Today, Explained - Innocence is not enough

Episode Date: June 6, 2022

The Supreme Court is going to let Arizona kill Barry Jones, a man whose rape and murder convictions were vacated in 2018. This episode was produced by Hady Mawajdeh, fact-checked by Laura Bullard and Tori Dominguez, engineered by Efim Shapiro, and edited by Matt Collette and Sean Rameswaram, who also hosted. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

The Supreme Court of the United States has really been on one lately. I mean, there's the obvious thing. But did you hear that it's okay to put innocent people to death now? A new Supreme Court ruling limits the legal challenges defendants can make if they were represented by a terrible public defender. And there's a guy on death row right now who might get executed as a result. Barry Lee Jones was sentenced to death for killing a four-year-old girl. But just a few years ago, a judge tossed out the verdict and ordered a retrial because of a shoddy defense.

Today's ruling means that retrial won't happen. On Today Explained, we're going to tell you the story of Barry Jones and how his case got up to the Supreme Court and how the Supreme Court decided that innocence is no longer enough to exonerate someone from being executed for a crime they maybe didn't commit. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit Superstore.ca to get started.

Today explained Sean Ramos for him. We're going to try and wrap our heads around a doozy of the Supreme Court decision. It says innocence isn't necessarily enough to exonerate someone who could have been wrongly convicted, even if that person might die. And the person who might die first as a result is named Barry Jones. And before we get to the Supreme Court, we're going to tell you Barry's story. And this is not a story for kids. In fact, if you're not in the mood to hear about murder and rape, you might want to skip it. We will give you a moment here. Liliana Segura has been covering Barry Jones for years.

She's an investigative reporter at The Intercept. So in 1994, Barry Jones was a guy who was living in Tucson at a trailer park called the Desert Vista. This was a part of Tucson where a lot of people who were living there were kind of on the margins. There was a lot of poverty. There was a fair amount of drug use. And Barry Jones had had some run-ins with the law and had had a drug problem himself. But otherwise, at this trailer park where he lived, was considered kind of a good neighbor. He was well-liked.

He was trusted by the kids who lived there. And in 1994, his girlfriend, Angela Gray, had fairly recently moved into his trailer with her kids, including Rachel Gray, who was four years old. On the morning of May 2nd, 1994, Angela Gray and Barry Jones find Rachel in her bed, unresponsive. Rachel had been unwell the day before, and, you know, they sort of just decided to wait and see.

But that morning they wake up. She's not responsive. They rush to take her to wait and see. But that morning they wake up. She's not responsive. They rush to take her to a nearby hospital. Barry Jones is driving. He drops them off at this hospital and then leaves. When Rachel Gray is taken to the hospital and declared dead on arrival, an autopsy is not performed until the next day. So it's not immediately clear how she died. But when an autopsy is performed, it shows that Rachel Gray actually died from a sharp blow to her abdomen that had lacerated a part of her small intestine. And this had led to a fatal condition called peritonitis. So that's actually how Rachel Gray died. However, on the day that she's taken to the hospital, she appears to be covered in bruises.

She's got injuries to her head, apparently to different parts of her body. And extremely alarming is the fact that there appear to be injuries to her vagina. And so one of the first things that investigators notice is that there are signs that she may have been sexually assaulted. And very, very quickly, all eyes are on Barry Jones. The Pima Sheriff's County detective, after she questions Angela, immediately sets out to find Barry Jones. And he's dragged into an interrogation room. And for hours, he's questioned about Rachel Gray. Now, this is before they know how Rachel Gray died.

But immediately, Barry Jones is being accused of killing her. They say, we know you did this. Why did you do this? Your own daughter has made accusations against you. They do this, like, really dramatic interrogation. But Barry Jones, not only does he say he has no idea how Rachel dies in the interrogation room, he seems to be sincerely shocked, horrified, agonized, just sort of freaking out about the fact that this little girl has died. And he considers her to have died on his watch because he said that she had fallen out of his van the day before. So all eyes are on Barry Jones, but the problem is that the cops really don't pursue

some of the most basic evidence that would not only uncover how Rachel Gray sustained her fatal injury, but any evidence that would link Barry Jones to her fatal injuries. They don't really look at any other suspects. They don't consider, you know, that in this trailer park, there were a lot of people who had access to this young child. And so they really fail to undertake the kind of investigation that one needs to take to solve a murder.

