He was put on suicide watch. Shortly afterward, Jones received notice of his indictment and the state’s plan to seek the death penalty. He also received a letter from Gray.
“Angela baby, if I could tell you what happened to Rachel I would in a minute and we would not be where we are,” Jones wrote back. He told her what happened after he left her at the hospital. First, he had picked up the kids and taken them to his twin brother Larry’s house. Then he asked a friend to go with him to see a man named Ron, who lived in a school bus at a nearby transient camp. He planned to return to the hospital, but Ron told him he was having a “breakdown” and gave him a pill to calm him down. Jones passed out. The next thing he knew, he was being arrested.
“Babe I lied about the fire station,” Jones wrote. He explained that he’d seen a sheriff’s officer and wanted to avoid him since he had no license or plates. He apologized, “but Rachel’s head was bleeding and Fire Station and Paramedic sound much more comforting to a mother than Quik Mart and EMT.” The thought that someone hurt Rachel made him feel sick, he wrote. “It makes me think I should have hung around the house more often and not been gone so much.”
Meanwhile, a private investigator named George Barnett began working on the case, hired by Jones’s court-appointed attorneys. An Air Force veteran who did three tours in Vietnam, Barnett had worked as a Tucson police officer until opening his own practice. In mid-May, he visited the Desert Vista Trailer Park.
Barnett recorded his findings in a 16-page report. He heard the same thing again and again: Jones was not known for physical violence and neighbors trusted him with kids. A manager of the trailer park said he was quiet and polite, and seemed to have a good relationship with his daughter, Brandie. One woman said Jones would often help his neighbors with repairs, asking only compensation for the parts. If he lost his temper, he just walked away — and “his payback would be in the form of never assisting or helping that person who made him angry,” Barnett wrote.
But Angela Gray was another story. Several people told Barnett she yelled at her children when Jones was not around. One neighbor said that she had stopped letting her daughters play at Jones’s home after Gray moved in. She believed Jones wasn’t really in love with Gray but tolerated her because he didn’t want to kick her out with her children. “I can’t believe that Barry had anything to do with harming that child,” the neighbor told Barnett.
Not everyone had described Jones in glowing terms. The day after his arrest, his ex-wife, Carol, told detectives that during their marriage, he had been “angry most of the time.” He was out of work and using drugs, lashing out and cursing at the kids. He had not generally been violent, she said, but in that period “he took a belt to ’em” a few times. When she decided to leave him, he threatened to kill himself in front of the kids and was forced into psychiatric treatment. But a former manager at the trailer park told Barnett that Jones had quit drinking and “was much less agitated” than he had been during his marriage to Carol.
Leann Jones, who was married to Larry, said Jones was far from perfect, but he would never hurt a child. “I mean, there’s things Barry probably has done over the years that he should be in jail for, but not for that,” she told me. The brothers were born in South Carolina and grew up in a volatile household, moving constantly. Their mother, herself a victim of abuse, drank heavily, beat the kids, and once stabbed her husband, according to interviews with family members conducted by Jones’s federal defense team. Jones began stealing and was sent to Vision Quest, a program for delinquent youth. By the time he shacked up with Gray at the Desert Vista, they were both hooked on crystal meth.
Barnett also learned that Jones had been having an affair with a woman named Rose, the friend who went with him to the transient camp the day Rachel died. Rose was his ex-girlfriend; her own daughter, Elishia, remained close to Jones. On the phone, Rose told Barnett that Jones had shown up distraught that morning, saying that Rachel was in a coma and convinced it was because of the head injury.
Barnett’s report was filled with leads to pursue. The co-owner of the Desert Vista told him he had heard that a “2-year-old boy who was slightly large for his age had struck Rachel in the stomach with either a stick or an iron bar.” After the arrests of Jones and Gray, the mother of the boy “packed her things and moved within two hours without notifying the office,” Barnett wrote. Neighbors said she was “scared to death” that her son might be responsible for Rachel’s injuries.
But just a week into his work, Barnett was told by Jones’s attorneys that continuing to pay him was “financially infeasible.” Barnett would stop his investigation until further notice. He never picked it up again.
George Barnett died in 2014. But in a sworn affidavit signed in 2002, he said he was certain he could have proven Jones’s innocence had he been able to keep investigating. He had not even realized that Jones was represented by Sean Bruner, a Tucson defense lawyer who was the lead attorney on the case; Barnett had only ever met with his co-chair, Leslie Bowman. He was never called to testify at trial.
Bowman, who is now a U.S. magistrate judge, acknowledged in a 2002 affidavit that she failed to seek additional funds to pay Barnett. She had only practiced law for about a year, yet Bruner delegated major responsibilities in the capital case to her, such as interviewing all witnesses. She never even spoke to Gray.
Jones expressed confidence in his lawyers in his early letters from jail, which he wrote mainly to Rose and Elishia. He rarely mentioned Bruner but was upbeat about Bowman, who he called Miss Leslie. She was “pretty as a speckled puppy,” he wrote, and “sharp as a tack.” He observed that “Mr. Sean is piling on the work on her.”
But as time went on, Jones described lapses in communication with Bowman and concerns that the state was manipulating the evidence against him. “The really rough part is that I believe they already know of my innocence but do not want to look stupid so they try to fabricate a story against me,” he wrote.
Jones had been in jail for six months when he got word that his twin brother, Larry, had died. Jones sought permission to go to his funeral but was denied. He spiraled downward after that. As his trial approached in the spring of 1995, Jones sent a letter to Bowman. “Dear Miss Leslie,” he wrote, “wanted to write and see what is happening. It is getting close to trial time and I am becoming very scared.”
Amonth before the start of the trial, Brandie was deposed by attorneys for Jones, Gray, and the state. Brandie repeated that Rachel had been hit in the stomach by a little boy using an iron bar, but now claimed to have seen it herself. A defense attorney for Gray brought up a boy named “Ryan,” who Brandie had briefly mentioned during her interview with Detective Ruelas, while listing the kids who lived in the trailer park. Brandie said Rachel used to talk about a Ryan who was always being mean to her.
Brandie also said that Rachel’s older brother, Jonathan, used to sleep in the same room as the girls. When he entered the room, Rachel would say, “Can I sleep with you, Brandie?” A defense attorney asked if Jonathan ever tried to touch Brandie in a bad place. She said he did once, and she told Gray. After that, her dad built a separate room for Jonathan on the other end of the trailer.
In her 2002 affidavit, Bowman said she never attempted to contact Jonathan, “although he was both a potential suspect and a potential witness.” Years later, as part of Jones’s federal habeas appeal, attorneys collected sworn affidavits from several people at the Desert Vista who said that girls were afraid of Jonathan. Jones’s niece Tera said that both she and Brandie had experimented sexually with him, but she thought it was possible he’d molested his little sister since she believed he could not control himself.
In one affidavit, Elishia said Jonathan chased girls, touching their breasts or grabbing them between their legs. “He was very rough,” she said, “and he went after the little girls as well as those of us who were a little older.” A neighbor said that she had found her five-year-old daughter under a blanket with him. Elishia’s sister called Jonathan “the nastiest little pervert.” But she also said there were “lots of crazy, perverted people there.”
Indeed, the same affidavits are rife with allegations of sexual abuse by adults at the Desert Vista. One man named Bob was a known “molester” who was “always saying ‘hi’” to Rachel, Tera said. According to a 1993 report from the Pima County Sheriff’s Department, Brandie also accused a neighbor named Robert of fondling her at the trailer park. And Jones’s twin brother, Larry, had a bad reputation among the kids, mainly for being mean and violent — but also at one point for taking “inappropriate showers” with his stepdaughter Chelsea, Leann’s daughter.
Chelsea is in her 30s now. She remembers the Desert Vista as a place where the kids ran around barefoot and the adults all did crank. She has deep anger at Larry for being abusive. Yet she recently began writing to Jones in prison. “The one thing that’s always stood out to me is that he always tried to protect my mom,” Chelsea told me. When Jones saw Larry harm her mother or the kids, Chelsea said, the brothers would end up in a fistfight.
Today, Chelsea wonders if Larry should not have been an alternate suspect, along with so many others at the Desert Vista. As Tera said in her affidavit, Rachel was not shy. “She would go with almost anyone. Since Angela was always sleeping off her highs, Rachel was unsupervised a lot.”
The trial of Barry Jones began in April 1995. Angela Gray had recently been acquitted of murder, with her attorney pinning Rachel’s death on Jones. She was convicted of child abuse and given eight years in prison.
Superior Court Judge James Carruth presided over both trials. Sean Bruner, Jones’s defense lawyer, told me Carruth had a reputation for being a bit lazy and going along with the state. “He liked to move things along real quickly,” he said, an observation supported by the trial transcripts. While Bruner said this hardly set Carruth apart from other judges, another veteran Tucson defense attorney, Richard Lougee, was scathing. He told me Carruth had once spent a major trial doing his taxes and reading Golf magazine. “His attitude toward justice was aggressive indifference.”
Representing the state was Kathy Mayer, head of the Pima County Attorney’s Special Victims Unit. A longtime prosecutor and advocate for gay rights, Mayer was tough. She had navigated homophobic attacks from city council members in the ’80s and proved formidable in court. She also had a reputation for integrity. “I’ve never thought of her as one of the sleazy attorneys in that office,” Bruner said, calling her “terrific.” Lougee, who tried sex crimes cases against Mayer for decades, compared her favorably to other prosecutors of the era, while also describing her as an ideologue and “true believer.” “She tried people rather than facts,” he said. “She was very good at what she did. I had no reason to think she was dishonest in any way.” But “once she became committed to a case, she got tunnel vision.”
In her opening statement, Mayer described what caused Rachel’s death. She had died from a condition called peritonitis, which is caused by a rupture of the small intestine. As a result, fluids that are supposed to pass through the intestines “leak out into the rest of our body, and it slowly poisons us,” she told jurors. It was a painful death — and it was not an accident, Mayer said. “Who killed her? The state contends Barry Jones killed her.” They had eliminated “any other possible suspect.”
The trial lasted just over a week. The state sought to prove that on the afternoon of May 1, 1994, Jones had beaten and raped Rachel inside his van. To prove it, Mayer called witnesses who said that they saw Jones coming and going with Rachel. The time frame for each trip was shaky, based on loose estimates from kids and adults. “A lot of people in this case that aren’t good at telling time,” Mayer was forced to tell jurors by the end. But it all happened between 2 p.m. and 5:30 or 6 p.m.
Particularly important was Becky, Rachel’s sister, whose statements continued to evolve. At her mother’s trial just a few weeks earlier, where she had cried on the stand, Becky repeated what she had always said — that her sister had taken two trips with Jones and that she seemed OK when she came home. But testifying against Jones, Becky suddenly said there had been three trips. She also recalled seeing bruises on Rachel’s face and hands. She had never mentioned these before. Finally, she said Rachel acted scared of Jones, who sometimes hit her while they played. “Barry would want a hug and Rachel wouldn’t go there,” Becky testified.
The Lopez twins also took the stand. Both were asked to act out the part of the man with the messy hair hitting the little girl while driving the van outside the Choice Market. Ray Lopez said the girl was crying, but he could not see her face — and he did not recognize the van when shown a photo. His sister, Laura, said she saw the girl’s face “a little” and could see her eyes watering. But their mother, Norma, testified that her children were sure of what they had seen. “They came running in — they were out of breath and anxious to tell me the story,” she testified.
If anyone inside the Choice Market saw something suspicious that day, the state did not call them to testify. In fact, there is no hint in any of the police reports that anyone from the Pima County Sheriff’s Department ever visited the store. Yet the state did call an employee from the Quik Mart, where Jones had said an EMT had looked at Rachel. The employee said a man with a little girl had come in for some ice during her shift — but not at the time when EMTs from the fire station usually stopped by.
On April 12, 1995, Sonia Pesqueira took the stand. She had recently been promoted to sergeant. In Bruner’s opening statement, he said there was no physical evidence to show Jones had raped and killed Rachel. It was up to Pesqueira to prove the opposite.
No semen or pubic hairs had been found to show Rachel was raped. But a serologist had testified that there were trace amounts of blood (too little to effectively analyze) found on the shirt Jones was wearing the day of his arrest, along with small stains on his jeans. The latter matched Rachel’s blood type. Small amounts of blood had also been found on and around the passenger seat of the van, some of which also matched Rachel. With Pesqueira on the stand, Mayer would use the blood evidence to show that Jones had beaten Rachel during the third trip in the van, then raped her behind her seat, leaving an “impression stain” on the carpet.
