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 remembered hearing Rachel say she had fallen from the van. The vehicle’s large interior was filled with tools, divided into compartments and covered with a piece of plywood. Brandie explained that there weren’t any kids Rachel’s age at the trailer park, so she liked to hang out while Jones did mechanical work. “She’ll say, Oh, you got that crooked, and he’ll have to go back over it, and they, like, have a lot of fun together,” Brandie said.

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.

What! No.

I’m not lying, Barry.

No.

I’m sorry.

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.”

Left: Barry Jones at the start of his interrogation at the Pima County Sheriff’s Department in Tucson, Ariz. Detective Michael O’Connell has just told Jones that 4-year-old Rachel Gray is dead. Right: Pima County Sheriff’s Detective Sonia Pesqueira interrogating Barry Jones. 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.

Me?

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.”

Top photo: The van driven by Barry Lee Jones, where he was accused of raping and killing 4-year-old Rachel Gray in Tucson, Ariz.

The post Twenty-Two Years After Arizona Sent Barry Jones to Death Row, the State’s Case Has Fallen Apart appeared first on The Intercept.

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.

Instead, she had drawn conclusions based on her own first impressions at the hospital. “I do my own examination,” she told the grand jury in 1994. “Medical personnel are not in the room.” Given Rachel’s appearance — and the estimate that she had died in the early hours of May 2, 1994 — Pesqueira concluded she had been fatally beaten the day before. This made Jones the likeliest suspect. In a deposition before the 2017 hearing, Pesqueira was asked if she had ever identified anyone who might have hurt Rachel in the days before May 1. “I had no reason to believe [her injury] had gone that long, so no,” she said.

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?

“Yes, sir.”

The yellow work van driven by Barry Jones. The inside was divided into compartments filled with tools.But Pesqueira could not explain why she had never spoken to Zoly. “I think I just — I didn’t do it.”

A week before the hearing in Tucson, The Intercept published a lengthy investigation into the case of Barry Jones. Based on police reports, juror interviews, and thousands of pages of court records, it revealed several hallmarks of wrongful convictions, from junk forensics to prosecutorial misconduct. At the center, however, was a police investigation that succumbed to tunnel vision from the start.

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.

The post Arizona Prosecutors Double Down on Murder Theory as the Evidence Crumbles Around Them appeared first on The Intercept.

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.

Burgess disagreed. Pesqueira’s failures were inextricable from those of Jones’s defense attorneys, he found. “There were several significant red flags that should have objectively and reasonably alerted counsel to the need to investigate the evidence regarding the timing of Rachel’s injuries,” Burgess wrote. Among them was evidence of alternate suspects, such as Jones’s girlfriend, who was “a serial abuser of her children,” as Assistant Arizona Federal Public Defender Cary Sandman reminded the court last spring. At the evidentiary hearing, Pesqueira seemed clueless when shown statements alleging that Gray had hit her children and thrown them down the stairs. “That would have been a good thing to have,” she said.

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.

A Maze of Procedural Barriers

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.

“Right on Time”

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.”

Top photo: A photo of 54-year-old Barry Jones is shown by his former attorney Sylvia Lett.

The post After 23 Years on Death Row, Barry Jones Sees His Conviction Overturned: Arizona Must Retry or Release Him Immediately appeared first on The Intercept.

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.

Elishia Sloan, photographed on Oct. 28 in Tucson, Ariz.

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.”

Left/top: Barry Jones, photographed in October 2018. Right/bottom: Barry Jones on the day of his interrogation and arrest at the Pima County Sheriff’s Department in 1994. 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.”

The Evo A. DeConcini United States Courthouse in Tucson, Ariz., on Oct. 22, 2018.

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.”

Elishia Sloan, photographed on Oct. 28 in Tucson, Ariz.

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.

Desert Vista Village, formerly known as the Desert Vista trailer park, on Oct. 22, 2018, in Tucson, Ariz.

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?”

The post His Conviction Was Overturned. Why Is Arizona Doing Everything in Its Power to Keep Barry Jones on Death Row? appeared first on The Intercept.

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.”

“Subtract Everything Else”

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.

Unintended Consequences

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.

Desert Vista Village, formerly known as the Desert Vista Trailer Park, on Oct. 22, 2018, in Tucson, Ariz.

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.”

“That’s the Conundrum”

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.”

The post Intent on Restoring His Conviction and Death Sentence, Arizona Reinvents Its Case Against Barry Jones appeared first on The Intercept.

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

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

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

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

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

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

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

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

Manufacturing a Problem

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

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

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

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

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

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

A Crucial Exception

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

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

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

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

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

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

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

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

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

A Catch-22

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

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

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

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

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

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

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

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

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

Perpetual Uncertainty

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

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

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

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

The post His Conviction Was Overturned Amid Evidence of Innocence. The Supreme Court Could Throw It All Out. appeared first on The Intercept.

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

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

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

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

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

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

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

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

A Bellwether Case

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

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

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

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

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

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

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

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

Tough Luck

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

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

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

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

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

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

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

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

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

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

The Problem of Innocence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Sense of Urgency

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

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

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

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

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

The post “Innocence Isn’t Enough”: Arizona Urges the Supreme Court to Send Barry Jones Back to Death Row appeared first on The Intercept.

The 6-3 decision in Shinn v. Martinez Ramirez was authored by Justice Clarence Thomas, who wrote that Jones and David Martinez Ramirez, another man on Arizona’s death row, should not have been allowed to present new evidence in federal court showing that they had received ineffective assistance of counsel at trial. In Jones’s case, the evidence dismantled the state’s original theory of the crime, prompting U.S. District Judge Timothy Burgess to vacate his conviction. If not for the failures of Jones’s trial attorneys, Burgess wrote in 2018, jurors likely “would not have convicted him of any of the crimes with which he was charged and previously convicted.”

The Supreme Court’s May 23 ruling renders this evidence — and Burgess’s core findings, which were twice upheld by the 9th U.S. Circuit Court of Appeals — moot. The majority agreed with Arizona’s contention that under the 1996 Antiterrorism and Effective Death Penalty Act, or AEDPA, which sharply limits federal appeals, the hearing in Jones’s case should never have taken place. “In our dual-sovereign system, federal courts must afford unwavering respect” to trials in state court, Thomas wrote. Federal courts “lack the competence and authority to relitigate a state’s criminal case.”

The decision is a devastating blow to Jones, who has always insisted on his innocence. But it also slams the courthouse door on countless incarcerated people whose lawyers failed them at trial. “The court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel,” Justice Sonia Sotomayor wrote in a dissent joined by Justices Stephen Breyer and Elena Kagan.