So they charge Barry Jones. They charge Barry Jones. And at trial, what they actually present is sort of a combination of really dubious forensic evidence. There is really almost no physical evidence linking Barry Jones to this at all. Crucial circumstantial evidence is that on the day before Rachel Gray died on May 1st, Barry Jones had been seen with her at various points throughout the afternoon. This is a very narrow window of time where he had been seen taking her to a nearby grocery store in his van. And the state presents a scenario where within that window of time, Barry Jones beat Rachel

Gray in the head and in the stomach, raped her, and then brought her home. And so the state's entire case really rested on this very particular window of time where people said they saw Barry Jones. Now, even these eyewitness accounts were pretty weak if you drill down into them. One of the most important witnesses for the states, or two of them, were a pair of twins, eight-year-old twins, who had supposedly seen Barry Jones hitting a little girl in his van outside of a grocery store. There are many reasons to doubt these accounts, not the least of which is the way that the interview was conducted with these children. But there was also evidence that, you

know, we know to be sort of rooted in junk science. This police detective or Pima County detective gave elaborate testimony about how she could tell from trace amounts of blood found in the van that Barry Jones had hit Rachel over the head and this was blood spatter that was found on his van. Anyone who covers these kinds of cases know that blood spatter evidence is one of a whole bunch of different kinds of forensic evidence that can be very, very unreliable, but highly prejudicial if it's sort of presented by somebody who has the kind of authority that a Pima County detective would have. What kind of defense do Barry Jones's lawyers present? Barry Jones's lawyers present practically no defense.

Literally, they call one witness, and that witness is Barry's 12-year-old daughter, Brandy. That's the only person who takes the stand at the guilt phase for Barry Jones. They don't present their own forensic pathologist who could dispute or debunk the time frame during which the state insists that this crime took place. They don't call other people who are around the Desert Vista who could provide additional context for how and when Rachel might have been injured. They don't present anything, really. And so that's hugely damaging to Barry Jones. So it doesn't take too long for jurors to convict him. And a judge then sentences him to death.

So what happens between 1995 and Barry Jones' case ending up at the Supreme Court this term? In any death penalty case, you obviously are entitled to a series of appeals. Now, Barry Jones, in theory, should have received a lawyer who could have, at an appellate stage called state post-conviction, had a lawyer who could present to a judge evidence that Barry Jones's attorneys at trial had been ineffective, that this had been a violation of his constitutional rights. The Sixth Amendment of the Constitution guarantees that we're supposed

to have lawyers who will fight for our rights and represent us at trial. But Barry Jones' post-conviction attorney also failed him. This attorney crucially also failed to investigate the medical evidence underpinning Barry Jones's conviction. So Barry Jones is not well represented by his trial attorneys. He's not well represented by his post-conviction attorneys. Then in 2001, his federal habeas attorneys, this is the sort of federal level attorneys who are assigned this case, file what's known as a federal habeas petition. This is essentially where they say, these are all the mistakes that were made. This is the evidence that should have been uncovered. This is what his lawyer should have done. But all of that is prohibited from being brought to any court because his state

post-conviction attorney failed to bring it. This gets into some really weedy procedural stuff, but it's really, really important because essentially, Barry Jones was being denied from bringing any of the evidence that could point to his innocence before any court. And it's not until 2017 that his legal team is given an opportunity to present this evidence at an evidentiary hearing. So 22 years after he's convicted, someone finally tries to defend him? Is that what you're saying?