Pesqueira readily admitted that she was not an expert in bloodstain interpretation. But she had once attended a weeklong workshop on the topic in Scottsdale, Arizona. Asked by Mayer to help the jury understand the “terms [of] art that you use to differentiate maybe one type of stain or spatter from another,” Pesqueira said that bloodstains could be matched to different velocities, for example. “Because I am not qualified as an expert to say what velocity they are, I could say I could appreciate what type of stains they were in relationship to where the victim could have been and the assailant could have been,” she said.
It was confusing. It was also well outside the bounds of Pesqueira’s expertise. At one point, Bruner objected. Carruth said her claims sounded “awfully speculative to me.” But he let her proceed. Pesqueira walked the jury through the photos to show how, when Jones struck Rachel in the passenger’s seat, blood from her head would “spatter out.”
Pesqueira also analyzed photos of Rachel’s bruises, sorting newer ones from older ones based on their color and appearance. Another photo showed that Rachel had “linear contusions on her lower abdomen below her rib cage.” These were “consistent with pattern injuries,” in which a tool or instrument leaves an impression on human skin, she said. Mayer asked if Pesqueira found an item that was consistent with the pattern in the photograph. “Yes, I did,” Pesqueira said. A pry bar was discovered under the van’s driver’s seat.
Jurors found the forensic evidence compelling. Hildegard Stoecker remembers the blood in the van and on Jones’s clothes as “the main thing” she found convincing. “But you can read that two different ways,” she said. “Now I look back at it and realize, well, that could’ve been just simply from him carrying her and her being in the van — it doesn’t necessarily mean that he killed her.”
Bruner did not call any expert witnesses to challenge Pesqueira’s testimony. Nor did anyone explain the unreliability of eyewitness accounts from children, or the pitfalls of assessing injuries based on observation alone. Finally, and most crucially, there was no expert witness who could counter the state’s theory about the timing of Rachel’s fatal injury.
Instead, Bruner called just one witness for the defense: 12-year-old Brandie Jones. Since her father’s arrest, Brandie had moved from one relative’s house to another and attended four different schools. From the jury box, Stoecker felt sorry for her. She remembered seeing Brandie in the restroom before she testified, going through a trash bag filled with clothing given to her by a defense attorney. “She’s going through these clothes trying to figure out what to wear,” Stoecker said.
Brandie repeated the claim about the boy and the metal bar. Mayer easily cross-examined her, pointing out inconsistencies in her statements. Stoecker and others felt Brandie was just trying to help her dad. A juror named Odessa Poles remembers being disgusted at Jones and Bruner for putting the child in that position.
On April 14, 1995, Jones was found guilty. Bruner was not surprised. “It was a tough case,” he told me. The evidence had been weak, but “Barry’s the boyfriend, he’s a drug addict, you know, he kind of fit the stereotype, he lived in a really run-down part of town. It was kind of stacked against him, I guess you could say.”
If Bruner remains dispassionate about the conviction, it’s probably because he was always ambivalent about his client’s innocence. In an affidavit signed in 2002, Bruner said he could not explain why he did not do more to investigate the case. “In retrospect,” it reads, “it is possible I just assumed Mr. Jones was guilty based upon the state’s version of the case.”
There was another factor stacking the case against Jones. Jurors had been screened for their willingness to impose a death sentence, although their job was solely to determine whether Jones was guilty. Studies have long shown that “death qualified” juries are more likely to convict. In Jones’s case, this meant any jurors with lingering doubts could still vote for a guilty verdict, while psychologically distancing themselves from the implications. As Stoecker recalls, the possible death sentence loomed heavy over the jury. Yet Poles was shocked to hear that Jones ended up on death row. She believed in his guilt, she told me. But “I don’t feel that his lawyers fought hard enough for him or to really prove his case. … If I had had his lawyers, I’d rather have shot myself in the foot myself.”
Poles was deeply affected by the trial. It began on her granddaughter’s birthday, she repeatedly recalled. Years later, after leaving Arizona and falling into a depression, Poles realized she was still hanging on to the memory of the trial. “And my therapist tells me, ‘You’ve got to let it go,’” she said. “I can’t let it go.” It’s not that she’s gripped with hatred toward Jones. She just cannot get over what was done to Rachel Gray.
Poles and Stoecker both told me about encounters they had following the trial that assured them they did the right thing. Poles said she got on the elevator with Mayer, who told her that “certain evidence was withheld from us that we didn’t know about.” The implication was that it further proved Jones’s guilt. “But she never did tell us what it was.”
Stoecker had a much stranger story. Days after the trial ended, she said, she ran into someone from the prosecutor’s office in the checkout lane while buying groceries. Stoecker said it was a woman — she thought it was a prosecutor — but could not recall who exactly. Regardless, “she recognized me,” Stoecker said, and mentioned evidence against Jones that had not been presented at trial. “But the evidence was that [Rachel] did regain consciousness” at the hospital, she said, and that before she died, “she claimed he basically assaulted her.”
The claim made no sense. The emergency room doctor estimated that Rachel died hours before she arrived at the hospital. Nor was there any reason such evidence would not be admissible at trial. However irrational, it made Stoecker feel better, at least temporarily.
Over email, Mayer declined to discuss the case. But she wrote, “I would never have told a juror or anyone else that Rachel had regained consciousness at the hospital,” she wrote, “so that conversation did not happen with me.”
The road from Tucson to Florence, Arizona, takes you out of the shadow of the Santa Catalina Mountains north to Highway 79. Two lanes lined with saguaros become Pinal Parkway, and soon, the Arizona State Prison Complex is impossible to miss. A long perimeter fence runs right alongside the road; at the intersection is the Blue Mist Motel, where relatives of death row prisoners sometimes stay the night before an execution. A trailer park houses workers across from the sprawling complex. In some ways, it resembles the Desert Vista.
Florence’s claim to fame is as the ultimate prison town. There are nine penitentiaries within a roughly 1-mile radius, both public and private. Each new prison project has brought promises of economic stability, but the local benefits are hard to discern. On a hot Saturday afternoon in September, the storefronts on Main Street were shuttered or empty. At the one open store — a cluttered thrift shop — pamphlets advertised jobs with the Arizona Department of Corrections.
At the Pinal County Historical Society and Museum, a glass display features nooses used for hangings, alongside black and white photos of the condemned. Beneath it, there’s the double execution chair used in 1934 to kill two brothers simultaneously in the gas chamber. Since Jones has been on death row, 33 people have been executed in the state, all but one using lethal injection.
Others choose to hasten death with the help of the state. In 2000, Arizona killed Donald Miller, a “volunteer” who gave up his federal appeals. Among the witnesses to his execution was Sonia Pesqueira. She had investigated the murder that sent Miller to die. In a 2001 MSNBC documentary, Pesqueira expressed contempt toward his decision to “quit,” saying it was proof of his character.
Another witness featured in the film was a young, skinny defense investigator named Andrew Sowards. After the execution, he gave up murder cases for a while. But in 2008, Sowards went to work with the Arizona Federal Public Defender’s Office, arriving just as Jones’s federal habeas petition had been denied. As he traced the investigation to its origins, Sowards became increasingly convinced that Pesqueira — the same cop who had spoken so coldly about his old client — had helped send an innocent man to die.
In 2009, Sowards got access to the county attorney’s file in Jones’s case. “They claim to have an open file policy, and I wanted to go take a look,” he told me. The first box he opened contained a bunch of tapes. At the top was one that nobody in his office had ever seen. “It had never been disclosed, we didn’t have a copy of it in our file, we had never heard of it,” he said.
The tape featured a 1995 interview between a Pima County sheriff’s investigator and two young brothers. “Do you remember me, from seeing me before?” the investigator asked the older boy. She asked about an old injury on his chest. “Ryan, my brother, he took a piece of stick and sliced me,” the boy answered. He said it happened when his family was living somewhere else.
Sowards realized something was wrong. Ryan was the same child rumored to have hit Rachel with a metal bar, the boy whose mother abruptly abandoned the trailer park after Rachel’s death. His own parents had described him as a bully — and he was the same size as Rachel, despite being half her age. The tape certainly did not prove that the child was responsible for her death. But had it been disclosed to the defense before trial, as prosecutors were obligated to do, the tape would have provided critical corroborating evidence for Brandie’s testimony, possibly generating reasonable doubt among jurors. Instead, the state concealed the fact that they ever investigated the alternative scenario. In her closing statement to jurors, Mayer mocked the story about “the little boy who killed her with this sort of accidental thing with the metal stick.”
Sowards began obsessively pouring over the evidence. He tracked down a woman who had lived at the Desert Vista and briefly appeared in a report by Detective George Ruelas. She told Sowards that police had “grilled” her two young sons back in 1994, asking whether either of them hurt Rachel. But, like the interview with Ryan’s brother, this was not documented in the case file.
When Sowards sought to speak to Ruelas, he found him in a federal prison, convicted in a drug heist committed while working as a California Highway Patrol officer. Sowards wrote him a letter. He asked about several gaps in the investigation, including whether he or anyone else ever visited the Choice Market. Ruelas never replied.
Other critical pieces of evidence had long been missing. Among them were the blue panties that Rachel had been wearing when she was brought to Kino Hospital. Sowards was told by Pesqueira that they were most likely destroyed. But eventually, a portion of the underwear was found and tested for DNA, with no match to Jones or anyone else.
Litigation over the missing evidence and DNA testing led to a delay that would prove crucial for Jones. In 2012, the U.S. Supreme Court decided Martinez v. Ryan. Until the ruling, onerous procedural barriers governing cases like Jones’s dictated that, if attorneys failed to bring a claim of ineffective assistance during state post-conviction proceedings, that claim was forever barred from being heard in federal court. But Martinez carved out an exception, holding that if such a claim was itself the result of ineffective lawyering by post-conviction counsel, a defendant could have a new shot at relief.
A paralegal with the Federal Public Defender’s Office had reviewed the billing records from Jones’s post-conviction attorney. Several key files were not mentioned. The records suggested the attorney did not even read the full case, let alone thoroughly investigate it. In 2014, the 9th Circuit Court of Appeals remanded Jones’s case to a federal district judge, who reopened the door to federal court. As Jones’s current attorney, Assistant Federal Public Defender Cary Sandman, explains, “If his case had actually proceeded more rapidly through the system, in theory, he might have faced an execution before 2012 and had been dead already.”
But for all the missing evidence and holes in the investigation, perhaps the most important discovery made by Jones’s legal team were key changes in the testimony of Dr. John Howard, the medical examiner who was a state witness against both Gray and Jones. Just weeks apart, Howard gave conflicting accounts about the timing of the injury that killed Rachel. At Gray’s trial, Howard estimated that both the vaginal injury and the fatal intestinal wound were “most consistent” with occurring 24 hours or more before Rachel died. But when he took the stand against Jones, Howard testified to a shorter time frame, concluding that the injuries were consistent with being inflicted 12 hours before Rachel’s estimated time of death — precisely the window offered by the state for Jones’s trips in the van with her.
The failure to confront Howard is one mistake Bruner readily admits. He had attended Gray’s trial, he just did not pick up on the discrepancy. “I could have cross-examined him on that 24-hour/12-hour thing, and I missed that,” Bruner told me. “It’s an important case, I should have caught that, and I didn’t.”
In 2004, Howard provided Jones’s previous federal appellate attorneys with an affidavit explaining his testimony. “When I testify, I answer only the questions that are asked,” he said. If trial attorneys had asked whether Rachel’s fatal abdominal injury could have happened “more than 24 hours before her death, I would have answered the question in the affirmative.” Howard was unaware that Rachel had been described as looking sick as early as Saturday, April 30, two days before she was brought to the hospital. Her symptoms would be “consistent with the abdominal injury being inflicted prior to that time,” Howard said.
A slew of additional experts has since dismantled the medical evidence heard by jurors. Dr. Janice Ophoven, a renowned pediatric forensic pathologist who first reviewed the tissue slides and other evidence from Rachel’s autopsy in 2002, has long insisted that her intestinal injury “could not possibly have been inflicted on the day prior to her death.” She emphasized that “the veracity of this evidence is as scientifically precise as any forensic determination in medical science.” Dr. Mary Pat McKay, who first studied the same materials in 2009, says there is “absolutely zero evidence” that Rachel’s fatal injury occurred within 24 hours of death. And in an affidavit signed earlier this year, Dr. Phillip Keen — who was initially contacted by Leslie Bowman in 1994 to review the autopsy report, but never called to testify — said he agrees with Ophoven and McKay: “Rachel’s small bowel laceration was not inflicted on May 1, 1994, and thus Jones’s jury was misled to believe otherwise.”