Sotomayor described Thomas’s opinion as “perverse” and “illogical,” in part because it eviscerates the court’s own 2012 ruling in Martinez v. Ryan, another case out of Arizona. That decision created a much-needed remedy for defendants who received poor representation both at trial and in state post-conviction proceedings. Under the stringent rules governing federal appeals, a defendant who fails to challenge their trial lawyer’s performance in state court is forbidden from bringing that evidence to federal court. But Martinez created an exception. It held that if the failure to develop such evidence in state court was due to a post-conviction lawyer’s own ineffectiveness, the defendant should be excused — and allowed to bring an ineffective assistance claim in federal court.

The ruling in Martinez v. Ryan was narrow. Limited to those with “substantial” claims of poor lawyering, which is difficult to prove, it offered a possible path to relief, not a guarantee. Still, it was a rare lifeline to people on death row, many of whom had been represented by lawyers who were overworked, underpaid, and often unqualified. Notably, the 7-2 majority in 2012 included Chief Justice John Roberts and Justice Samuel Alito, neither of whom raised concerns at the time over how the decision might be reconciled with AEDPA’s procedural hurdles.

Yet both justices joined Thomas, one of two dissenters in Martinez, in weaponizing AEDPA to gut the 10-year-old ruling — an emblem of the court’s newly aggressive indifference to its own legal precedent. Law professor Leah Litman, an expert on AEDPA and constitutional law, compared the decision to the leaked draft opinion in Dobbs v. Mississippi, which stands to overturn Roe v. Wade. Both, she wrote in an article for Slate, make clear “that the court’s conservative supermajority is hellbent on smashing and grabbing precedent and constitutional rights no matter the consequences.”

Perverse and Illogical

Jones was sent to death row for the rape and murder of his girlfriend’s 4-year-old child, Rachel Gray. The child arrived at a Tucson hospital early in the morning on May 2, 1994, and was declared dead on arrival. An autopsy showed a blow to her abdomen, which ruptured her small intestine, developing into a fatal case of peritonitis. Investigators seized on Jones without considering how or when the child sustained the injury. At trial, prosecutors relied on circumstantial evidence and dubious forensic testimony to convince jurors that Jones had repeatedly assaulted Rachel the day before she died. His trial attorneys called no witnesses at the guilt phase aside from his 12-year-old daughter.

Jones’s case seemed like the perfect example of what the Martinez ruling was designed to address. Not only had his trial lawyers failed to investigate the medical evidence that provided the basis for his conviction, but his post-conviction attorney also failed to do the same. At Jones’s evidentiary hearing in 2017, medical experts debunked the narrow timeframe during which the state claimed Jones had assaulted Rachel, showing that her fatal injury could not have developed so quickly. A slew of additional witnesses shed light on shocking investigative failures by the Pima County Sheriff’s Department.

But in Thomas’s view, this hearing was nothing more than an “improper burden imposed on the states” by the Martinez decision. The “sprawling” seven-day hearing “included testimony from no fewer than 10 witnesses, including defense trial counsel, defense post-conviction counsel, the lead investigating detective, three forensic pathologists,” and more, he wrote. The hearing covered “virtually every disputed issue in the case, including the timing of Rachel Gray’s injuries and her cause of death. This wholesale relitigation of Jones’ guilt is plainly not what Martinez envisioned.”

Jones’s case seemed like the perfect example of what the Martinez ruling was designed to address.

In her dissent, Sotomayor pointed out what should have been obvious to the court that handed down the Martinez ruling just a decade ago: Such a thorough hearing “was necessary only because trial counsel failed to present any of that evidence during the guilt phase of Jones’ capital case,” she wrote. “The District Court’s hearing was wide-ranging precisely because the breakdown of the adversarial system in Jones’ case was so egregious.”

The notion that Jones’s hearing was a misapplication of Martinez only really made sense to those who believed that the ruling should be a remedy on paper alone. This had been at the heart of Arizona’s argument for years; prosecutors insisted that even if Martinez allowed Jones to use new evidence to bring forth a claim that his trial lawyers had been ineffective, he was not actually allowed to use that evidence to prove it.

The confusion over such logic was on display at the oral argument in Jones’s case before a 9th Circuit panel in 2019, during which the judges seemed stupefied. When they asked why a judge would allow a claim to be brought if they couldn’t consider the evidence, Arizona Assistant Attorney General Myles Braccio replied that a judge could just look to the state court record. “But that doesn’t make sense if the claim wasn’t developed in state court,” one judge replied. Another called it a “Catch-22.”

At the Supreme Court argument in December, the conservative justices clearly grasped the problem. Thomas kicked off the questions. Why give a defendant the chance to bring a previously barred claim of ineffective assistance of counsel only to forbid them from presenting the evidence to support it? he asked. “It seems pretty worthless.” Justice Brett Kavanaugh noted that in Martinez, the court “obviously carefully crafted an opinion to give you the right to raise an ineffective assistance claim, to make sure it’s considered at least once, and this would really gut that in a lot of cases.”

In the end, this is precisely what the justices decided to do. “While we agree that any such … hearing would serve no purpose,” Thomas wrote, “that is a reason to dispense with Martinez hearings altogether.” In a nod to Arizona’s repeated contention at oral argument that “innocence isn’t enough” for Jones to prevail in this case, Thomas cited the court’s decision in Herrera v. Collins, which famously held that there was no constitutional prohibition against executing someone for a crime they did not commit. In a case like Jones’s, he wrote, federal intervention is “an affront to the state and its citizens who returned a verdict of guilt after considering the evidence before them.”

A Lot at Stake

I first wrote about Barry Jones in 2017, in advance of the evidentiary hearing in Tucson. At that time, there was no reason to suspect that Martinez was in peril. In fact, the Supreme Court had extended the ruling to apply to defendants in Texas and other states whose appellate procedures differed from Arizona’s. Although lawyers for incarcerated people were working hard to use Martinez to win relief for their clients, few had effectively availed themselves of the decision.

Jones was about to be an exception. In the years since his 1995 trial, the central evidence against him had largely fallen apart. Even the pathologist who conducted Rachel’s autopsy and took the stand against Jones at trial, Dr. John Howard, seemed to acknowledge that his testimony had been misleading. At the trial of Jones’s girlfriend, Angela Gray, who was sentenced to eight years in prison for her failure to take her daughter to the hospital the night before she died, Howard estimated that Rachel’s fatal intestinal wound was “most consistent” with occurring 24 hours or longer before her death. Yet at Jones’s subsequent trial, Howard said the injury was consistent with being inflicted 12 hours before Rachel’s estimated time of death — precisely the window the state used to implicate Jones.

Jones’s lead trial attorney, Sean Bruner, failed to confront Howard with the discrepancy. “I could have cross-examined him on that 24-hour/12-hour thing, and I missed that,” Bruner told me in 2017. For his own part, Howard explained in an affidavit that he only answered the questions he was asked on the stand. If trial attorneys had asked whether Rachel’s abdominal injury could have happened “more than 24 hours before her death, I would have answered the question in the affirmative.”