That's right. So in 2017, there is this evidentiary hearing in Tucson where Barry Jones' federal defenders are able to, for the first time, present critical evidence that casts doubt on his case. You know, technically, this proceeding was meant to show that Barry Jones's trial attorneys had been ineffective, that they had failed to present the most important evidence in his case, and also that his post-conviction attorney had been ineffective. That's what these lawyers have to show. But over the course of this hearing, what they really reveal is evidence that the state's whole timeline, whole medical timeline, and the whole theory of the case relied on this narrow window where Barry Jones supposedly inflicted this fatal injury on Rachel Gray. But all the evidence

pointed to the fact that that could not have happened the way that the state insisted and that, in fact, these injuries long preceded May 1st, 1994, which is when the state claimed that Mary Jones had fatally beaten a Rachel Gray. So the state's case really falls apart. And I was at this evidentiary hearing in 2017. And it was almost surreal to see the way in which the state really had no case anymore and how disturbed this federal judge was as he listened to some of the failures, not only from Barry Jones's trial attorney, but also from law enforcement in this case. They really failed to investigate this case. So what's essentially revealed in 2017 is that Barry Jones couldn't have killed Rachel Gray, at least when the state said he did, because she had received a deadly injury the previous day. A federal judge is shocked at the failures in the prosecution and the defense. What happens next? So based on the evidence that was presented by Barry Jones's federal defenders at

this 2017 hearing, in 2018, this federal judge releases a 91-page order recapping all of what was presented at this hearing and saying in no uncertain terms that but for the failures of Barry Jones's trial attorneys, it was very unlikely that any juror would have found him guilty or convicted him of any of the charges that sentenced him to death. So this order is telling the state of Arizona, you need to either release this guy or retry him. And rather than doing that, rather than allow this case to sort of stand up to the scrutiny of a retrial, the state responds by appealing. And they appeal and they appeal and they appeal all the way to the Supreme Court. We're going to the Supreme Court in a minute on Today Explained. Support for today explained comes from Ramp.

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Liliana Segura from The Intercept told us Barry Jones' story up to the Supreme Court. Vox's Ian Millhiser is here to parse the law. Oh, man. Okay, so the law behind this case is a little technical, but it leads to a truly unjust outcome. You know, the outcome means that Barry Jones, who is almost certainly innocent, will almost certainly be executed for a crime that he did not commit. What precedents do we have to understand here to wrap our heads around the outcome for Barry Jones? So the first case to be aware of is a case called Strickland v. Washington. This is a fairly old case from 1984. And Strickland said that if you are a criminal defendant,

you don't just have a right to have a lawyer warming a seat next to you at your trial. You actually have a right to adequate representation. It's fairly difficult to win a lawsuit under Strickland. You have to show that your lawyer botched the case so badly that you probably would have gotten a different and better result if the lawyer hadn't botched it so badly. But if you have a lawyer who does who performs that poorly, then your trial is supposed to be invalidated and you get a second trial. So what happened to Barry Jones is he got his first proceeding, and his lawyer really was that bad. He then got a second proceeding, and at the second proceeding, he also had a terrible lawyer who was also constitutionally ineffective. And so the question in Barry Jones's case is, what happens essentially when you have ineffective assistance of counsel twice?

What happens when you have constitutionally inadequate counsel at your trial and then you get that second proceeding and your lawyer is still so bad that they fail to raise the arguments that should have exonerated you? And this question, what happens when you have awful representation twice is what brings Barry Jones to the Supreme Court. That's exactly right. And this case shouldn't have been in the Supreme Court in the first place. It should have been a very easy case. And the reason why is because there were two previous Supreme Court decisions. One is called Martinez. The other is called Trevino. And what those cases said is in these rare cases where you have ineffective assistance of counsel twice, then the federal courts are supposed to step in. Then a federal court is supposed to hold what is called a habeas proceeding. And the federal court will determine whether or not your lawyer screwed up so badly that you should get a second trial.

So the idea is there always has to be some kind of proceeding. It could be a state court proceeding. It could be a federal court proceeding. bad that it doesn't count. Then the federal courts step in and they provide that check to make sure someone has the opportunity to look over the case and make sure that at the original trial, the lawyers did a good enough job for that trial to count. Okay. That was what the law used to be. Then Barry Jones went to the Supreme Court. This is a case called Shin v. Ramirez.