There was never much doubt that Sonia Pesqueira had testified outside of her expertise at Jones’s trial. The NAS report cast further doubt on her analysis. But in fact, it was worse than that. On the stand, Pesqueira said her training in bloodstain analysis had been taught by a woman named Judith Bunker, who held workshops for “law enforcement agencies and detectives worldwide.” This was true — Bunker was once lauded as a pioneer in blood interpretation; in 1980, the Fort Lauderdale News marveled at the “44-year-old grandma who is the only blood spatter analyst in Florida.” But while Bunker’s pupils went on to testify at trials, capital defense attorneys would find that she had grossly exaggerated her credentials, claiming to have years of technical experience in an era when she was working as a secretary to a medical examiner.
Over email, Bunker said she is retired and proud of her work. “I will stand on my background and training,” she wrote. “My qualifications were accepted in many courts throughout the country in bloodstain pattern analysis and reconstruction.” She added, “I cannot speak to what a former student does after they left my class.”
It is no surprise that Bunker was allowed to testify in courtrooms nationwide. Although judges are the “gatekeepers” who vet expert witnesses, most do not have the background to easily determine what is sound science and what is not. The same is true of lawyers, on both sides. In Arizona, high-profile exonerations like that of Ray Krone, sent to death row on bogus bite-mark evidence, have forced prosecutors to admit that flawed forensic evidence can send innocent people to prison.
In 2014, Pima County launched a Conviction Integrity Unit, tasked with investigating claims of actual innocence. Veteran prosecutor Rick Unklesbay was put in charge. The next year, Unklesbay joined Jones prosecutor Kathy Mayer, along with Krone himself, on a panel to discuss wrongful convictions. Mayer blamed the abuse of forensic evidence on “professionals acting unprofessionally.” Unklesbay stressed the need for prosecutors to police themselves. After all, when an innocent person is sent to prison, Unklesbay said, the real perpetrator “is free to offend again.”
In response, Unklesbay referred Sandman to the CIU’s website. The application guidelines were clear, he wrote: “The unit does not evaluate cases that are still proceeding on any form of appeal.” To Sandman, the reply was preposterous. In capital cases, habeas appeals don’t end “until the needle is inserted,” he said. “His response basically says to me that they’ll never look at a case that’s in litigation — and in a death penalty case, that means their office is just a sham.”
Over email, Unklesbay said he would “for obvious reasons” review a death penalty case involving an innocence claim. He said he did not remember his correspondence with Sandman. “If Jones should lose, the CIU can get involved,” he wrote.
A spokesperson for the Arizona attorney general declined to comment on the upcoming hearing for Jones. In its previous letter to Sandman saying the Pima County medical examiner did not dispute the findings of defense experts, the office said it did not plan to call a medical expert of its own. Yet the spokesperson told me it would be “completely inaccurate” to suggest that the original theory of the crime is no longer supportable. Arizona appears ready to defend its conviction of Jones. But it is not clear how.
In early August, Sandman deposed Sonia Pesqueira. She had recently retired, with a collection of awards and press coverage chronicling her decadeslong crusade for the state’s most vulnerable victims.
Sandman showed Pesqueira the statements from former Pima County Medical Examiner John Howard suggesting Rachel’s fatal injury occurred at least 24 hours before Rachel died. “This is all new to me,” she said. Pesqueira had never consulted him on the timing of Rachel’s injury. If she had known it had possibly been inflicted before Sunday, May 1, 1994, she said, she would have widened her investigation. Sandman brought up other holes in the investigation. For example, he asked what happened to the clothes Rachel wore on the day she was supposedly raped and beaten. They would potentially have significant forensic value. But there was no record they were ever collected. Pesqueira could not answer why.
When I first contacted Pesqueira for an interview in late August, she quickly agreed. “Although this case was 23 years ago, the images of what I saw are still vivid in my mind,” she wrote over email. But when I arrived in Tucson in September, she wrote that she had been taking care of her sick grandchildren and had come down with a fever herself.
A few days later, I stopped by her house in a pleasant neighborhood on Tucson’s east side. The entrance had a striking view of the Catalina Mountains and a sign reading “Bienvenidos.” There was nobody home. After I left her a note, Pesqueira sent a text message saying she was at the doctor’s office but could speak very briefly “because I will be busy after today.”
Pesqueira stood by her investigation. She speculated that the peritonitis could have taken effect faster in Rachel than in other children. She was 4 years old but “itty bitty,” no heavier than her own 2-year-old grandson, Pesqueira recalled. She denied any rush to judgment and maintained her belief that Jones is guilty. “He probably doesn’t want to accept the reality of it, that he did what he did,” she told me.
Angela Gray got out of prison in 2003. She declined to be interviewed. Years ago, in a letter to Jones’s post-conviction lawyer, Gray said she felt “the jury gave him justice for the victim.” But today, she no longer believes Jones killed or assaulted her daughter.
In a 2009 affidavit taken by Jones’s defense attorneys, Gray said she only ever suspected him because of his lie about going to the Rural Metro and the fact that he did not return to the hospital that morning in 1994. She said Rachel called Jones her “Best Buddy Barry,” and always wanted to tag along with him. Finally, Gray reiterated something she had always insisted: that some of the bruises seen on Rachel’s body at the hospital and during the autopsy had not been there on the night of May 1, 1994. “The morning that I found Rachel, I was freaking out,” Gray said. Carrying her from her bed to the van, “it is possible that I hit parts of her body against objects in the house.”
Jones has not spoken to Gray since going to death row. As his hearing nears, he is cautiously hopeful about the possibility of freedom. He is also “scared to death,” he said. “That’s not my world out there,” he told me in a brief phone call from prison. “This is my world in here.”
Jones said it bothers him that while everyone has been focused on his appeals for years, nobody seemed to remember Rachel, or the fact that her killer is still out there. “It’s been all about me,” he said. In his letters from jail, Jones used to describe visions of Rachel visiting him, either in dreams or hallucinations. He wondered if others were haunted by her death.
“I mean, she didn’t get to live a life, you know? That’s the thing … I couldn’t tell you much about her except she was just a sweet kid. She was crazy about going to the store. She wanted to drive up to the store every time we went up to Quik Mart. She wanted to be around the other kids. She wanted to play. … And right now, she’d be like 26, 27 years old, you know, and have a family of her own and everything, you know? And these are things that I think about, that I can’t quit thinking about, that maybe nobody else thinks about.”
Shoddy police work, junk forensics, and a flawed defense converged in the case of Barry Jones. Did Arizona send an innocent man to die?
Medical experts testified that Rachel Gray’s fatal injury could not possibly have occurred within the window presented at trial.
On her second day of testimony at the U.S. District Court in Tucson, Arizona, retired Pima County Sheriff’s Sgt. Sonia Pesqueira squinted at the monitor on the witness stand. It showed an item found at a crime scene in a case she investigated back in 1994: the murder of a 4-year-old girl. The item — a letter recovered from a trailer where the child had lived — was just one piece of evidence that could have provided an early lead.
Assistant Arizona Federal Public Defender Cary Sandman asked Pesqueira if she recognized the document. She peered at the monitor. “I can’t see what it says,” she said. She had left her glasses at home.
“Can I stop you for a moment?” U.S. District Judge Timothy Burgess interrupted. It was not yet 10 a.m. The evidentiary hearing had been on the docket for months. He had traveled from Alaska to preside. “It is not acceptable for us to have planned for so long for this hearing and have the witness now tell us that she can’t read these documents,” he said.
Pesqueira apologized. But patience was in short supply. Her investigation had sent a man to death row. For 23 years, that man had sworn he was innocent. There were good reasons to think he might be telling the truth, but prosecutors had fought to preserve his conviction. Now, revisiting her role as lead investigator, Pesqueira gave vexing testimony. There were just too many clues she had apparently missed; conspicuous leads she had failed to see. The forgotten glasses were almost too obvious a metaphor.
Burgess asked Pesqueira how far away she lived. Thirty minutes, she said. Were her glasses over the counter? Yes. Burgess handed her his own glasses. She put them on and smiled. “That helps a lot,” she said.
Across the courtroom, Barry Jones sat in an orange jumpsuit, shackles, and a belly chain. He had not seen Pesquiera in over two decades. But he remembered her well. In 1994, she had mercilessly interrogated Jones at the Pima County Sheriff’s Department, accusing him of killing his girlfriend’s 4-year-old daughter, Rachel Gray. Jones had taken the little girl to the hospital hours before, but she was dead on arrival. She had a scalp laceration and was covered in bruises. She was also bleeding from her vagina. Before the medical examiner had determined a cause of death, Jones became Pesquiera’s sole suspect. In 1995, he was convicted of rape and murder and sentenced to die.
With his appeals exhausted, Jones got a lucky break in 2012: a U.S. Supreme Court ruling that would allow him back into federal court on the basis of ineffective assistance of counsel. Jones’s defense had been profoundly flawed. His trial lawyers failed to call a single expert witness, putting only his 12-year-old daughter on the stand. In 2017, Burgess granted Jones a rare evidentiary hearing to consider whether his defense violated his Sixth Amendment rights. If Jones prevailed, he could win a new trial — or even be released.
The seven-day hearing began in late October 2017, at the Evo A. DeConcini U.S. Courthouse, a six-story postmodern building on the edge of downtown Tucson. Among the first witnesses were Jones’s original attorneys, Sean Bruner and Leslie Bowman, who admitted to numerous failures in representing him at trial. They were followed by a procession of experts across forensic disciplines: pathology, biomechanics, psychology, and bloodstain interpretation. They gave compelling testimony that jurors had never heard — evidence that would likely have raised doubts about Jones’s guilt.
Burgess was attentive, asking lots of questions. Pesquiera was the penultimate witness. In a black top and bright blue cardigan, she carried the confidence of a veteran cop. Prosecutors from the Arizona Attorney General’s Office had asked that she be allowed to sit at their table throughout the hearing, a somewhat unusual request that signaled her enduring commitment to the case. But now, on the stand, Pesqueira seemed less self-assured — sometimes impossibly obtuse. When asked about a specific lead she never pursued, she conceded it was absent from her reports. “Which also means if it’s not in your report, you didn’t look at it?” Burgess asked. “I didn’t document it, yes,” Pesqueira repeated. There’s a difference between documenting and doing, the judge explained. “If you did something, you’d document it, right?” Yes, she said.
In other words, if it was not in the police report, it hadn’t been done.
The investigative records in the Jones case were riddled with holes. Most alarming, there was no sign that Pesqueira ever sought critical information about how, exactly, Rachel was killed. The child had died as a result of a sharp blow to the abdomen that perforated part of her small intestine, the duodenum. Leakage from the tear caused a deadly condition called peritonitis, which, if left untreated, can lead to septic shock. To estimate when the blow occurred, a pathologist testified, one would need to thoroughly investigate when Rachel showed her earliest symptoms of illness. Pesqueira never did.
If Pesqueira had expanded her investigation, she would have found plenty of alternative suspects. There was Rachel’s own mother, Angela Gray, for one. Unlike Jones, she had a reputation for abusing her kids. (“That would have been a good thing to have,” Pesqueira said at the hearing when shown a relative’s pretrial statement saying that Gray had hit her kids in the stomach and thrown them against the wall.) There was also a little boy whom Rachel had accused of hitting her in the stomach with a stick or an iron bar, according to kids at the trailer park. Pesqueira dismissed this as a rumor.
Yet another set of people might have been questioned about Rachel’s vaginal injury. The injury was likely much older than it appeared, doctors explained, possibly even predating the period of time during which Rachel lived with Jones. This introduced an array of other suspects. There was Rachel’s 14-year-old half-brother, who had a reputation for preying on girls at the trailer park. (The letter that prompted the exchange over the glasses was one clue about his sexual activity.) There was also her mother’s abusive ex-boyfriend, Zoly, with whom Rachel and her siblings had lived before moving in with Jones.
“I am trying to understand why there was no follow-up with Zoly,” Burgess told Pesqueira toward the end of her testimony. There was no evidence that Jones had ever bathed or dressed the kids in their brief time living with him. Was Zoly ever responsible for doing such things? “I don’t know that,” Pesqueira said.
“That would require interviewing him, right?” Burgess asked.
“Yes, sir,” she said.
Did she think this was important?
But Pesqueira could not explain why she had never spoken to Zoly. “I think I just — I didn’t do it.”
Jones first came under suspicion after leaving Rachel and her mother at Tucson’s Kino Community Hospital shortly after 6 a.m. on May 2, 1994. Law enforcement found it strange that he did not return — and before long, so did Gray. As she would tell Pesqueira, she and her three children had only lived with Jones at his home in the Desert Vista Trailer Park for a month or so. Gray said she’d spent most of the previous day asleep; when she woke up, Jones told her Rachel had fallen out of his parked work van, bloodying her head. He said he had taken her to the nearby Rural Metro Fire Station for medical attention. But later, Rachel started vomiting. She was thirsty but could not keep liquids down. After putting her to sleep, Gray found Rachel unresponsive the next morning, with her eyes rolled back in her head.