Burgess, the judge, seemed disturbed by Howard’s willingness to change his opinions from one moment to the next. “You understand that in these trials there was a lot at stake, right?” he asked at the 2017 hearing. Yet Howard continued to shift his analysis on the stand, saying that the abdominal injury could have taken place “a few hours, typical of a day or the same day as death,” while adding that “it could be just a few hours, it could be 24 hours, it could potentially, or at least in theory, be longer.”

The evidence that Jones had raped Rachel also failed to stand up to scrutiny. Although Howard said that injuries to the child’s vagina had been inflicted at the same time as her abdominal trauma, experts who reviewed the case for Jones’s federal defenders flatly disputed this. Dr. Janice Ophoven, a renowned pediatric pathologist, testified that the injury was likely “weeks old.” Another pathologist said that he would not even put it in the same context as the abdominal injury: “It’s not in the death timeline.”

His lawyers’ investigative failures “pervaded the entire evidentiary picture presented at trial.”

The vaginal injury was key to law enforcement’s original suspicion of Jones. He had been the one to drop off Rachel and her mother at the hospital, where Pima County Sheriff’s Detective Sonia Pesqueira examined the child herself, finding her covered in bruises, with blood in her underwear. Later that morning, before an autopsy had been conducted, Pesqueira aggressively interrogated Jones, accusing him of killing Rachel and falsely claiming that his own daughter had accused him of hurting the child. Yet she neglected to collect key evidence that could have connected the child’s injuries to the perpetrator, such as the clothes she was wearing the previous day. When part of a pair of underwear was tested for DNA years later, there was nothing that matched Jones.

At the evidentiary hearing, prosecutors insisted that Pesqueira had “followed the evidence of guilt for Rachel’s injuries, and that road led directly to Jones.” Besides, they said, her investigation was irrelevant since the hearing was limited only to the question of whether Jones’s defense attorneys had been ineffective. “Law enforcement has nothing to do with this case,” Braccio said.

But Burgess disagreed. “The evidentiary hearing in this case has demonstrated that the police investigation was colored by a rush to judgment and a lack of due diligence,” he wrote. “Effective counsel would have brought this to the jury’s attention.” For example, there were numerous alternate suspects at the Desert Vista Trailer Park in Tucson where Gray and Jones lived. Pesqueira had no answer for why she neglected to investigate any of them — or why she ignored evidence that Gray herself had physically abused her children.

But the most important witnesses were the experts who showed that Rachel’s fatal injury could never have led to her death so quickly. One was an independent pathologist who agreed back in 1994 to study the microscopic slides from Rachel’s autopsy but never received the materials from Jones’s trial attorneys. “Rachel’s small bowel laceration was not inflicted on May 1, 1994,” he wrote in a 2017 affidavit, and “Jones’s jury was misled to believe otherwise.” Another doctor testified that there were “no reported cases in medical literature in which this type of injury has resulted in death in less than 48 hours.”

Ophoven, the pediatric pathologist, pointed to the physical evidence as well as Rachel’s symptoms to show how the injury to Rachel’s small intestine had become deadly over time. Whatever caused the injury, Ophoven said, the subsequent inflammation typically associated with such abdominal trauma had spread slowly to her abdominal cavity, making it harder to detect. One neighbor had told investigators that Rachel looked gray and unwell on April 30 — two days before her death, which was an important clue. “The gray color is kind of specific to this kind of process,” Ophoven testified. Yet Pesqueira admitted that she dismissed the statement at the time. “I thought she was giving me the wrong day,” she testified.

In his 91-page order, Burgess wrote that such testimony could well have convinced a jury not to convict Jones of murder. His lawyers’ investigative failures “pervaded the entire evidentiary picture presented at trial.” But today, as far as the Supreme Court is concerned, this partial and distorted picture is the only one that matters. The evidence presented at the hearing has been completely swept away.

Killing an Innocent Man

On the day after the Supreme Court’s ruling, Jones’s longtime attorney, Arizona Assistant Federal Defender Cary Sandman, was still grappling with what had happened. Although he’d swiftly assembled his legal team to discuss next steps, it would take another day for him to bring himself to read the decision. At 70, Sandman had hoped to welcome Jones to the outside world as one of the final capstones to a long legal career. Instead, he went to see Jones at the Arizona penitentiary where he remains with no clear way out.

The court’s decision fulfilled Sandman’s worst fears. “There was no reason to take that case unless they were gonna basically neuter Martinez,” he said. After the oral argument in December, Sandman echoed what legal observers were saying: The justices had asked all the right questions. But in the end, this only made the ruling more cruel. “The majority’s Kafkaesque decision will condemn many to wrongful imprisonment, or worse, death,” Sandman said. “All in the name of state’s rights.”

“Putting on a brave face, but underneath I am as scared as I have ever been.”

For attorney Bob Loeb, who argued for Jones before the court, Thomas’s one-paragraph summary of the facts in the case was infuriating to read. “On May 1, 1994, Barry Lee Jones repeatedly beat his girlfriend’s 4-year-old daughter,” it began. Never mind that this time frame and the medical claims it relied on had been repeatedly debunked. In a statement, Loeb wrote that the decision was “tragic for Barry Jones, who remains in prison notwithstanding evidence which the district court determined undercut the murder charge against him — evidence showing that the conviction was based on assertions that were scientifically untrue.”

If there is any hope for Jones going forward, it could lie with the office that sent him to death row in the first place. In the years I’ve reported on Jones’s case, the Pima County Attorney’s Office, which is home to a Conviction and Sentencing Integrity Unit, has repeatedly sidestepped inquiries as to when the office might reinvestigate the conviction. In an email last year, the head of the unit, Jack Chin, wrote that while his office “has a general policy against the death penalty, and all capital sentences which are in our jurisdiction and responsibility will be looked at closely and carefully,” he had “not spent a great deal of time” looking at Jones’s case.

But after the Supreme Court’s ruling, Chin wrote that the CSIU had no plans to revisit the case. “I have checked into it, and under current protocol, the AG’s office will handle further proceedings, not PCAO, so I do not expect that I or anyone else in this office will be involved.”

In the meantime, Jones is starting to see neighbors marched to the execution chamber. After an eight-year hiatus on executions, the state killed 66-year-old Clarence Dixon by lethal injection earlier this month, struggling for 25 minutes to find a vein. Next month Arizona plans to execute another man convicted in Tucson who insists upon his innocence. In an email shared by Sandman, Jones wrote that he was “still processing the news” about the Supreme Court’s ruling. “Putting on a brave face, but underneath I am as scared as I have ever been,” he wrote. “If they can put me back on death row, and they did, then there ain’t a doubt in my mind that they could justify killing an innocent man.”

Update: May 28, 2022
This article has been updated to include a comment received after publication from the head of the Conviction and Sentencing Integrity Unit within the Pima County Attorney’s Office.

The post Supreme Court Guts Its Own Precedent to Allow Arizona to Kill Barry Jones appeared first on The Intercept.