Wait, why isn't it called Barry Jones v. something? The reason why is because there's two parties in this case. One is Barry Jones. The other was a guy named David Ramirez. And there's a lot of evidence that David Ramirez is intellectually disabled. His lawyers failed to adequately show that. And the reason why that matters is because intellectually disabled people cannot be executed. They can be sentenced to life in prison, but constitutionally they cannot be executed. Got it. So what happens in this Ramirez case? So Shinvi Ramirez comes up to the Supreme Court. And again, the rule is if you don't have a way to challenge the quality of your lawyer at your trial, federal courts step in. You have a habeas proceeding. What the Supreme Court said in the Shin case is they said, oh, you still get a habeas proceeding, but the federal court isn't allowed to look at the evidence that would have exonerated Barry Jones, the evidence that wasn't

introduced in the court below because his lawyers were so bad. So he still gets a proceeding, but the proceeding is meaningless because he's not allowed to introduce the evidence that the case turns on. The Supreme Court says you can get a new proceeding if your lawyer sucks, but the new lawyer can't introduce new evidence. Why did the Supreme Court say that? Okay, so there is a law called the Anti-Terrorism and Effective Death Penalty Act. Okay. OK. And the premise of this law is that there need to be certain barriers to people have already been convicted, filing petition after petition And so if there isn't some kind of barrier to doing that, there's nothing to stop you from just constantly filing new motions, asking the federal courts to free you and the federal courts having to waste a lot of time saying, hey, we already looked at this claim and it's no good. So this creates a lot of barriers.

OK, but again, what we are talking about is ineffective assistance of counsel cases here. We are talking about cases where the Constitution says that you have a minimum right to an as you're a lawyer. They're effectively not acting properly as your lawyer. And so the idea that you would say, well, this lawyer who screwed up so badly that, you know, they provided they don't even meet the constitutional minimum to be your lawyer in this case, their mistake should then be imputed to you. You know, that's that's what makes no sense about this case. It is saying that even when the lawyer has done such a poor job that, you know, their performance is constitutionally inadequate, that constitutionally inadequate performance can be used against their client. Who's behind this decision at the Supreme Court?

So this was a six to three decision and it and it fell along party lines. It was authored by Justice Clarence Thomas, who is the most conservative member of the Supreme Court. And it fits a pattern that, you know, Thomas, I believe, as far back as 1993, joined an opinion where he where Justice Scalia said, hey, there's no constitutional right to be let out of prison if you are innocent. The only constitutional right you have is to a trial. And once that trial is completed, if the trial got the wrong answer and it turns out that you're innocent, tough, tough. That was a fringe view for a long time. When Scalia wrote that opinion in 1993, he wrote it.

Thomas joined it. That was it. There were no other justices who agreed with that view. But the court's been moving to the right for a really long time now. And as it turns out, like we may now have six justices who agree with this view that, hey, if you're innocent, doesn't matter. You know, you got your you got your trial. All that we're going to do is make sure that like your trial checks off the procedural boxes, any like post trial proceedings, check off the procedural boxes. And if it turns out that you're innocent, tough. We can still execute you. So if I'm getting this all correct, Jones would have received a new trial if the

Supreme Court didn't just step in and change the interpretation of the law. That's correct. So this case went to a federal appeals court. The federal appeals court said, yes, he gets a new trial. And it just, you know, Martinez and Trevino were very clear. He did not get adequate representation in his trial. He did not get adequate representation at the post-conviction proceeding. He has never had an adequate forum to determine whether or not he received adequate assistance of counsel. And when you look at all the evidence, there's a ton of evidence suggesting that he is innocent. So this guy should have received a new trial.

So essentially this decision might mean an innocent man is put to death by the state of Arizona. That's exactly right. That is what this decision means for Barry Jones and potentially any number of other people. This is going to have, this has already had immediate ripple effects on a ton of people in Barry Jones' position

and also not just people on death row. Liliana, you've been following this case for years. What's Barry Jones saying about this decision at the Supreme Court? I received a message from his lawyer, which I quote in my most recent piece. And Barry Jones essentially said that, you know, he's trying to be strong. He's trying to put a brave face on. But he knows full well because he has seen more than 30 people executed by the state of Arizona in the time that he's been on death row. He knows that they will kill him and he knows that they

won't stop just because there's evidence pointing to his innocence. So, you know, the reality is he's quite scared. Liliana Segura is an investigative reporter at The Intercept. You can find her work at TheIntercept.com. You also heard from Ian Millhiser. He's with Vox.com. It's Today Explained.