Jones would later admit that he had lied about taking Rachel to the fire station. He explained that he’d seen a cop there and he did not want to be caught driving with a suspended license. So he drove on to a Quik Mart, where he spotted a paramedic. The lie — and the fact that Jones had been seen taking Rachel on short trips in his van on the afternoon of May 1 — became the early basis for the state’s case. At trial, prosecutors also leaned on the eyewitness accounts of 8-year-old twins, Ray and Laura Lopez, who said they had seen a man who matched Jones’s description hitting a young girl while driving a van.
But despite the circumstantial evidence, there was no physical evidence linking Jones to Rachel’s injuries apart from some small drops of blood found on his clothes and the passenger side of the van. Nor was there any evidence he had raped her. The most critical items for forensic testing — such as the clothes Rachel and Jones were wearing on the day he allegedly assaulted her — were never even collected. Other vital pieces of evidence were lost, concealed, or destroyed.
Responsibility for the shoddy police work fell on Pesqueira. But the conviction also rested on the trial testimony of Dr. John Howard, a pathologist with the Pima County Medical Examiner’s Office. Howard had testified that Rachel’s fatal abdominal injury was inflicted some 12 hours before her death — an estimate that fell neatly within the window during which the state alleged Jones had Rachel in his van. This was the linchpin in the state’s case against Jones. Yet — in a serious discrepancy that Jones’s lawyers failed to catch — Howard had given a strikingly different calculation mere weeks earlier, at Gray’s trial. (She was convicted of child abuse but acquitted of murder.) There, Howard had testified that the abdominal injury was “most consistent” with occurring 24 hours or more before Rachel died, long before she was with Jones.
Whatever the reason for Howard’s disparate statements in 1995, the state’s medical timeline has since been dismantled. Beginning in 2002, experts hired by Jones’s federal public defenders firmly concluded that Rachel’s fatal injury could not possibly have occurred within the window presented at trial. In a significant concession, the Arizona Attorney General’s Office wrote to Jones’s attorneys in advance of the 2017 hearing acknowledging that the current Pima County medical examiner “did not dispute the conclusions of your experts.” Finally, Howard himself had since shifted his stance in multiple statements. If attorneys had asked whether Rachel’s fatal abdominal injury could have happened more than 24 hours before her death, he explained in 2004, “I would have answered the question in the affirmative.”
Nevertheless, the state denied that its case against Jones had fallen apart. In an email to The Intercept last fall, a spokesperson for the attorney general’s office rejected the notion as “completely inaccurate.” With its medical theory debunked, it seemed uncertain how Arizona would defend its case at the hearing in Tucson.
Gard insisted the evidence still pointed to Jones, while reminding the court that the question of innocence was irrelevant: The matter at hand was Jones’s Sixth Amendment claim. Under the landmark U.S. Supreme Court case Strickland v. Washington, this meant Jones had to prove, first, that his original attorneys had been deficient, and second, that their failures were so severe that they affected the outcome of the case. But this second question was irrelevant, too, Gard argued. “There clearly was no deficiency.”
To prove this, Gard and her colleague Assistant Attorney General Myles Braccio pointed to a series of half-steps in the right direction. For example, Jones’s trial attorneys had contacted an independent pathologist, Dr. Philip Keen, back in 1994. They sent him Howard’s autopsy report, asked preliminary questions about the timing of Rachel’s injuries, and asked for a full review of the medical evidence. Yet there was no record that the additional materials were ever sent. There was proof of a short follow-up phone call, but no one actually remembered it. According to Braccio, the “only conclusion we can draw from these records” is that Keen had agreed with Howard. “Or that we dropped the ball and didn’t follow up properly,” Bowman, Jones’s former attorney, responded.
There were several such attempts by the state to recast the absence of evidence as a sign of a job well done. Braccio pointed to gaps in the lawyers’ billing records, suggesting they had done more work than the documents showed. This was a death penalty case after all, “and realizing these high stakes,” he asked Bowman, “you have no reason to believe, as you sit here today, that … you devoted anything other than your best efforts, correct?” When Bowman, who is now a magistrate judge, said she and Bruner had not put their best efforts forward, Braccio reminded her that, under Strickland, it did not actually matter what she thought now. It is an “objective standard,” not based in hindsight.
But perhaps most revealing was the state’s attempt to rationalize the failure to secure expert witnesses. Unlike Jones’s current federal public defenders, who can afford “very expensive experts,” Gard said, trial lawyers had to file motions to seek funding from the presiding judge. “They can’t control what the court is going to do, and that doesn’t make them ineffective if they don’t get the same amount of funding,” Gard said. Braccio built on the argument. Wasn’t it true, he asked Bowman, that the trial lawyers faced “significant funding obstacles” from the judge?
Both lawyers denied that funding for experts would have been a problem if they had tried harder to get it. Yet Jones’s post-conviction attorney disagreed. The culture throughout Arizona at the time “was that you didn’t get experts, you didn’t get investigators, you didn’t get transcripts,” he insisted, a fatalistic belief that seemed clearly not to have served his client. Outside the narrow legal framework of the hearing, the notion that Jones should remain on death row because the system itself was stacked against him was disturbing.
Although they are both in their late 30s, Braccio was nowhere near as seasoned a litigator as Gard. But he was not new to legal contests over whether someone should live or die. As a young paralegal in the wake of Ring v. Arizona — a seminal U.S. Supreme Court ruling that said juries, not judges, should decide whether to impose death sentences — Braccio worked on the case that prevented the decision from applying retroactively. Written by Justice Antonin Scalia, the 2004 ruling kept Jones on death row.
There was no disputing that the timing of Rachel’s injuries was central to the case — and that the state’s theory no longer held water.
With a cocky air, Braccio seemed eager to win. Yet his scattered and ham-fisted approach seemed to irritate Burgess. So did his habit of asking leading questions, prompting consistent objections sustained by the judge. At times, Burgess seemed simply confused. “I’m sorry. Counsel, you know, look, this isn’t a guessing game where the witness is supposed to figure out what the exhibit is,” he told Braccio at one point. When Braccio’s cross-examination went off the rails, Burgess did not hesitate to interject with questions of his own.
Burgess seemed especially interested in the medical testimony, for obvious reasons. There was simply no disputing that the timing of Rachel’s injuries was central to the case — and that the state’s theory no longer held water. Although there were some differences in their analysis, the medical experts called by Jones’s attorneys all deemed it impossible for Rachel to have been injured so close to her death. This included Keen, the same pathologist who had agreed in 1994 to review the autopsy materials but never received them. Keen had since reviewed images of the tissue slides and other items necessary to determining the timing of Rachel’s fatal injury. Contrary to Braccio’s speculation, Keen firmly concluded that the state’s timeline was wrong. “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.”
On November 1, Jones’s attorneys called Dr. Janice Ophoven, a nationally renowned pediatric forensic pathologist. Ophoven, who first reviewed the tissue slides and other autopsy materials in 2002, has remained adamant that the state’s case against Jones was fatally flawed. “There is no question that the child suffered injuries at the hands of another,” she wrote in 2010. But the evidence used to convict Jones was “absolutely incorrect.”
Ophoven estimated that Rachel’s fatal injury had taken place at least two or three days before she died. To explain, she used a diagram to locate the duodenum, the part of the small intestine where Rachel was fatally wounded. It lies in a “special space,” she explained, between the peritoneum, the lining of the abdominal cavity; and the retroperitoneum, the area behind it. This separation is difficult but critical to understand. Whatever ruptured Rachel’s duodenum, Ophoven said, the immediate effect — an inflammation that becomes more lethal as it spreads — was restricted to the retroperitoneum; it did not expand to the rest of the abdominal cavity until much later. As a result, the symptoms typically associated with an abdominal injury were significantly delayed. Rachel might have felt some discomfort and nausea, Ophoven said, but even doctors can misinterpret such symptoms, leaving the developing peritonitis undetected. Ophoven said she had seen cases in which children were seen by physicians who “pat them on the head and tell them it’s the flu, send them home, and they’re dead the next day.”
Rachel’s symptoms were consistent with this scenario, Ophoven explained. Her “unquenchable thirst” on the night before she died was a sign of dehydration — a precursor to irreversible shock that takes time to develop. An even more concrete indicator was a post-mortem analysis of fluid from Rachel’s eye. It showed “a derangement of body chemistries that takes considerable time,” Ophoven explained.
But the key to figuring out Rachel’s death, Ophoven said, was identifying the point when she started getting sick. A neighbor named Isobel Tafe had told Pesqueira that she saw Rachel looking gray and unwell on Saturday, April 30 — two days before her death. Ophoven considered this an important clue — “the gray color is kind of specific to this kind of process,” she testified. Yet Pesqueira had discarded the statement at the time. “I thought she was giving me the wrong day,” she recalled at the hearing. “The incident we were discussing would have occurred on Sunday.”
Cross-examining Ophoven, Gard suggested she was cherry-picking statements to suit her analysis. After all, Rachel’s older sister had said she looked fine on Sunday morning. Why accept Tafe’s observation while discounting 11-year-old Becky’s? “The evidence contradicts it,” Ophoven responded. Regardless, she was hamstrung by a lack of information. “I needed to look at the last time the child was well,” she said, “and that would have been what the investigation warranted had they not focused on Mr. Jones immediately.”
There was another critical piece to Ophoven’s testimony: an explanation for Rachel’s disturbing appearance at the hospital. Neither Jones nor Gray had recalled seeing so many bruises on Rachel the night before she died. At trial, Howard had expounded on the age of the bruises based on their color and appearance, suggesting Rachel had recently been pummeled. But Ophoven called such analysis “hogwash.” To accurately assess a bruise, she said, you have to examine the tissue beneath the skin. What’s more, her own work had taught her that when children arrive at the hospital in shock, “you’ll start to see marks appearing on their body,” along with spontaneous bleeding. This happens when the body is no longer able to clot blood, a harbinger of irreversible shock. While Ophoven believed that Rachel was a battered child, the bruises on her torso and abdomen — and the blood in her vagina — were not necessarily evidence of new injuries, she explained. They were signs of the “terminal event,” she said, the final stage in her death from peritonitis.
Burgess had granted a request to allow Jones a free hand so that he could take notes, a portion of which were shared with me by his lawyers. “Mostly I am just writing so I can ignore the three police behind me and focus on other things than what is being said,” Jones wrote in neat blue cursive. Listening to the details of the case was like reopening an old wound, he wrote. To calm his nerves, Jones would try to distract himself.
Jones was buoyed by the presence of a handful of supporters in the courtroom. They included his niece and other family members he had not expected to see. He was especially surprised to see his older brother, Otis, a retired law enforcement officer who showed up with his wife. The brothers had not seen each other in years. No one from Rachel’s family was there. But after doing eight years in prison for child abuse, Angela Gray wrote in a 2009 affidavit that she no longer believed Jones had killed her daughter.
Jones was floored by the amount of technology surrounding him in the courtroom. The microphones and monitors were a reminder of how much the world had changed. As he marveled at the luxury of using an ordinary pen, life on the outside felt daunting. “Everyone is emailing, punching keys on their laptop computer, or using cellphones with the ability to take pictures,” he wrote one day. “Would someone like me fit in?”
Jones was especially glad to see Sylvia Lett, his former federal public defender, who has been a lifeline for him. At her home last fall, Lett showed me cards Jones had sent her over the years and described his guarded optimism about the upcoming hearing. “I think that he goes through real periods of time where he doesn’t want to hope,” she said. It was often easier to defer to his lawyers than to remain invested in every twist and turn of his appeals, so he’d say, “I trust you guys. I’m going to put my faith in you. I don’t need to hear about it,” Lett said. “And I think that has maybe also helped him in a weird way.”
Jones had good reason to keep from getting his hopes up. Courts have a tendency to give defense lawyers the benefit of the doubt when it comes to ineffective assistance claims. In Strickland, the Supreme Court held that judges must show deference to lower courts and “indulge a strong presumption that defense counsel was within the wide range of reasonable professional assistance.” This included cases in which missing records made it hard to assess whether lawyers’ performances were part of an overall strategy, which would blunt any attempt at relief.
In his notes, Jones repeatedly expressed gratitude toward his legal team, while trying hard to keep his optimism in check. Even if he died in prison, he wrote, at least he was able to come this far. But other times, he dared to imagine what it would be like to live outside. With the holidays coming, the prison had sent out the list of items at the “Christmas store,” products available for purchase from a private company. He would start saving money to buy canned oysters and clams, coffee, and some Hostess pies, he wrote. “I wonder how much Hostess apple and cherry pies cost on the outside?”