But that never happened. Jones’s moment of victory instead gave way to a whole different nightmare. The Arizona Attorney General’s Office fought to undo Burgess’s order, appealing all the way to the U.S. Supreme Court. In May, the justices ruled in the case, known as Shinn v. Ramirez. They found that Burgess should never have used the new evidence to overturn Jones’s conviction, reinstating his death sentence. Burgess, who announced his retirement last year, returned to Arizona from his home in Alaska in early September for a hearing to decide what should happen next.

Shortly after 10 a.m., Burgess emerged looking almost unrecognizable. Previously clean-cut, he now sported a bushy mustache and beard, along with a relaxed demeanor. For a man whose careful jurisprudence in Jones’s case had been brushed aside by a right-wing court whose legitimacy is increasingly in question, Burgess struck an affable note. “It’s been a while,” he smiled. “I’ve gotten older. My hair has gotten grayer. But it’s good to see all of you again.”

Soft laughter rippled through the courtroom. But Jones remained serious. He was 64, almost the same age as Burgess. For him, getting older meant getting closer to dying behind bars — or on a gurney.

Jones’s spirits lifted when he turned to scan the courtroom. The benches behind him were filled with former members of his legal team, along with friends and relatives. His grown children, Brandie, Andrew, and James, had arrived together to support him. The three were just kids when Jones was sentenced to death in 1995. Now they were in their 30s, with families of their own.

“Innocence is not enough.”

The purpose of the hearing, Burgess said, was to devise a “road map on how to proceed.” The Supreme Court had not only dissolved years of litigation in Jones’s case, but also rolled back its own case law, closing the courthouse door on countless other incarcerated people who received poor lawyering at trial. Although the ruling adversely impacted defendants regardless of whether their guilt was in question, Arizona’s argument was perhaps most devastating for Jones: “Innocence is not enough.”

Jones still had a number of potential legal paths, although none of them were promising. “I look at this as a series of bad choices,” Jones’s longtime attorney, Assistant Federal Public Defender Cary Sandman, told Burgess. From Sandman’s point of view, the most important thing now was for any litigation to “move forward as quickly as possible.”

He acknowledged that this might be unrealistic. The high court’s ruling against Jones was the culmination of litigation dating back at least a decade, when Jones had sought to avail himself of a different Supreme Court decision handed down in 2012. In Martinez v. Ryan, the justices offered a lifeline to incarcerated people who had previously been doomed by ineffective assistance of counsel. Under the strict procedural rules governing federal appeals, if a defendant  failed to challenge their conviction on that basis in state court, they would be subsequently prohibited from doing so in federal court. But Martinez allowed for an exception. If this failure was due to a state post-conviction lawyer’s own incompetence, the Supreme Court held, a petitioner should have a chance to seek relief.

Jones’s case seemed like a perfect test case for Martinez. Accused in 1994 of raping and murdering his girlfriend’s 4-year-old daughter, Jones was appointed trial attorneys who failed him at every turn. The child, Rachel Gray, had died from a sharp blow to her abdomen, which led to a fatal case of peritonitis. The Pima County Sheriff’s Department singled out Jones as the sole suspect before an autopsy had identified her cause of death; prosecutors based their case on a narrow time period during which Jones had been seen with the child the day before she died. Jones’s attorneys never investigated the state’s medical evidence in order to challenge it at trial. If they had, they would have discovered — as Jones’s federal defenders did years later — that the state’s timeline was medically impossible.

It was not until 2017 that experts called by Jones’s attorneys were allowed to debunk this evidence in court. But the Supreme Court’s ruling in Shinn rendered the new medical evidence moot. Now, Sandman said hesitantly, he was inclined to do what Arizona prosecutors had long insisted was his only legitimate option — ask Burgess to review the incomplete evidence developed by Jones’s post-conviction attorney. It seemed like a futile gesture. Like his trial attorneys, Jones’s post-conviction lawyer had failed to investigate the medical evidence that sent Jones to death row. This was the very problem Martinez was supposed to fix.

What if I don’t rule in your favor? Burgess asked. At that point, Sandman said, he would ask Burgess to pause any further federal litigation so that he could pursue an innocence claim in Arizona state court. It was a long shot. And it would prompt protest from the state. Although Arizona’s solicitor general had cited Arizona’s statute as the more appropriate vehicle for Jones to assert his innocence during the Supreme Court oral argument, the state had since argued that Jones should not have that option after all.

The back and forth between Sandman and Burgess cast Jones’s predicament into sharp relief. The possibility that Jones would survive another round of litigation seemed increasingly remote. For that reason, Sandman said, the best thing to do would be to settle Jones’s case.

“This has been a very difficult time,” Sandman said. Since the Martinez ruling first opened the door to his client, his legal team had spent years working in good faith to get evidence of Jones’s wrongful conviction back into court. After hearing all the evidence, that court found that Jones had been “convicted of the most vicious, serious crimes and sentenced to death without a fair trial,” Sandman said. Yet this finding didn’t seem to matter to the state of Arizona. Legal arguments aside, Sandman said, “I’m troubled by the moral aspect of where we’re at in this case.”

“I began my legal training 50 years ago,” Sandman continued. “Perhaps I’m a bit weary and I apologize for that. … But I do think that it’s important for someone on behalf of Mr. Jones to say: Why can’t he be provided a fair trial?”

Nobody Had Time

Since the central evidence against Jones was debunked, the question of what happened to Rachel Gray has largely faded into the background. Although the Arizona attorney general applauded the Supreme Court’s ruling as a victory for victims, Rachel’s mother said years ago that she no longer believed Jones killed her daughter. In their zeal to salvage the case against Jones, state prosecutors have gone to extreme lengths to justify his death sentence, at one point arguing that even if Jones was unaware of the severity of Rachel’s internal injuries, jurors would have condemned him to die for failing to take Rachel to the hospital.

If prosecutors wanted to uncover the truth, there was an obvious way to try. Since 2014, the Pima County Attorney’s Office has been home to a Conviction and Sentencing Integrity Unit, or CSIU, whose purpose is to reinvestigate possible wrongful convictions. Jones’s attorneys have repeatedly asked the office to consider his case to no avail. When Sandman reached out to the unit’s director in 2017, he was directed to the Pima County Attorney’s website, which stated that the unit “does not evaluate cases that are still proceeding on any form of appeal.” This would disqualify all death penalty cases, which involve litigation until the end.

After the Supreme Court’s decision placed Jones back on track for execution, it seemed like the right moment for the office to finally consider his case. But in an email this spring, CSIU director Jack Chin said there were no plans to do so.

A few weeks after the Supreme Court’s ruling, I met the founding director of the CSIU, Rick Unklesbay, near the University of Arizona campus. A career prosecutor who’d helped send 16 people to the state’s death row, he now opposes the death penalty, explaining his reasons in a memoir published in 2019. Yet the danger of executing an innocent person was barely mentioned.

