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

Elishia Sloan was 15 years old when her mother’s ex-boyfriend went to death row for a crime he swore he didn’t commit. It was 1995; Barry Lee Jones was convicted of raping and murdering a 4-year-old girl at the Desert Vista trailer park in Tucson, Arizona. Sloan had previously lived there with Jones and her mom, Joyce Richmond, who went by Rose at the time. The couple was hooked on drugs — all the adults at the trailer park seemed to be. But Sloan trusted Jones, who was like a father to her. “It’s weird, because usually as a pre-teen, you’re like, ‘You’re not my dad,’” she recalled. “But it wasn’t like that.” She did not believe Jones had killed that little girl.

Jones wrote letters to Sloan and her mother while awaiting trial in the Pima County Jail. He tried to be upbeat, using envelopes illustrated with cartoons. But after he was found guilty and sentenced to die, Sloan and her mom eventually fell out of touch with him. Sloan married a boy from the trailer park, later divorcing him, and settled with her mom in Montana. Richmond got clean while Sloan worked on raising her three kids. As the years passed, they would periodically look for information about Jones’s status on the website of the Arizona Department of Corrections. “It’s a scary feeling, looking at that page,” Sloan said. “But thank God it always said ‘Active.’”

Sloan and Richmond moved back to Tucson last year. Early last month, Sloan Googled Jones’s name and found the series of articles on his case published at The Intercept. They laid out the myriad problems behind Jones’s conviction: tunnel vision and sloppy police work by the Pima County Sheriff’s Department; unreliable evidence, from dubious eyewitness testimony to junk science; and a medical examiner who appeared to have shifted his conclusions to support the state’s case.

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Elishia Sloan, photographed on Oct. 28, 2018, 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.

burgess-1542486938

U.S. District Judge Timothy Burgess.

Photo: U.S. Court for the 9th Circuit

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.”

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 seen on Oct. 22 in Tucson, Ariz. 
(Caitlin O'Hara for The Intercept)

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 at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Elishia Sloan, photographed on Oct. 28, 2018, 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 seen on Oct. 22 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

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?”

SOURCE:

www.theintercept.com

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