By the time the last witness took the stand at the evidentiary hearing, experts had thoroughly discredited the case against Jones. An accident reconstructionist had examined his old van and visited the site where the Lopez twins had claimed to see Jones hitting a little girl while driving. Considering their height, the motion of the vehicle, and the position of the little girl in the passenger seat, he said, “My conclusion overall was that they could not have seen what they said they saw.” A biomechanics expert echoed this view, describing the twins’ descriptions as “extremely questionable.” A forensic psychologist raised serious concern over the “excessive leading and suggestive questions” during the twins’ interview by police. And a bloodstain analyst cast doubt on the opinions of Pesqueira, who had testified at trial that the blood evidence indicated Jones had assaulted Rachel in the van despite lacking qualifications to back up such analysis.
In response, Braccio used a common courtroom tactic: asking how much they had been paid. It’s an easy way to cast an expert witness as a hired gun in front of a jury, but seemed less likely to impress a federal judge. More convincing were the questions that forced the experts to concede that there were too many unknown factors at play for their conclusions to be completely reliable. But once more, that got to the heart of the problem: the lack of investigation in 1994.
On November 7, 2017, Dr. John Howard took the stand — the state’s second and final witness. Thin, pale, and wearing glasses and a dark suit, Howard looked every bit the veteran pathologist. After providing an off-the-cuff history of medical examiners, he testified that he had conducted “well over” 8,000 autopsies over the course of his career, including hundreds on children under 5 years old. He has served as president of the National Association of Medical Examiners — the group that accredits forensic pathologists all over the country. Today he works for the Spokane County Medical Examiner in Washington state.
Despite his credentials, there were reasons to be concerned about Howard’s work beyond Jones’s case. Prior to his return to Tucson in 2017, the Washington Department of Health had launched an official investigation into Howard. There now were complaints pending in seven separate cases, where his autopsies had come under question, attracting the attention of the press. In one, he said a woman whose naked body was found bound in plastic and duct tape had died of a heart attack associated with alcoholism. In another, a body had been found cut in half and left in the woods — he said the cause of death was undetermined.
Whatever was going on in Spokane, in Tucson, it didn’t matter. Like the question of Jones’s innocence, that was a conversation for another day.
“You have testified now three times under oath on this, right? Would you expect that there be some consistency between those testimonies?”
The monitors in the gallery were darkened as Braccio led Howard through the graphic autopsy photos. He asked about Rachel’s injuries one at a time. There was the scalp laceration, which Jones had said occurred when Rachel had fallen out of his van. It was an acute injury, Howard said, likely having occurred within hours to a day of her death. Then there was the vaginal injury. Ophoven had testified it was likely “weeks old,” and Keen said he would not even put it in the same context as the abdominal injury — “It’s not in the death timeline.” Yet Howard said it showed no signs of being an old injury. “It could be a few hours, it could be a day.”
Finally, Braccio asked Howard about Rachel’s abdominal injury. “My opinion again is this is an acute injury, could be a few hours, typical of a day or the same day as death,” Howard said, reverting to his opinion at Jones’s trial. Braccio showed him his previous statements suggesting the injury might actually have preceded May 1, 1994. Did this change his opinion? No, Howard said. You cannot date an injury exactly, he explained. “It could be just a few hours, it could be 24 hours, it could potentially, or at least in theory, be longer.”
When Sandman stood to cross-examine Howard, he looked weary. The hearing had consumed his office for months. He had deep circles under his eyes. “You have testified now three times under oath on this, right?” Sandman asked, speaking quietly. Yes, Howard replied. “Would you expect that there be some consistency between those testimonies you’ve given on the timing of Rachel’s injures?” It was all a matter of how the questions were worded, Howard explained.
Sandman showed Howard portions of his testimony from the Gray trial and compared them to his testimony at the Jones trial. Howard conceded they could be interpreted as different. “Wouldn’t it be important for you to explain why you are coming up with a different time frame when you testify in the Jones trial?” Burgess asked. Howard said maybe he had reviewed the case further after Gray’s trial and given it more thought. The answer did not impress Burgess. “You understand that in these trials there was a lot at stake, right?” he asked.
Yet it would not take long for Howard to change his testimony again. On redirect, Braccio asked Howard if, in fact, he believed the opinions had been the same at both trials. Yes, Howard said, only the wording was different. “Dr. Howard,” Sandman said moments later, “you just told the judge a couple of minutes ago that your testimony in the Gray trial and the Jones trial were different, weren’t they?”
It was confusing, even surreal. It certainly did not instill confidence in Howard’s opinions. If presented to a jury, Sandman told me after the hearing, “I think they would have to conclude that Dr. Howard doesn’t know anything about when any of this happened.”
Yet this was not necessarily the most troubling part of Howard’s testimony in Tucson. Before the hearing ended, Burgess asked about other autopsies Howard had performed on young kids who died of peritonitis, inquiring what portion involved death within 24 hours of injury. “I’d say most of them, as I recall, but I can’t be certain,” Howard responded. He added, “There are many recorded cases of that.”
This clashed wildly with the previous experts’ testimony. Burgess wanted to be clear about what he was hearing. “So your testimony is you think there are many recorded cases in which there has been a similar injury to the duodenum that resulted in death in 24 hours or less?” Yes, Howard answered.
Burgess told Howard what the court had previously heard, specifically that there were no reported cases in published medical literature in which the same type of injury had resulted in death in less than 48 hours. “Hmm,” Howard muttered. He was unaware of that. “You think you have personally seen instances that you’ve worked on in which this has happened?” Burgess asked. “Yes,” Howard said. “In less than 24 hours?” Yes, he repeated. And the literature would support this? Howard began to say that not all medical literature is published when Burgess interrupted. “I think words are important,” the judge said. He was not asking what might exist in a file somewhere. Howard said he was not prepared to answer that. He would have to review the literature himself.
In an email following the hearing, Howard shared the results of his subsequent online search, which he also sent to prosecutors. It had taken him less than three minutes to find literature to support his testimony, he wrote, pasting in three short paragraphs from a 1997 article in a British medical journal, which contained a short description of a 4-year-old girl with a fatally ruptured duodenum and other injuries. The girl had presented “a one day history of increasing abdominal pain,” it said. This line was in bold and italics. He included no other examples. He also misspelled Rachel Gray.
If Arizona prosecutors considered Howard’s finding convincing, they chose not to include it in their post-hearing brief. For her part, Ophoven found the excerpt “meaningless.” It lacked basic details, she said. “We have no idea when the actual blow occurred that caused the fatality. We don’t know if the cause of the death in the belly was peritonitis. … That case report doesn’t tell us anything.”
Lawyers on both sides filed their final briefs in January. An oral argument is scheduled for March 2.
Shoddy police work, junk forensics, and a flawed defense converged in the case of Barry Jones. Did Arizona send an innocent man to die?
Barry Jones insisted upon his innocence for more than two decades. A federal judge just threw out his conviction.
After more than 23 years insisting upon his innocence while living on Arizona’s death row, Barry Lee Jones had his conviction thrown out by a federal judge on Tuesday. In a 91-page order filed from Anchorage, Alaska, U.S. District Judge Timothy Burgess found that the verdict in Jones’s 1995 trial was the product of a “rush to judgment” by law enforcement, whose “lack of due diligence and thorough professional investigation” was compounded by the failures of Jones’s defense attorneys. Absent such failures, he 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.” Burgess ordered that Jones be immediately retried or released.
The order is a sharp rebuke to the Arizona Attorney General’s Office, which has stubbornly defended Jones’s conviction even as its theory of the crime has fallen apart. In a state that has exonerated nine people from death row, prosecutors fought to preserve Jones’s conviction, relying on procedural barriers while showing indifference to the grave flaws in the case. That Jones was able to overcome such barriers is extraordinary on its own — and further proof of the rot that pervaded the case at every stage. Burgess’s order comes five months after an evidentiary hearing revealed stunning neglect on the part of his defense attorneys at both the trial and post-conviction levels — and profound tunnel vision by Pima County Sheriff’s Detective Sonia Pesqueira, who led the investigation.
Jones, now 59, was convicted and sentenced to die for raping and murdering his girlfriend’s 4-year-old daughter, Rachel Gray. The child died from a blow to the stomach, which tore her duodenum, part of her small intestine, leading to a fatal condition called peritonitis. Jones was arrested shortly after dropping off the child and her mother, Angela Gray, at the hospital early in the morning on May 2, 1994. But the evidence against him was flimsy, based on a narrow window of time during which he’d been seen with Rachel in his van on the afternoon of May 1. A pair of 8-year-old twins would say they saw Jones hitting her while driving the vehicle, and drops of blood in the van and on his clothes were used as proof that Jones had raped the little girl. But there was no other evidence to support this. Investigators never even collected the clothing Rachel wore that day.
At the evidentiary hearing in Tucson last fall, Pesqueira, who has since retired, conceded that Jones became her sole suspect within hours of seeing Rachel’s body at the hospital — and that she never investigated the timing of Rachel’s fatal injury, merely assuming it had occurred the day before she died. Prosecutors nevertheless maintained that Pesqueira “followed the evidence of guilt for Rachel’s injuries, and that road led directly to Jones,” while insisting that the quality of her work was irrelevant, since the question at hand was whether Jones’s defense attorneys were constitutionally ineffective in violation of his Sixth Amendment rights. “Law enforcement has nothing to do with this case,” Assistant Arizona Attorney General Myles Braccio argued at an oral argument in March.
That the evidence no longer supported Jones’s conviction was clear long before the hearing took place, however. In a letter to Jones’s attorneys last year, the attorney general’s office wrote that the current Pima County medical examiner “did not dispute the conclusions of your experts.” These experts have long argued that Rachel’s injuries predated the window presented by the state. Renowned pediatric pathologist Janice Ophoven, who first looked at the case in 2002, has insisted for years that Arizona’s theory of the crime was impossible. At the evidentiary hearing, Ophoven explained how Rachel’s abdominal injury developed over time, with the severity of her illness unclear until it was too late.
Burgess clearly found the defense’s experts compelling, while remaining unconvinced by the ever-shifting opinions of the state’s key witness, former Pima County Medical Examiner John Howard, whose estimates regarding Rachel’s fatal injury have been bewilderingly fluid since he first handled the case back in 1994. “Dr. Howard’s inconsistent answers are plain in the differing testimony he provided on direct examination, on cross-examination, and during examination by the Court during the evidentiary hearing,” Burgess wrote.
“Contrasting the evidence presented at trial with the evidence that could have been presented at trial” made clear that Jones’s trial was unconstitutional, Burgess found. While he did not address the issue of innocence explicitly, the new evidence “undermines considerably the confidence in the outcome,” he wrote.
In a lengthy investigation into the Jones case last year, The Intercept reviewed thousands of pages of trial transcripts, police records, and investigative reports that revealed several hallmarks of wrongful convictions. Two jurors from Jones’s original trial expressed misgivings about the outcome, telling The Intercept that they had been disturbed by the weak defense Jones received. One juror, Hildegard Stoecker, was particularly troubled by the case. “It lessens my faith in the judicial system,” she said.
Despite the egregious flaws in Jones’s conviction, procedural barriers might easily have led to his eventual execution. Among the considerable obstacles was the Antiterrorism and Effective Death Penalty Act, passed one year after Jones was sent to death row. If not for a 2012 U.S. Supreme Court decision in a different Arizona case, Martinez v. Ryan, the law might well have prevented any chance for Jones to show the evidence casting doubt on his conviction. Under AEDPA, if attorneys failed to bring a claim of ineffective assistance during state post-conviction proceedings, that claim was forever barred from being heard in federal court. But Martinez carved out a “narrow exception,” as Burgess noted, holding that if such a claim was itself the result of ineffective lawyering by post-conviction counsel, a defendant should have a chance at relief.
The ruling was a lifeline for Jones. “Before Martinez, our office lost many, many, many ineffective assistance cases because the claims were never raised in the state court,” Sandman said. “If Barry’s initial appeal in the 9th Circuit had moved a little more rapidly, it could have been decided before Martinez and he might have been executed.”
“The evidentiary hearing is the key,” said Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit. “All our clients really want is one fair opportunity to have a full, fair hearing at the post-conviction level.” But such chances are exceedingly rare. Even under Martinez, there was no guarantee of a hearing. If there was any reason for Jones to feel optimistic about his chances before the ruling, it was that Burgess granted an evidentiary hearing at all. Even then, ineffective assistance claims are notoriously hard to win. Under the U.S. Supreme Court case Strickland v. Washington, Jones had to show, first, that his attorneys had provided an unconstitutionally inadequate defense, and second, that the outcome of his trial would likely have been different absent their failures. In his order, Burgess spent considerable detail explaining why Jones met the burden demanded by Strickland.