Unklesbay got the idea to start the office after hearing a segment about conviction review units on NPR, which featured the head of the National District Attorneys Association. “I’d been a prosecutor for, at that time, 30 years, and I’d never even heard of them,” he said. He and his boss discussed the way in which wrongful convictions “pretty much get ignored, because nobody had time, or the inclination, really. … And I thought, this would be a great semi-retirement job.”

“Somebody’s going to have to look at it at some point.”

The “unit” was more of a one-man show, although Unklesbay had access to support staff and some two-dozen investigators, law enforcement officers he’d known for years. The setup was not exactly designed to avoid bias; many conviction integrity units have been criticized for leaving prosecutors to police themselves. Despite his efforts to solicit applications from people in prison, Unklesbay said he had a hard time finding innocence cases. So he expanded the scope of the office to include cases in which people were serving sentences that were excessive or unfair.

Whatever the formal requirements listed on the Pima County Attorney’s website, it was clear that Unklesbay had wide discretion to review a case if he wanted to. But he believed that Jones was guilty. Although he agreed that the testimony from the lead detective at the 2017 evidentiary hearing was “horrible,” he knew her as “a good cop.” He also had a lot of respect for Kathy Mayer, the prosecutor in the case. “She was a wonderful attorney and she said, ‘Absolutely, he’s guilty.’”

Unklesbay conceded that he had not had a chance to go through the whole case file. But he said he had prepared to do so after speaking to me about the problem with his policy when it came to capital cases. “I remember it because it gave me a lot of pause. Because you said, ‘Well, but these are always on appeal, right up to the last moment.’ … It was like, well, you’re right. We can’t review it an hour before the execution.”

The tentative review didn’t get very far. As Unklesbay recalled, he pulled Jones’s file from the archives and got the evidentiary hearing transcripts. After a prosecutor was assigned to handle a possible retrial, he told her, “If you think we don’t have the right guy, then we’ll deal with it, but if you think you have a case, then we’ll go through it.”

But Jones’s case never came back to Pima County. By the time the attorney general’s office persuaded the Supreme Court to take the case, both Unklesbay and the prosecutor had left the office. As far as Unklesbay knew, the Jones file remained stored in a closet somewhere. If the case came back, he said he told a colleague before retiring, “somebody’s going to have to look at it at some point.”

Since then, the CSIU’s work has apparently ground to a halt. Chin lasted just over a year as the unit’s director — part of a wave of departures from the county attorney’s office, which has consistently made headlines for being in disarray. Last month, the Tucson Sentinel reported that the office had “stonewalled providing public records about Chin and his work.” Shortly afterward, a new lawyer took charge. According to a spokesperson, “He hasn’t had a chance to begin reviewing the Barry Jones case.”

Unanswered Questions

In the meantime, there are still plenty of questions left to answer. The investigation by the Pima County Sheriff’s Department in 1994 was disturbingly incomplete. Detectives ignored alternate suspects while neglecting to collect basic evidence, such as the clothes Rachel wore on the day before she died. Although investigators spoke to some people at the Desert Vista Trailer Park, where Jones lived with Rachel’s mother, Angela Gray, countless others were never interviewed by police.

Among the unanswered questions is why detectives never appear to have visited one of the central locations Jones went with Rachel the day before she died. According to the state, on Sunday, May 1, 1994, Jones assaulted Rachel in the parking lot of a grocery store called the Choice Market; a pair of 8-year-old twins claimed to have seen Jones hitting Rachel while driving his van. The twins, Laura and Ray Lopez, became key witnesses against Jones at trial. Yet police reports contain no interviews with anyone who might have seen Jones and Rachel together at the store.

A few days after I talked to Unklesbay, I met a woman named Stephanie at the East Lawn Palms Mortuary, where Rachel is buried. She brought items to place on the headstone: a small princess carriage and pink plastic roses.

Stephanie lived at the Desert Vista Trailer Park in the early 1990s. She and her husband, who went by Mo, were friendly with Jones. Although her recollections were sketchy, Stephanie had reached out with information that might have been game-changing for Jones’s defense. She said she was with her husband and two daughters at the Choice Market on the day before Jones’s arrest — and she was convinced that it was actually her husband, not Jones, whom the Lopez children must have seen.

As Stephanie recalled, on May 1, she was in the passenger seat of her van in the parking lot of the Choice Market when Mo, who was driving, backhanded her young daughter in the face. “She was sitting in the back and had gotten out of her seat,” Stephanie said. “He was kind of like pushing her back, saying, ‘Get back in your seat.’” Stephanie doesn’t remember seeing any young children around, but she said a woman yelled at her husband and threatened to call the police.

Stephanie brought photos of her husband and daughters. Mo had long hair, which at least partially matched the description the twins had given to police, of a man with “flying hair.” Her daughters had blonde hair, like the girl the children said they had seen. Although the van in the photos was a rust-colored 1960s Chevrolet panel wagon that did not bear much resemblance to Jones’s yellow 1970s Ford, eyewitness accounts are notoriously unreliable. On the stand at Jones’s trial, Ray Lopez did not recognize Jones’s yellow van when he was shown a photo.

Nevertheless, if there were reasons to be skeptical of Stephanie’s recollections, the accounts from the Lopez twins were themselves inconsistent and unreliable. Investigators interviewed the children in front of their mother, who had seen Jones on the news. “I knew right away the kids saw the same guy,” she told a detective — one of many red flags suggesting that their recollections had been contaminated from the start. Years later, in a 2009 affidavit, Ray Lopez told Jones’s legal team that he had not actually seen the face of the man driving the van. “I saw the man making swinging motions, but I did not see what he swung at nor did I see anyone else in the van.”

Stephanie had struggled with whether to share her recollections. She was fearful of retaliation from the state, which she relies upon for food stamps and housing. At the same time, she was haunted by the possibility that Jones would be executed for a crime he may not have committed. Like everyone I have spoken to who knew him at the Desert Vista, Stephanie insisted that he would never have hurt a child.

Society’s Best Interest

The prosecutors who fought to preserve Jones’s conviction no longer work for the Arizona Attorney General’s Office. One is now a judge in Pinal County. The other, Myles Braccio, spent a year working for the Pima County Attorney’s Office before leaving this past August. He did not respond to emails about the case.

As the hearing in Tucson approached the one-hour mark, Burgess posed a frank question to the state. “What about the possibility of shortcutting all of this litigation … and coming up with some sort of negotiated disposition?” he asked. In other words, settling the case. If the lawyers could reach a deal that would allow the state to preserve some part of its case against Jones, it would save both sides a significant amount of time and money — and potentially allow Jones to leave death row.

“We’re always willing to discuss that,” Deputy Solicitor General Jeffrey Sparks replied. Burgess asked the question another way. “If what you’re telling me is, ‘Yeah, we’ll listen to what you say, but there’s no way we’re gonna settle this case,’ then I’m not gonna waste your time and his time and some other judge’s time with having a settlement discussion,” he said. “So what about it?”

