Barry Jones Is Running Out of Options. Will He Ever Leave Death Row?

Barry Jones sat quietly in an orange prison jumpsuit, his surroundings familiar yet disorienting. He was once again at the federal courthouse in downtown Tucson, Arizona. Five years earlier, in the same building, his lawyers had presented new evidence that convinced U.S. District Judge Timothy Burgess to vacate Jones’s conviction. More than two decades after Jones was sent to death row for a crime he swore he did not commit, Burgess concluded that his trial had been fatally flawed — and that Jones should be retried or released.

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.

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.”

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.

Still, there were problems with Stephanie’s recollections. At times, it was hard to untangle the details she remembered about the case from the things she had read in my articles. And she was confused about the exact years she lived at the Desert Vista; as she recalled it, she had moved away from the trailer park by 1994. This did not mean that she and her husband were not at the Choice Market that day; as Stephanie recalls, they were on their way to a swap meet in South Tucson, which took place every weekend. But there was no good way to corroborate that the incident occurred on May 1, 1994. Nor was Moe available to confirm the account. He died of cancer in 2019.

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.”