The state of Arizona has shown contempt for the resources Jones’s current lawyers have devoted to his case. “With a seemingly limitless budget, full-time counsel, investigators, support staff, and a horde of new experts, Jones has spent the past 15 years re-investigating his case,” prosecutors argued in a January filing. At the evidentiary hearing, Braccio and Assistant Attorney General Lacey Gard repeatedly contrasted the money spent by Sandman and his colleagues with the comparatively slim resources of Jones’s original attorneys, arguing that the lawyers could not be considered ineffective for having limited funds.
Burgess flatly dismissed the notion. “The Court rejects any suggestion by Respondents that trial counsel’s deficient pretrial investigation be excused on the grounds that funding for investigators and experts was lacking or inadequate,” he said. In fact, with regard to the failures of Jones’s post-conviction attorney, James Hazel, Burgess drew a parallel to the case of Anthony Ray Hinton, in which the Supreme Court found “counsel’s failure to request additional funding for an expert was unreasonable and constituted deficient performance.” Hinton was exonerated from Alabama’s death row in 2015.
On Tuesday afternoon, Jones’s legal team gathered in a conference room in their Tucson office to call Jones. “They don’t get short-notice phone calls very often,” defense investigator Andrew Sowards said. “He kind of knew something was up.” Upon hearing the news, he said, “there was a sense of relief in Barry’s voice I’ve never heard.”
In an email, the Arizona Attorney General’s Office told The Intercept that it had no comment on the order. If the state does not initiate a retrial within 45 days, Jones must be released. As they wait for the state to signal its next move, Jones’s legal team is reaching out to his family members, many of whom he has not seen in decades. In his time on death row, his three children have grown up and have kids of their own. Speaking to The Intercept over the phone last year, Jones said he felt like an emotional burden on them. “I’m hurting everybody out there by being here. I’ve got to live with that. That’s not easy.” Decades of severe isolation have taken their toll, not to mention the 33 executions carried out in Arizona since 1995, when Jones was sent to death row. “They’ve killed friends of mine,” he said.
The ruling came “right on time,” Sandman said. “He was really struggling.” As Sowards says, “It’s a tough life for a guy with that kind of conviction in any prison — especially on death row.” For 23 years, Jones has been seen as a child rapist and murderer. To be able to return to his unit to share the news was powerful vindication of what he has insisted all along: that he did not commit the crime that sent him to die.
Sowards himself was emotional over the decision. He joined the Arizona Federal Public Defender’s Office in 2008, just as Jones’s initial federal habeas petition had been denied. In the years that followed, he uncovered critical information that had been withheld by the prosecution at trial. Like all the members of Jones’s legal team, Sowards believed in his innocence.
To Sylvia Lett, Jones’s former federal habeas attorney, it was a stroke of good luck that the case fell to Burgess. Speaking to The Intercept last year, she had a hard time remembering when a federal district judge in Arizona granted relief in a death penalty case during the years she represented Jones. “It took a district judge from Alaska having the guts to say, ‘Hey, wait a second, there’s something wrong here,’” Lett said.
“It just seems like this judge got it,” Sowards said. “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.”
Shoddy police work, junk forensics, and a flawed defense converged in the case of Barry Jones. Did Arizona send an innocent man to die?
Rather than allow its case against Jones to withstand the scrutiny of a new trial, the state is determined to undo the order that threw out his conviction.
Elishia Sloan was 15 years old when her mother’s ex-boyfriend went to death row for a crime he swore he didn’t commit. It was 1995; Barry Lee Jones was convicted of raping and murdering a 4-year-old girl at the Desert Vista trailer park in Tucson, Arizona. Sloan had previously lived there with Jones and her mom, Joyce Richmond, who went by Rose at the time. The couple was hooked on drugs — all the adults at the trailer park seemed to be. But Sloan trusted Jones, who was like a father to her. “It’s weird, because usually as a pre-teen, you’re like, ‘You’re not my dad,’” she recalled. “But it wasn’t like that.” She did not believe Jones had killed that little girl.
Jones wrote letters to Sloan and her mother while awaiting trial in the Pima County Jail. He tried to be upbeat, using envelopes illustrated with cartoons. But after he was found guilty and sentenced to die, Sloan and her mom eventually fell out of touch with him. Sloan married a boy from the trailer park, later divorcing him, and settled with her mom in Montana. Richmond got clean while Sloan worked on raising her three kids. As the years passed, they would periodically look for information about Jones’s status on the website of the Arizona Department of Corrections. “It’s a scary feeling, looking at that page,” Sloan said. “But thank God it always said ‘Active.’”
Sloan and Richmond moved back to Tucson last year. Early last month, Sloan Googled Jones’s name and found the series of articles on his case published at The Intercept. They laid out the myriad problems behind Jones’s conviction: tunnel vision and sloppy police work by the Pima County Sheriff’s Department; unreliable evidence, from dubious eyewitness testimony to junk science; and a medical examiner who appeared to have shifted his conclusions to support the state’s case.
When Sloan got to the third story in the series, she called out to her mother, who was in another room. “I was like, ‘Oh my God, they overturned his conviction.’” Sloan sought out Jones’s legal team and spoke to Andrew Sowards, an investigator with the Arizona Federal Public Defender’s Office in Tucson. As it happened, he said, Jones was due in court the next day, October 12.
It was a gray, rainy morning as Sloan and her mother drove their black Ford truck to the U.S. District Court downtown and went up to the sixth floor. Richmond, 68, wore jeans, a coral top, and a gold chain. Sloan, 38, wore a shirt that said “Rock ’n’ Roll Forever.” At 9:20 a.m., Jones was escorted into the courtroom and seated just a few feet in front of them. He wore orange prison garb and looked almost unrecognizable, his remaining hair thin and gray. U.S. marshals walked in and out of the courtroom as Sloan and Richmond tried to follow the back and forth between the attorneys and U.S. District Judge Timothy Burgess.
It was Burgess who had overturned Jones’s conviction, after presiding over an evidentiary hearing that exposed fatal flaws in the case. In his July 31 order, Burgess said Arizona prosecutors had to either retry Jones or release him, within a strict timeframe. But the Arizona Attorney General’s Office, which has spent years fighting to keep Jones on death row, filed a notice of appeal before the 9th Circuit Court to reverse the order and reinstate Jones’s conviction. Prosecutors also sought a stay from Burgess to waive the fast-approaching deadline to retry Jones. “We could be up in the 9th Circuit for a long time,” Jones’s attorney, Assistant Federal Public Defender Cary Sandman, told me. In the meantime, Jones would remain in prison.
Speaking before the court on October 12, Sandman pushed back on the state’s request for a stay. “The fact of the matter is that Mr. Jones has spent nearly 24 years on death row on a premise that’s completely faulty,” he said. That premise was that Jones had fatally assaulted the victim the day before she died. “And we now know there’s no reliable medical evidence to support that,” he said.
“When did it happen? Who did it?” Sandman went on. “We’re left now with no answers to those questions.” He added, “The time has arrived for him to get a fair trial.”
At around 10:30 a.m., Burgess declared a 20-minute recess and said he would hand down his decision when he returned. There was a quiet stir in the courtroom — federal judges rarely rule from the bench. When Burgess returned, he put on his glasses and read his decision aloud. The state’s motion for a stay was denied, he said. Prosecutors would have to move forward with a retrial, to begin by March 13, 2019. Jones was quickly whisked from the courtroom.
At a nearby McDonald’s afterward, Sloan and her mother processed what had happened. It was hard for Richmond to comprehend why the state insisted on fighting Jones’s release. “How do they sleep at night?” she asked. “They think he’s guilty,” her daughter replied. Neither of them believed it was true. In a 2002 affidavit filed by Jones’s legal team, Sloan wrote, “Barry would never hurt a child, especially not sexually. In fact, Barry was the one who always tried to protect the girls in the park from all the perverts who lived there.”
Sloan and her mother could think of plenty of other people in the trailer park who might have hurt that little girl. “If [detectives] had investigated right, they could have investigated everybody,” Richmond said. “There was a lot of weird men there. I’d be the first to admit that. They had just as much opportunity to do anything as anybody else.”
Photos: Arizona Federal Public Defender; Pima County Sheriff’s Department
For a brief moment over the summer, it seemed possible the state of Arizona would be open to some kind of mutual resolution in Jones’s case. The Pima County Conviction Integrity Unit — an office founded in 2015 to review questionable convictions — had signaled it was open to examining it. In an August email, Supervising Deputy County Attorney Rick Unklesbay, who is in charge of the CIU, told me that “once the case comes back to this office we will be reviewing it.” But he backtracked in a more recent email, writing that “it’s a bit premature to have a discussion about where the case is going.”
The notion that the state must not be too hasty carries a cruel irony for Jones. At 60, he has spent much of his adult life on death row, struggling with depression and thoughts of suicide. After his conviction was overturned, “there was a sense of relief in Barry’s voice I’ve never heard,” Sowards told me. Sandman hoped to secure Jones’s release pending the appeal; Jones’s older brother, Otis, an Army veteran retired from law enforcement, signed an affidavit offering to let Jones stay at his home south of Tucson. But prosecutors cast Jones as a danger to the public, warning in filings that “any release from custody will be brief,” since Pima County law enforcement would be poised to re-arrest him in advance of a retrial.
If it was hard to imagine how the state could retry Jones given the dismantling of its case, a retrial nevertheless seemed to be on the horizon after Burgess’s October 12 ruling. Jones was appointed a trial attorney and a hearing was scheduled in Pima County Criminal Court. But on the eve of the hearing, his future was thrown into doubt once again. The state had asked the 9th Circuit to grant the stay denied by Burgess — the hearing was canceled. A week later, the 9th Circuit ruled for the state. It ordered that the appeal proceed as quickly as possible. Rather than allow its case against Jones to withstand the scrutiny of a new trial — and rather than face the likelihood of an acquittal — the attorney general’s office is determined to undo Burgess’s order overturning Jones’s conviction.
For Jones, the setback was compounded by his temporary transfer to Pima County Jail. According to Sandman, prison officials did not send any of the medication Jones takes for anxiety and depression. It was “very traumatic,” Sandman told me. Jones is faring better now, back among his old neighbors at the maximum-security prison in Florence, Sandman said, where Burgess’s order has made the rounds on death row. “It helps quite a bit that most people recognize he shouldn’t be there.”
It has now been more than a year since the evidentiary hearing in Jones’s case. Seven days of testimony in the fall of 2017 revealed how badly the Pima County Sheriff’s Department had botched the investigation into the death of 4-year-old Rachel Gray. The child’s lifeless body was carried into the hospital by her mother, Angela Gray, shortly after 6 a.m. on May 2, 1994. Angela, Jones’s then-girlfriend, had been living with Jones in his trailer along with her three children; it was Jones who dropped her off with Rachel at the hospital, then came under suspicion when he did not return.
In an aggressive interrogation later that day, Sheriff’s Detective Sonia Pesqueira accused Jones of killing Rachel, although it was not at all clear yet how she had died. Pesqueira never investigated the timing of Rachel’s fatal injury — a tear in her duodenum, part of her small intestine, caused by some sort of blow to her stomach. At the evidentiary hearing, it became clear that Pesqueira merely assumed the injury had occurred the day before Rachel died and tailored her investigation accordingly. But medical experts reiterated what they have said for years: that the injury could not have occurred in the window presented by the state.
To prevail at the evidentiary hearing, Jones’s attorneys had to show that his trial lawyers had provided ineffective assistance of counsel in violation of his Sixth Amendment rights. Burgess found that they had proved their case. In his 91-page order overturning the conviction, Burgess concluded that if not for the failures of Jones’s original defense attorneys, “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.” He sharply criticized Pesqueira for her failure to interview alternative suspects, and Dr. John Howard, the former Pima County medical examiner, whose estimates about the timing of Rachel’s fatal injury had inexplicably shifted from his pretrial interviews to his testimony to the hearing decades later. Had Jones’s defense attorneys done their job properly, Burgess wrote, “the jury would likely have found Dr. Howard’s testimony not credible or persuasive.”
Burgess’s decision validated the feelings of at least two jurors who had served on Jones’s trial, both of whom told me that they had been troubled by the weakness of his defense representation. Hildegard Stoecker remained especially disturbed by the case. She had followed news of the evidentiary hearing and was glad to hear that Burgess had overturned Jones’s conviction. Had she known about the issues brought up at the hearing, she wrote in an email this past August, “I know I would never have voted to convict Barry Jones.”