Sparks said the state would be willing to enter into a settlement conference. Asked for his response, Sandman said it would be important for the Pima County Attorney’s Office to participate. Although the state attorney general’s office still had jurisdiction over the case, this was the office that had prosecuted Jones and sent him to death row. If Pima County prosecutors wished to stand by the conviction, they should be given a chance to do so.

Burgess seemed satisfied that both sides had reached a tentative agreement for moving forward. “I do think it would be in everybody’s best interest, including society’s best interest, if we can resolve this case,” he said. A settlement conference has been scheduled for early December.

Leaving the courtroom, Jones’s daughter Brandie fought back tears. She was encouraged by Burgess’s statement, she said. But “I was coming here just hoping that it’s the last time.”

The post Barry Jones Is Running Out of Options. Will He Ever Leave Death Row? appeared first on The Intercept.

Now there may be light at the end of the tunnel. On December 6, a settlement conference will take place at the federal courthouse in downtown Tucson. Jones will be transported from death row to attend. Unlike past hearings in his case, the proceedings will be closed to the public, comprising a series of negotiations between Jones’s legal team and attorneys representing the state. The Pima County Attorney’s Office, which first prosecuted Jones in 1995, will also attend.

Such meetings are common in civil disputes, which are frequently resolved through mediation. But they are unusual in death penalty cases. The decision to undertake the negotiation was made at a hearing earlier this year, where U.S. District Judge Timothy Burgess encouraged both parties to try to find a way to end the protracted legal fight. “I do think it would be in everybody’s best interest, including society’s best interest, if we can resolve this case,” Burgess said.

Burgess has presided over Jones’s case since 2016. Recently retired as the chief U.S. district judge for Alaska, he was appointed to the case due to a conflict of interest: One of Jones’s attorneys at trial had since become a federal magistrate judge, leading Arizona’s federal district judges to recuse themselves. The settlement conference will be overseen by a different Alaska judge, who will act as a mediator.

Jones was sent to death row in 1995 for killing and sexually assaulting his girlfriend’s 4-year-old daughter, Rachel Gray. The evidence against him was thin, based on a narrow time frame during which Jones was seen taking trips with Rachel in his work van the day before she died. At an evidentiary hearing in 2017, lawyers for Jones exposed Pima County investigators’ rush to judgment and presented powerful exculpatory evidence that his trial lawyers had failed to uncover. Most crucially, they called expert witnesses who said that Rachel’s fatal injuries could not have been inflicted so close to her death. In 2018, Burgess vacated Jones’s conviction. If not for the failures of his trial attorneys, Burgess wrote, there was “a reasonable probability that his jury would not have convicted him of any of the crimes” that sent him to death row.

Burgess ordered Arizona to retry or release Jones. Instead, the state attorney general appealed the decision all the way to the U.S. Supreme Court, arguing that under the federal Antiterrorism and Effective Death Penalty Act, Burgess should never have granted Jones the hearing that allowed him to present the new medical evidence. In a 6-3 ruling reversing the court’s own precedent, the justices agreed.

The decision was devastating for Jones, his family, and his legal team. It also dealt a huge blow to countless incarcerated people who had received poor lawyering at trial and in state post-conviction proceedings. In an article for the journal of the New York Bar Association, Sandman wrote that the decision “established a new precedent that will insulate many wrongful convictions and constitutionally tainted death sentences from federal review.” He called on Congress to reverse the ruling — and vowed to keep fighting for Jones.

Among those who have expressed dismay at the Supreme Court’s ruling is an unlikely voice: Rachel Gray’s older sister, Becky, who testified against Jones at his 1995 trial. In a two-part episode of the podcast “Conviction” released last month, Becky, now in her late 30s, told producers that she had begun to question Jones’s guilt after reading The Intercept’s coverage of the case. “For so long I hated this guy, and he could very well have been innocent,” Becky said. “And now, thanks to the Supreme Court, there’s not even anything that can be done.”

Becky’s recollections of Jones were consistent with what many others have shared with The Intercept and Jones’s legal team over the years. She described her mother, Angela Gray, as physically abusive — Gray was sentenced to eight years in prison for child abuse following Rachel’s death — while recalling Jones as patient with Rachel. “If she wanted to talk about anything, he would stop what he was doing and he would sit there and talk to her,” Becky said. Her little sister liked to watch Jones work in his van, she said. “I’m pretty sure she probably knew how to rebuild the transmission.”

A few days before Thanksgiving, lawyers representing the Innocence Network sent a letter to the Pima County Attorney’s Office. “We are writing to provide our perspective on the state’s ethical duties as it approaches the upcoming settlement conference,” the letter read. It noted Burgess’s conservative credentials; a former U.S. attorney appointed to the federal bench by George W. Bush, Burgess reviewed dozens of petitions from incarcerated people challenging their convictions and sentences during his tenure, granting relief in only one case: Jones’s.

More importantly, the letter emphasized the evidence that convinced Burgess to overturn Jones’s conviction in 2018. “While the state may have been largely unaware of much of that evidence when it made its initial charging decision and at the time of trial, its current knowledge of the evidence … triggers the ethical obligations of prosecutors to correct erroneous convictions and seek exoneration when there has been a miscarriage of justice.” This obligation is especially important when a person’s legal options have been effectively exhausted, the letter went on. Prosecutors “are duty bound by their professional ethics, and hopefully most would feel bound by their own conscience, to take affirmative action to correct the taint of an unjust conviction.”

Until now, the Pima County Attorney’s Office has declined to intervene, insisting that there is little it can do as long as Jones’s case remains in the hands of the Arizona attorney general. On Thursday, the new head of the Pima County Conviction and Sentencing Integrity Unit, Brad Roach, maintained that the attorney general retains jurisdiction in the case. But he acknowledged that “there have been serious questions raised” and said that his office is committed to a just outcome. The Pima County attorney is “happy to do whatever it takes to make sure justice is done in this case.”

In the meantime, Jones is spending another holiday season on death row. On Thanksgiving the prison served him turkey and a piece of pie. During a visit two days later, his daughter, Brandie, broke the news that Jones’s 35-year-old nephew had recently died. He put on a strong face, she said. “But I could see that deep down it was hurting him more than he was letting on.” Although Jones does not seem optimistic about the settlement conference, it could be his best chance of reuniting with his family in the coming year. “I’m trying to keep his hopes up.”

The post Barry Jones Is Spending Another Holiday Season on Death Row. Could It Be His Last? appeared first on The Intercept.

Barry Jones rarely dared to imagine his release from death row. Sometimes, when he was feeling low, his paralegal, whom he called Ms. Jennifer, tried to buoy his spirits by promising that one day his legal team would drive up in the “habeas van” to the desert prison in Florence, Arizona, honking and celebrating, ready to take him home. It was never going to be like that, of course. But neither could they have predicted where Jones would find himself on June 15, in his first moments of freedom after 29 years: alone at a Del Taco near the bus station, being told he could not use the phone.

