A fed­er­al dis­trict court has vacat­ed the mur­der con­vic­tion of Arizona death-row pris­on­er Barry Jones (pic­tured) in the death of 4‑year-old Rachel Gray, and has ordered the state to imme­di­ate­ly retry or release Jones. On July 31, 2018, U.S. District Judge Timothy Burgess grant­ed a new tri­al to Jones, who has spent 23 years on Arizona’s death row, find­ing that if Jones had been com­pe­tent­ly rep­re­sent­ed at tri­al, 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.” Jones has con­sis­tent­ly main­tained his inno­cence. Jones’s case was taint­ed by what Judge Burgess called a rush to judg­ment” by police inves­ti­ga­tors. His con­vic­tion was based large­ly on ques­tion­able eye­wit­ness tes­ti­mo­ny from two 8‑year-olds, com­bined with unre­li­able foren­sic tes­ti­mo­ny. A med­ical exam­in­er who tes­ti­fied against Jones lat­er gave con­tra­dic­to­ry tes­ti­mo­ny about the tim­ing of the victim’s fatal injury that would have ruled out Jones as a sus­pect. Police failed to inves­ti­gate evi­dence point­ing to oth­er sus­pects, and Jones’s defense team failed to exam­ine alter­na­tive the­o­ries of the crime. Jones was also con­vict­ed of rap­ing Gray, despite the lack of any evi­dence that the alleged rape occurred at the time she sus­tained her fatal abdom­i­nal injury. Judge Burgess found that both Jones’s tri­al lawyer and the lawyer Arizona appoint­ed to rep­re­sent him in his state post-con­vic­tion pro­ceed­ings were inef­fec­tive, and that both failed to con­duct pro­fes­sion­al­ly appro­pri­ate inves­ti­ga­tions into the case. He wrote that tri­al coun­sel failed to per­form an ade­quate pre­tri­al inves­ti­ga­tion, lead­ing to his fail­ure to uncov­er key med­ical evi­dence that Rachel’s injuries were not sus­tained on May 1, 1994” — the day the pros­e­cu­tion said Jones raped and killed her — and unrea­son­ably fail[ed] to impeach the state’s oth­er phys­i­cal and eye­wit­ness tes­ti­mo­ny.” Sylvia Lett, Jones’s for­mer appel­late attor­ney, sum­ma­rized the judge’s find­ings, say­ing, 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.” A decade ago, the fed­er­al courts would have con­sid­ered Jones’s inef­fec­tive assis­tance claim waived because of his pri­or lawyers’ fail­ures to raise it in state court, and Jones like­ly would have been exe­cut­ed. However, in 2012 in Martinez v. Ryan, the U.S. Supreme Court ruled that fed­er­al habeas cor­pus courts may review a state prisoner’s claim that his tri­al lawyer was inef­fec­tive if the fail­ure to raise the claim in state court result­ed from addi­tion­al inef­fec­tive rep­re­sen­ta­tion by his state post-con­vic­tion lawyer. The fed­er­al courts had orig­i­nal­ly refused to hear Jones’s claim, but after Martinez was decid­ed, the U.S. Court of Appeals for the Ninth Circuit sent the case back to the dis­trict court for further consideration.

The case is the lat­est in a grow­ing num­ber of cas­es in which pros­e­cu­tors have pre­sent­ed false or mis­lead­ing foren­sic tes­ti­mo­ny that have sent defen­dants to death row for the alleged mur­der of a child. In April 2018, Vicente Benavides was exon­er­at­ed after spend­ing near­ly 26 years on California’s death row for sup­pos­ed­ly rap­ing, sodom­iz­ing, and mur­der­ing his girlfriend’s 21-month-old daugh­ter. In fact, the tod­dler had not been raped and may have died from inter­nal injuries sus­tained from being hit by a car. The California Supreme Court called Benevides’s wrong­ful con­vic­tion a prod­uct of exten­sive,” per­va­sive,” impact­ful,” and false” foren­sic tes­ti­mo­ny. At least ten men and women have been exon­er­at­ed from death rows across the United States after hav­ing been wrong­ly con­vict­ed for killing a child.

(Liliana Segura, AFTER 23 YEARS ON DEATH ROW, BARRY JONES SEES HIS CONVICTION OVERTURNED: ARIZONA MUST RETRY OR RELEASE HIM IMMEDIATELY, The Intercept, August 1, 2018.) Read the dis­trict court order and opin­ion in Jones v. Ryan. See Innocence.

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