On November 14, prosecutors filed their appeal to the 9th Circuit. It was accompanied by thousands of pages of case records and exhibits — a daunting amount of material to review, especially given the expedited schedule ordered by the court. In their opening brief, prosecutors confidently reasserted Jones’s guilt, while rehashing arguments they have made before.
They insisted the medical evidence presented at the evidentiary hearing actually supported the state’s case against Jones. They argued that Jones’s trial lawyers had been perfectly adequate in investigating Rachel’s fatal injury, for example, by consulting with an independent pathologist. (Just because there was no indication the expert had ever reviewed the evidence necessary to provide an opinion didn’t mean it never happened.) Moreover, prosecutors said, even if the medical evidence did not prove that Jones had raped and fatally beaten Rachel, jurors would have found him guilty of endangering her health by failing to take her to the hospital the night before she died. Under Arizona law, this would still make him guilty of murder — and eligible for the death penalty.
Above all, the appeal invoked the powerful procedural barriers that routinely prevent people like Jones from winning challenges to their convictions. Under the U.S. Supreme Court ruling in Strickland v. Washington, which governs ineffective assistance claims, courts must show considerable deference to the decisions made by defense lawyers. The U.S. Supreme Court has said that there must be a presumption that their actions were undertaken “for tactical reasons rather than through sheer neglect,” prosecutors wrote, arguing that Burgess was wrong to find Jones’s defense unconstitutionally inadequate.
More confusing was the state’s continued insistence that Burgess should never have granted the evidentiary hearing in the first place. Prosecutors invoked the most reliable bulwark against revisiting questionable convictions: the Antiterrorism and Effective Death Penalty Act. Passed in 1996, a year after Jones was convicted, the sweeping law known as AEDPA drastically raised the bar for overturning convictions in federal court, in part by forcing judges like Burgess to show significant deference to rulings by state courts. When it came to ineffective assistance claims, AEDPA also bolstered rules shutting out such claims from federal review if a defendant had previously failed to bring them in state court.
For most people in Jones’s position, AEDPA is indeed the last word. But Jones got back into federal court thanks to a 2012 U.S. Supreme Court ruling that carved out a limited exception, at least in Arizona. Martinez v. Ryan held that, if the failure to bring an ineffective assistance claim in state court was itself due to the ineffectiveness of a state post-conviction attorney, a federal court could consider the claim. For Jones, Martinez opened the door to de novo review — a fresh consideration with no need to defer to a lower court. Crucially, this meant Burgess was not beholden to the strictures of AEDPA when considering his case.
Yet prosecutors insist the law still controls Jones’s fate. “Congress specifically intended AEDPA to limit federal evidentiary development,” they wrote, “and to restrict the general availability of habeas relief.” In other words, it was enough for Burgess to have reviewed Jones’s claim at all, they argued — Jones was not entitled to actually prove it in court.
In Sandman’s view, the AEPDA argument is “absurd.” Among other things, he pointed out that all the Supreme Court rulings prosecutors used to support it predate the Martinez ruling. “I’m not sure why they’re doing that,” he said. “Then again, I’m not sure why they’re doing anything that they are doing. Because if they were the least bit fair-minded, they would get on to either retrying Jones or let him go.”
Apart from dubious legal arguments, the state’s appeal to the 9th Circuit is perhaps most striking for its highly selective narrative about what happened at the Desert Vista in the spring of 1994. Whereas prosecutors once argued that lead detective Sonia Pesqueira followed the evidence of guilt for Rachel’s injuries “directly to Jones,” there is no mention of her now. Instead the state constructed a circumstantial case against Jones, starting with the claim that 4-year-old Rachel was afraid of him in the weeks leading up to her death. But this assertion rests heavily on testimony from Rachel’s sister, Becky, who was 10 years old when her sister died and whose statements evolved significantly over time to further implicate Jones. For a reader intimately familiar not only with Jones’s case but also with the trial of Angela Gray, who was convicted of child abuse but acquitted of murder, it is not hard to notice such things. It is far less clear what the 9th Circuit will make of them.
In our conversation at McDonald’s, Sloan remembered being glad when Jones would return to the trailer at the end of the day. “It wasn’t like, ‘Oh God, he’s home,’ the way it would be if he was an abuser,” she said. Like Jones’s own daughter, Brandie, who told police that her father never hit her, Sloan said Jones never laid a hand on her. She was just a few years older than Brandie; the girls used to sneak out of the trailer to hang out with the kids in the trailer park, which sometimes got them in trouble. Jones disciplined them but never harshly. “Barry caught me in the laundry room, kissing a boy, and I got grounded for, I swear, he said my ‘whole life,’” Sloan said. “But it ended up being a day.” Richmond remembered how if Brandie and Sloan wanted to smoke a cigarette, “they had to come inside and sit down in the room and read a book for an hour.”
“I hated it so much,” Sloan chuckled.
Sloan says she barely remembers anything from the time Jones went to death row. But she recalls being questioned by Pima County sex crimes prosecutor Kathy Mayer back in 1994. Sloan said Mayer tried unsuccessfully to get her to implicate Jones by showing her graphic photos from Rachel’s autopsy. “She’s like, ‘Look at these pictures. This could have been you,’” Sloan said. In her 2002 affidavit, Sloan wrote, “The prosecution wanted me to say how mean he was, but I would not lie.” Mayer, who retired earlier this year, did not return messages seeking comment.
In retrospect, Sloan says, the way they lived at the Desert Vista seems shocking. They didn’t always have food to eat; she remembers getting fresh fruit from a man who would bring produce in a truck from a food bank. Sometimes they got bags of leftover hamburgers that were thrown out by a nearby McDonald’s. “You look at it from the outside, and you’re like, ‘Wow. These poor kids,’” Sloan said. But she doesn’t remember her childhood as unhappy.
Richmond says that for all the problems at the trailer park — and despite what happened to Rachel — the community there tried to look out for one another, especially for the kids. Jones was particularly well-liked, Sloan remembered. “He would give you the shirt off his back,” she said. “Barry was a very nice-looking guy when we met,” Richmond says. She was “head over heels.” Richmond and Sloan passed by the Desert Vista when they returned to Tucson last year. “It looked the same, but it wasn’t the same, you know?” Richmond said.
Sloan felt guilty about falling out of touch with Jones. “It’s weird to see how he’s aged so much,” she said. She became emotional when I mentioned the letters he sent her from jail, which she did not remember now. Richmond said Jones wrote her a letter at one point and said, “‘If you’re not gonna be consistent about writing me, don’t write me anymore.’ And I didn’t. And I should’ve. But 24 years is a long time to write letters every day or every week, you know?”
A year after a federal judge overturned the conviction of Barry Jones, Arizona is still fighting to execute him.
On a clear, blue day in late spring, Arizona Assistant Attorney General Myles Braccio stood before a three-judge panel of the 9th Circuit Court of Appeals. It was just after 10 a.m. Braccio had a half-hour to salvage a 24-year-old death penalty conviction that had been overturned by a federal judge. “Your honors,” he began, “this case today presents nothing more than a habeas petitioner who hired several new experts, many years after his convictions and sentences, in an attempt to undermine the jury’s verdicts.”
The petitioner was Barry Lee Jones, sent to death row in 1995 for an unspeakable crime: the rape and murder of a 4-year-old girl. Jones had always sworn he was innocent — and the experts in question, hired by the Office of the Arizona Federal Public Defender, had dismantled the case against him. During a seven-day evidentiary hearing held in 2017, witnesses had explained in sobering detail why the state’s medical theory of the crime was impossible. Had Jones’s trial lawyers presented such evidence, U.S. District Judge Timothy Burgess ruled in July 2018, “there is 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 swiftly retry or release Jones. Instead, the state appealed to the 9th Circuit. An oral argument was scheduled for June 20 at its headquarters in downtown San Francisco. The courthouse at Seventh and Mission looks stately but plain from the outside, but inside it is startlingly magnificent: an opulent Beaux Arts building replete with marble, vaulted ceilings and a bronze elevator cage, just past security. Braccio, 39, arrived unaccompanied by his colleagues with the Arizona Attorney General’s Office. With a new beard, mustache, and glasses, he was now the face of the state’s determination to execute Jones.
Jones’s actual innocence was not up for debate. Rather, the judges had to decide whether they agreed with Burgess that the new medical evidence would likely have led to an acquittal if considered by a jury. They also had to address a more vexing legal argument advanced by the state: that under the sweeping Anti-Terrorism and Effective Death Penalty Act, or AEDPA, Burgess should not have granted the 2017 evidentiary hearing in the first place.
The state’s position seemed weak, if not desperate, on the one hand. The case against Jones had been so thoroughly discredited that it was hard to imagine how the remaining evidence against him could survive the scrutiny of a new trial. Of course, from the state’s perspective, that was the point of appealing. Arizona prosecutors clearly believed it would be easier to convince a panel of federal judges that Burgess was wrong on the law than it would be to convince a jury to reconvict Jones. At this stage of capital appellate litigation, cases are most often won or lost on procedural technicalities, no matter how clear cut the underlying facts may seem.
The case against Jones had been so thoroughly discredited that it was hard to imagine how the remaining evidence against him could survive the scrutiny of a new trial.
Braccio began by recasting the medical testimony at the 2017 evidentiary hearing. The evidence was actually “double-edged,” he argued. Even if it did not fully support the original theory of the crime, it still supported other elements of the state’s case. And those were enough to reinstate Jones’s conviction and sentence.
The judges looked skeptical. They had reviewed the voluminous records in the case. The files dated back to the morning of May 2, 1994: the day 4-year-old Rachel Gray arrived at a Tucson hospital, lifeless, bruised, and showing injuries to her head and vagina. She and her siblings had been living with their mother, Angela Gray — Jones’s girlfriend at the time — in Jones’s cramped home at the Desert Vista Trailer Park. An autopsy would show that Rachel died from a blow to her abdomen that ruptured her duodenum, part of her small intestine, leading to a deadly condition called peritonitis. There was little doubt someone had violently harmed the child. But the lead detective never investigated the timing of Rachel’s fatal injury, merely assuming it had been inflicted on the eve of her death. Law enforcement immediately seized on Jones, ignoring any alternative suspects.
In his ruling overturning the conviction, Burgess called this a “rush to judgment.” The state had placed its entire theory of the crime within a narrow window on May 1 — during which Jones had been seen with Rachel taking short trips in his van — but now it was clear that Rachel’s condition could never have become so grave so fast. The timeline used to convict Jones no longer fit, 9th Circuit Judge Richard Clifton told Braccio. “We’re close to the OJ anniversary,” he added, “and things don’t fit, you gotta acquit, right?”
In a judicial circuit famed for being the most liberal in the country, Clifton, 68, is among the more conservative members of the bench. Seated next to him was another judge who is no bleeding heart: Judge Johnnie Rawlinson, a former prosecutor from Nevada. The third and most liberal member of the panel was Judge Paul Watford, appointed by Barack Obama. Ideologically, it was a mixed bag. But if there were any deep disagreements over the case, they were hard to discern.
The stakes were high for Jones going into the oral argument. But they would soon become even higher. In July, U.S. Attorney General William Barr announced plans to resume federal executions — and Arizona Attorney General Mark Brnovich immediately signaled plans do the same. “As you know, Arizona has not carried out an execution since 2014,” he wrote in a letter to Gov. Doug Ducey. Under a legal settlement following a notorious botched execution, Arizona had adopted a new one-drug protocol allowing for pentobarbital — the same drug just chosen by the Justice Department. “This suggests that the federal government has successfully obtained pentobarbital,” Brnovich wrote, noting that Arizona had struggled to acquire the drug. He asked for the governor’s help finding a supply to restart executions. “Justice must be done for the victims of these heinous crimes and their families. Those who committed the ultimate crime deserve the ultimate punishment.”
There is no question that the original charges against Jones were some of the worst crimes imaginable. But the oral argument made clear that Arizona is now trying win back Jones’s death sentence on any possible basis — even one that radically alters the original theory of the case.
Jurors found Jones guilty on four counts along with first-degree murder: three counts of child abuse and one of “sexual assault of a minor under fifteen.” Under Arizona’s felony murder law — in which a person can be found guilty of first-degree murder if a death occurs during the commission of a felony — any of the four counts were sufficient to support a death sentence. To reinstate Jones’s conviction, Braccio just needed to convince the panel that a jury would still convict Jones on any one of the original counts.
The judges swiftly shut down Braccio’s first line of argument: that despite all the new medical evidence, a jury would still have convicted Jones of sexual assault. This was a somewhat baffling place to begin; of the original charges against Jones, it was perhaps the weakest. There was never any physical evidence tying Jones to Rachel’s vaginal injury. A pediatric pathologist had found that, while there was evidence of re-injury, the original wound dated back weeks — possibly before Rachel lived with Jones. Braccio’s claim didn’t stand up, Clifton told him. “Because once you open the door to an earlier time period, you open the door to lots of other potential culprits.”