The previous 24 hours had gone mostly according to plan. He’d spent Wednesday giving away most of his things to friends and neighbors on death row. The next morning, around 4:30 a.m., Jones ate some instant oatmeal for breakfast and prepared to leave his cell for the last time. He boarded a van for the ride down to Tucson, the sprawling prison complex fading from view behind him. By 9:30 he’d arrived at Pima County Superior Court, where a judge would sanction his release at a hearing later that morning. Jones had hoped to walk out there and then. Instead, he was driven around by officers with the Arizona Department of Corrections who didn’t seem to know what to do with him. They eventually arrived at a probation office, where he was finally uncuffed and given a change of clothes. Then they dumped him at the Greyhound station downtown.

With no money, no cellphone, and no experience navigating the city in decades, Jones looked for a pay phone to make a collect call but found none. “Even at the bus station — this is a bus station,” he later said with disbelief. “Wow.” So he started walking toward the one downtown address he knew: the office of the Arizona Federal Public Defender.

In a blue T-shirt, dark jeans, and white sneakers, Jones made his way west. He carried a trash bag with a few belongings and an envelope with his release documents inside. It was a typically bright, hot Arizona day. But he was struck by how green Tucson looked compared to Florence, where there was nothing but brown desert as far as the eye could see. “You know, this ain’t so bad,” he thought. If he didn’t find anyone at the office, he could try to find his son’s house. He could even sleep under a bridge if he had to. What mattered was that he was no longer in prison. “I can do whatever I want.”

What Jones didn’t know was that people were frantically looking for him. His daughter, Brandie, had gone with her family to the Pima County Jail, where she’d originally been told Jones would be held until his paperwork cleared. At the federal defender’s office, Jones’s longtime attorney, Cary Sandman, grew increasingly agitated as he made calls and sent emails looking for his client. When Sandman finally got word that Jones had been left at the bus station, retired investigator Andrew Sowards rushed out to pick him up. But when he got there, Jones was gone.

A search party ensued. Members of the legal team and staff from the Arizona Justice Project split up to look for Jones. Finally, around 2 p.m., a voice came through on speakerphone at the office: “We found him.” Jones was just a block away. He had walked more than a mile. A few minutes later, Jones came through the door, sweaty, smiling, and wearing a can you believe this? expression. Jennifer Schneider, the paralegal, gave him a T-shirt she had been saving for that day. It read “Free Bird.”

The first wave of family filed into the office a little while later. In a large conference room with panoramic windows, Jones reunited with his kids, Brandie, Andrew, and James, along with their children and extended relatives, some of whom he was meeting for the first time. His niece recounted the rush to drive to Tucson earlier that day: “I did 80 and 90 all the way down,” she said. Jones didn’t miss a beat, “I don’t wanna hear nothing about breaking the law.”

Before long, the stress from earlier had melted away. Sowards, one of Jones’s biggest supporters, was amazed as he watched Jones joke and laugh surrounded by people. Jones had never liked crowds in prison; Sowards was nervous he might feel overwhelmed. “But it was the exact opposite,” he said. He saw a side of Jones that was lost in the decades he spent on death row. Jones had been a social guy before his wrongful conviction. “He loves people and loves these people in particular. I think he’s always wanted to be the friendly guy that he was way back then.”

People repeatedly asked Jones what he wanted to eat, but he didn’t have an answer — somehow, he wasn’t hungry. But he did say he’d like to grill burgers that weekend. There was a park he liked to go to back in the day. They could have a cookout for Father’s Day. Brandie said it would be hot; maybe they could plan something indoors. But Jones said he’d rather be outside. “I’ve spent enough time inside.”

“Innocence Isn’t Enough”

Jones’s release was the culmination of a harrowing saga that started almost 30 years earlier. After being sentenced to death in 1995 for a crime he swore he didn’t commit, Jones thought his nightmare might be ending in 2018, when a federal judge overturned his conviction. Instead, his case became an emblem of Arizona’s dysfunctional death penalty, the U.S. Supreme Court’s radical rightward shift, and the cruelty of a legal system that prioritizes finality over fairness — even if it means executing an innocent person.

Jones was sentenced to death for the rape and murder of his girlfriend’s 4-year-old daughter, Rachel Gray. The child had died from a sharp blow to her abdomen, which led to a fatal case of peritonitis. The Pima County Sheriff’s Department singled out Jones as the sole suspect before an autopsy had even identified Rachel’s cause of death. Prosecutors based their case on a narrow window of time during which Jones had been seen with Rachel before she died.

But no one investigated the medical evidence: not the lead detective, Sonia Pesqueira, and not Jones’s own court-appointed attorneys, who left the state’s theory unchallenged at trial. It was only when Jones’s federal defenders took his case years later that they discovered the state’s timeline was medically impossible.

The odds of Barry Jones getting this evidence into a courtroom were slim. Ideally, Jones’s state post-conviction lawyer would have challenged the trial lawyers’ failure to investigate the medical evidence, arguing that Jones received ineffective assistance of counsel — a violation of his Sixth Amendment rights. Instead, his state post-conviction attorney compounded the trial lawyers’ mistakes.

Under the burdensome rules dictating federal habeas appeals, if a defendant failed to challenge their trial lawyers’ performance in state court, they would be barred from doing so in federal court. But in 2012, the Supreme Court’s ruling in Martinez v. Ryan carved out a rare path to relief for people like Jones: If the failure to bring such a claim was due to the post-conviction attorney’s own ineffectiveness, the petitioner should have another shot at relief.

The ruling got Jones back into federal court. In 2017, U.S. District Judge Timothy Burgess presided over a seven-day evidentiary hearing in Tucson, where Sandman and his colleagues presented evidence that had never made it to trial. The testimony dismantled the state’s case against Jones, revealing not only the failings of his attorneys, but also law enforcement officials’ rush to judgment.

Burgess seemed disturbed by Pesqueira, who conceded that she never considered other suspects apart from Jones. And he seemed especially fed up with former Pima County medical examiner John Howard, whose testimony was critical to sending Jones to death row. Howard had previously estimated that Rachel’s abdominal injury was “most consistent” with occurring 24 hours or more before she died. But at Jones’s trial, he shortened the time frame to just 12 hours, which neatly fit the state’s theory of the crime.

In 2018, Burgess vacated Jones’s conviction. If not for the failures of his trial attorneys, the judge wrote, jurors likely “would not have convicted him of any of the crimes with which he was charged and previously convicted.” Burgess ordered the state to retry Jones or release him.

Instead, Arizona Attorney General Mark Brnovich appealed, first to the 9th U.S. Circuit Court of Appeals, which upheld the core of Burgess’s findings, and then to the U.S. Supreme Court. The state’s lawyers insisted that under the Antiterrorism and Effective Death Penalty Act, Jones should never have been allowed to present the evidence that persuaded Burgess to vacate his conviction. The argument seemed far-fetched: It would mean gutting the Supreme Court’s own ruling in Martinez v. Ryan. But to the dismay of Jones’s legal team, the court took the case.

During oral argument, the attorney general’s office said that it didn’t matter if the evidence showed Jones was not responsible for the crime that sent him to death row. “Innocence isn’t enough,” the state’s lawyer, Brunn Wall Roysden III, said. In May 2022, the justices agreed, reinstating Jones’s death sentence and destroying a lifeline for incarcerated people whose lawyers failed them at trial.

“Some Measure of Justice”

I first wrote about Barry Jones in 2017, in advance of the federal evidentiary hearing in Tucson. One of the first people I met was a juror from his trial, who was haunted by her role in the case. As she recalled it, the evidence against Jones was weak — so weak, she thought surely his conviction had already been overturned. She was distressed to learn that he still faced execution. Before she died in 2020, she expressed hope that Jones would be exonerated.

Over time, I came to learn just how many people believed in Jones’s innocence, including current and former members of his legal team. They worried about Jones’s mental health, which had been ravaged by his time on death row. Before his conviction was overturned, Jones saw 34 neighbors taken to the death chamber. After executions were placed on hold in Arizona following a series of botched lethal injections, Brnovich pushed to resume them last year. In the months after the Supreme Court’s decision in Jones’s case, known as Shinn v. Ramirez, three more men were executed.

In the meantime, however, some critical shifts began to take place. At a hearing in September, Burgess urged lawyers on both sides to consider settling Jones’s case through mediation. “I do think it would be in everybody’s best interest, including society’s best interest, if we can resolve this case,” he said. A judge was assigned to oversee the process.

Two months later, Arizona voters elected a new attorney general, with Democratic candidate Kris Mayes defeating her Republican opponent by just a few hundred votes — one of the closest margins in state history. For Arizona’s death row, the result was literally the difference between life and death. In January, Mayes announced that she was putting executions on hold.

Throughout it all, Jones tried not to get his hopes up. He was encouraged by the judge overseeing the mediation; at their first meeting in December, she had spoken to him for an hour and seemed genuinely committed to a just result. But after almost three decades of wrongful incarceration, he knew better than to pin his hopes on any legal process.

As the months passed, Sandman tried to visit Jones in Florence once a week. In April, he told Jones that there was a tentative agreement that could allow him to walk free, but it would require him to plead guilty to failing to take Rachel to the hospital the night before she died.

The Supreme Court decision left Barry Jones with “a series of bad choices.”

Jones never wished to plead guilty to any part of his case. But as Sandman told Burgess at the hearing last fall, the Shinn decision left them with “a series of bad choices.” At 64, Jones did not have time to litigate for another decade — and even if he did, there was little reason to trust the courts. “The only way to get some measure of justice for him was to compromise,” Sandman said. Jones’s close family friend, Debbie Wheeler, urged him to agree to the deal. “I said, ‘Barry, just sign whatever you have to do to get out.’”

On April 19, Burgess approved the settlement agreement between Jones’s attorneys and the state. Two weeks later, Sandman filed a petition with the Pima County Superior Court requesting that Jones’s conviction be overturned. The state would agree to the request on the condition that Jones plead guilty to the agreed-upon charge. He would then be sentenced to 25 years with credit for time served.

On May 22, the one-year anniversary of the Shinn decision, Pima Superior Court Judge Kyle Bryson agreed to the terms. He set a hearing for June 15. Over the next few weeks, the reality that Jones might actually be released started to sink in. “You could tell he was believing it,” Wheeler said. “But it was just so hard for him to process it.”

Just before 11 a.m. on June 15, dozens of people packed a small courtroom on the eighth floor of the courthouse in downtown Tucson. In his orange prison uniform, Jones turned and smiled at his family and friends. Brandie, his daughter, blew him a kiss and cracked a joke about his thinning hair. Her dad looked happy, she said. Everyone seemed to know it was real this time.

Still, it was impossible not to be anxious. Sandman had felt like he was walking a tightrope for months. It wasn’t until the week of the hearing that he finally felt “99.9 percent sure” the judge would sign the order. Sitting in a row behind him was Sowards, the retired investigator, whose anxiety shot up as soon as the judge started talking. When Bryson said he was taking up Jones’s “potential change in plea and sentencing,” all Sowards could hear was the word “potential” ringing in his ears.

“I can’t give him back the 30 years that was taken from him. But I hope he can make the best of his freedom.”

Before the judge signed the order, a victim’s advocate approached the podium to share a statement from Rachel’s sister Becky. She was 10 years old when Jones was accused of killing her sister and testified against him at trial. I never managed to reach Becky, but in 2022 she was contacted by producers with the true-crime podcast “Conviction,” who made a two-part series about Jones’s case based on my reporting. It was then that Becky learned of the evidence that had emerged after Jones was sent to death row. By the end of her statement, several people in the courtroom were wiping away tears, including Jones.

“Your honor, I have spent the better part of almost 30 years hating the defendant for what happened to my sister Rachel,” the statement began. Although Becky had forgiven Jones for what she thought he’d done, she was shocked to learn about the Supreme Court’s decision in his case, which came down on her birthday. She no longer believed he was a murderer. In fact, she wished he could be released with no strings attached. “I can’t give him back the 30 years that was taken from him. But I hope he can make the best of his freedom.”

Free Bird

By the end of the day, Jones was settled into a rental unit overlooking a pool near the University of Arizona. Sowards had arranged for Jones to stay there for the next two weeks, and the fridge was stocked with food: burger patties, bottles of Pepsi, and ice cream. A jar of candy sat on the counter next to a Keurig coffee pot. Jones had never seen anything like it.

Schneider, the paralegal, had gotten Jones a flip phone, filling it with contacts. They discussed email and Wi-Fi — technology that he would learn to use. But there were so many other things to take in, the kinds of things that others take for granted. At the lawyers’ office, he’d walked by a bathroom and stared for a moment. He hadn’t seen a porcelain toilet in almost 30 years.

When we first spoke in 2017, Jones told me how nervous he felt contemplating life on the outside. Now, he said, “I just wanna be your average Joe.” He was immensely grateful for his legal team, who treated him like family. Sowards had posted a GoFundMe to help with housing and other basic needs. There were plans to take him shopping, out to eat, and to get him a state ID. One of his former attorneys was even planning to stay at the apartment with him that night, just to make sure he was OK. Still, Jones admitted, “I’m worried about most everything.”

Standing by the pool as the evening wore down, Jones joked that he would have to learn the names of all his grandchildren. It was hard not to think about the horror of what he’d been accused of and how unfathomable it seemed. Since 1994, family and friends had always said Jones would never hurt a child. Now the rest of the world could see what they knew to be true. Jones smiled as his granddaughter splashed around. “It does my heart good to see that,” he said.

The post After 29 Years on Death Row, Barry Jones Was Dumped at a Bus Station. But He Was Finally Free. appeared first on The Intercept.