Braccio asked the judges to discard the horrific charges at the heart of the state’s original case and fast-forward to the part where Jones did not take Rachel to the hospital.
Braccio moved on to his next argument: Even if a jury would not have found Jones guilty of physically assaulting Rachel, he said, it would definitely have convicted him on a separate count of child abuse: the failure to take Rachel to the hospital the night before she died.
This argument was harder to dismiss. It was true that Rachel was visibly sick and injured that evening. As Braccio pointed out, multiple neighbors had expressed concern — and one of Jones’s own medical experts had testified that it would have been apparent to anyone that the child was unwell, even if the reason was unclear. Particularly damning for Jones was that he had admitted to lying to Angela Gray about taking Rachel to get medical attention earlier that day. As Jones would tell police, Rachel had bloodied her head after falling from his parked van; she said a little boy had pushed her. Jones said he was taking Rachel to be seen by paramedics at a nearby fire station but changed his mind after spotting a police car. Wishing to avoid being caught with a suspended license, Jones said he drove to a Quik Mart, where an EMT shined a light in Rachel’s eyes and concluded that she was OK. “He said something about her, her eyes being reactive equal, reacting equal, something,” Jones told police.
The head injury was not what killed Rachel. But the lie about taking Rachel to the fire station made Jones an early suspect. However, as Jones’s lawyer, Assistant Federal Public Defender Cary Sandman, argued, it was Gray — known to be physically abusive toward her kids — who did not want to take Rachel to the hospital that night. She was afraid she would be suspected of child abuse. In fact, Pima County prosecutors had tried and failed to win a felony murder conviction against Gray on the same charge in 1995. She was given eight years instead.
But most importantly, Sandman said, the jurors who convicted Jones of “intentionally and knowingly” denying medical care to Rachel had been persuaded that he committed the underlying offenses — namely raping and fatally beating her. In her closing statement at trial, the prosecutor said that Jones had deliberately refused to take Rachel to the hospital in order to cover up his deadly actions. This argument was inextricable from the jury’s decision to find Jones guilty on all counts, Sandman argued. “I think that the conviction has to be set aside,” he told the judges. If the state decides to retry Jones — a decision the attorney general’s office has repeatedly tried to avoid — “they can retry him on that count.”
“You’re now asking us to hypothesize an entirely different trial that never occurred.”
Braccio vehemently disagreed. Jurors had been instructed to consider each count separately, he pointed out. He asked the judges to simply discard the horrific charges at the heart of the state’s original case and fast-forward to the part where Jones did not take Rachel to the hospital. “I think you can look at the evidence from trial in this case and start exactly when he returned to the trailer park with Rachel after these numerous trips he took,” Braccio said. “Subtract everything else — everything else that happened before that. And the record is overwhelming to convict him of fatal neglect in this case.”
Watford pushed back. “You’re now asking us to hypothesize an entirely different trial that never occurred,” he told Braccio. But the judge was more incredulous at a different claim peddled by Braccio: that under Arizona law, it did not matter whether Jones even realized Rachel was gravely injured on the night before she died. His failure to take her to the hospital still made him guilty of murder.
“That’s a pretty tough standard to apply a death penalty to,” Clifton remarked. Never mind the death penalty, Watford said. Was Braccio really suggesting that a parent who fails to take their kid to the hospital can be convicted of murder — even if they have no idea their child’s life is at risk? “Absolutely correct, your honor,” Braccio said.
“I can tell you the Eighth Amendment does not permit someone to get the death penalty for doing that,” Watford responded. “That has got to be true. Correct?” Braccio demurred. But taken to its logical conclusion, that’s exactly what he was saying.
It has been more than a year since Jones first heard the news of his overturned conviction. The order last summer brought a palpable sense of excitement and relief that seemed to mark the end of a very long road. But the state soon made clear it was not giving up, and despite Burgess’s order telling Arizona to retry or release him, Jones was not likely to go home anytime soon after all.
With a ruling from the 9th Circuit panel not likely to come until the end of this year, the next few months will extend what has already felt like an endless series of waits for Jones. It had taken eight months after the 2017 evidentiary hearing for Burgess to overturn his conviction. Before that, it was a lengthy wait for the hearing itself — not to mention the years it took his lawyers to win the hearing to begin with. Even if the 9th Circuit rules in Jones’s favor, there is no reason to believe the state will yield.
I first wrote about Jones in the days leading up to the 2017 hearing. The records, police reports, and trial transcripts were filled with red flags pointing to a wrongful conviction, from prosecutorial misconduct to junk science. Two jurors who voted to find Jones guilty had since expressed misgivings about the case. And friends and neighbors who knew Jones from Desert Vista told me that they never believed he was responsible for Rachel’s death.
In the meantime, there have been significant shifts in Arizona where the death penalty is concerned. The same year as Jones’s evidentiary hearing, several former prosecutors and judges threw their support behind a petition before the U.S. Supreme Court, brought by a man on death row named Abel Daniel Hidalgo, who argued that Arizona’s death penalty was so overly broad as to be unconstitutional. Hidalgo’s attorneys presented statistical data that showed 98 percent of first-degree murder defendants in Maricopa County (where the death penalty is most frequently sought) were eligible for the death penalty. This flew in the face of the notion that capital punishment be reserved only for the most egregious cases — for defendants who are the “worst of the worst.”
Among those who signed an amicus brief supporting Hidalgo was the man who wrote Arizona’s death penalty law more than 40 years ago. As he told me in late 2017, the once-narrow list of aggravating factors that were supposed to tip the scales toward a death sentence in Arizona has “crept and expanded to absurd, broad categories.” Among them: offenses “committed in a cold, calculated manner without pretense of moral or legal justification.”
The Supreme Court ultimately rejected Hidalgo’s petition, explaining that, while the data pointed to a problem that “warrants careful attention and evaluation,” there was not enough evidence presented for the justices to rule one way or another. But Justice Stephen Breyer highlighted other concerning aspects of Arizona’s law that show how broadly the death penalty can be applied. “Arizona’s capital murder statute makes all first-degree murderers eligible for death and defines first-degree murder broadly to include all premeditated homicides along with felony murder based on 22 possible predicate felony offenses,” he wrote.
The most recent Arizona prosecutor to come out against the death penalty is a man closely linked to Jones’s case.
It is under this sentencing scheme that Arizona is now fighting to execute Jones, not for the “ultimate crime,” but for failing to take Rachel to the hospital. Braccio may indeed be right that state law would authorize a death sentence in these circumstances. But few would argue that this is how the state’s death penalty law was intended to work.
The most recent Arizona prosecutor to come out against the death penalty is a man closely linked to Jones’s case. In May, just weeks before the oral argument before the 9th Circuit, Deputy Pima County Attorney Rick Unklesbay published a memoir titled “Arbitrary Death: A Prosecutor’s Perspective on the Death Penalty.” The slim volume contains profiles of capital cases he handled dating back to the 1980s — grisly crimes that he still believes merited the death penalty. But the book reveals how Unklesbay came to decide the system is unworkable. It critiqued the overly broad aggravating factors, some of which are “perplexing, even to prosecutors.”
Yet Unklesbay’s book had a notable omission. While he briefly acknowledged the risk of executing people for crimes they did not commit, he made practically no mention of the nine people exonerated from Arizona’s death row. This is particularly odd given Unklesbay’s current position in Tucson: He is the head of Pima County’s Conviction Integrity Unit. It is literally his job to review cases of possible innocence.
Unklesbay’s abolitionist message would likely ring hollow to Jones. For years his attorneys have sought to submit his case to the Pima County CIU, but Unklesbay has repeatedly declined to accept it. After Burgess vacated Jones’s conviction, Unklesbay told me it was too soon to know whether the CIU would accept the case. In an email last week, Unklesbay echoed this message. “I’m waiting for 9th Circuit as well and waiting to hear from the attorney general about the outcome,” he wrote. “So we haven’t considered anything further on it at this point.”
The oral argument in San Francisco was winding down when the judges finally addressed the most confusing part of the state’s appeal: that under AEDPA, Burgess had been wrong to grant the 2017 evidentiary hearing — and to use it as a basis for overturning Jones’s conviction.
Jones only ever made it back into federal court thanks to a 2012 ruling by the U.S. Supreme Court named Martinez v. Ryan. The decision provided a narrow remedy in cases where there was compelling evidence of poor lawyering that had never been heard in court. The Sixth Amendment right to counsel is a cornerstone of American law. For appellate attorneys in criminal cases, an ineffective assistance claim is the most obvious and viable path to a new trial. Yet, depending in part on the procedural rules in a given state, there is no guarantee a court will meaningfully assess a trial lawyer’s performance, even in a death penalty case. AEDPA, passed a year after Jones was convicted, bolstered rules shutting out ineffective assistance claims from federal review if a defendant had previously failed to bring them in state court.
But Martinez carved out a crucial exception to this rule. If the failure was itself due to the ineffectiveness of a state post-conviction attorney, the justices ruled, a federal court could consider the claim. “Before Martinez, the general rule that applied in every case was, if your post-conviction lawyer is negligent, the client is stuck with that,” Sandman, Jones’s lawyer, told me.
Jones’s case “seems to fit to a tee what Martinez was intended to correct,” Sandman says. “I mean, here’s a guy who’s been in prison for 25 years and he used Martinez to show that he didn’t get a fair trial.” But the Arizona Attorney General’s Office accused Burgess of taking Martinez too far. The ruling created “a gateway” to having an ineffective assistance claim considered — “no more, no less,” the state argued. Just because Jones had overcome this initial hurdle — a concept known as “procedural default” — to get his claim considered by Burgess did not mean he was actually entitled to prove it in court. After all, AEDPA explicitly forbids federal courts from granting an evidentiary hearing on a claim that was never developed in state court.
In other words, if Jones had wished to present the evidence on display at the 2017 evidentiary hearing to win a new trial, he should have gotten his post-conviction attorney to do it back when he was assigned one in 1999. Burgess had violated AEDPA “by using all of this evidence” to decide Jones’s case, Braccio argued.
“Counsel, just so I understand your argument,” Rawlinson said, “are you saying that it was permissible to use this evidence to determine whether or not there was cause to excuse the procedural default, but then a line has to be drawn around that evidence, and it cannot be used on the merits? That’s your argument?”
“Exactly right, your honor,” Braccio said. The judges seemed confounded. What was the point of allowing the claim to be brought before a judge if then there was no evidence for a judge to consider? 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,” Rawlinson said. “That’s the conundrum I’m having with your argument. If the claim was never developed in state court, there will be nothing in the state record. You’d be looking at a vacuum basically.”
“Are you aware of the concept of Catch-22?” Clifton said. “Because this seems like exactly that.”
The judges were clearly not convinced by Braccio’s argument. But they also seemed genuinely unsure about how to proceed. “I feel a little caught,” Clifton confessed. On the one hand, “it seems insane” to allow someone like Jones to develop all the facts that prove he should have a chance to get back into court under Martinez, only to then say a judge must ignore that same evidence. “That doesn’t make any sense.” But the Supreme Court was also clear that Martinez did not overrule any of its earlier decisions — including those that restrict evidentiary development under AEDPA. “So, I feel sort of handcuffed.”
“Are you aware of the concept of Catch-22? Because this seems like exactly that.”
Rawlinson asked Braccio whether there was a specific case that supported his stance. He cited a “combination” of rulings. So, “you’re asking us to cobble together all of these sources and come up with the conclusion that the evidence that’s been garnered in support of [Jones] is no longer in play?” Rawlinson replied. “Correct,” Braccio said.
“This is a separation of powers issue,” Braccio went on. Congress passed AEDPA in order to ensure finality in criminal convictions. Just because the Supreme Court carved out an exception to one of the law’s strict procedural rules did not mean its other rules did not apply. “Well, it appears the Supreme Court has done that in Martinez,” Rawlinson responded. “And we’re bound to follow the Supreme Court’s ruling on this.”
Sandman predicts that the 9th Circuit will ultimately reject Braccio’s argument. But he also expects Arizona to appeal to the Supreme Court. In his view, this will do little more than drag out a process that has unfairly kept his client on death row for more than two and a half decades. The Martinez decision was clearly intended to open a door that had long been closed to people like Jones, he says.
“Martinez was a 7-2 decision,” Sandman says. Only Clarence Thomas and the late Antonin Scalia dissented. Unless John Roberts and Samuel Alito, who voted with the majority, want to suddenly “switch sides,” it is highly unlikely that the court will grant review on the question. To do so would be to say, “‘We want to close the door that we opened.’ And I don’t see that happening. I think they’re going to want to leave the door open.”