More than six months have passed since the US Supreme Court reinstated the conviction and death penalty of Barry Jones despite evidence proving his innocence. During that time, Arizona has executed two more of Jones’ neighbors — three in total in 2022. It’s been “a very difficult time,” Jones’ longtime attorney Cary Sandman told a federal judge in September. At 64, having spent nearly half his life behind bars for a crime he claims he did not commit, Jones is struggling to find reasons for hope.
Now there could be light at the end of the tunnel. A settlement conference will be held on December 6 at the federal courthouse in downtown Tucson. Jones is transported off death row to attend. Unlike previous hearings in his case, the trial will be held in camera and will involve a series of negotiations between Jones’ legal team and prosecutors. The Pima County Attorney’s Office, who first prosecuted Jones in 1995, will also be in attendance.
Such meetings are common in civil disputes, which are often resolved through mediation. But they are uncommon in death penalty cases. The decision to begin negotiations came at a hearing earlier this year where US District Judge Timothy Burgess encouraged both parties to find a way to end the protracted legal battle. “I think it would be in everyone’s best interest, including the interest of society, if we could solve this case,” Burgess said.
Burgess has led Jones’ case since 2016. After recently retiring as chief U.S. District Judge for Alaska, he was appointed to the case because of a conflict of interest: one of Jones’ attorneys at court had since become a federal judge and headed the state Arizona District Judge to Retire. The arbitration conference will be chaired by another Alaskan judge who will act as a mediator.
Jones was sent to death row in 1995 for killing and sexually assaulting his girlfriend’s four-year-old daughter, Rachel Gray. Evidence against him was thin based on a narrow time frame in which Jones was seen taking trips with Rachel in his work van the day before her death. At an evidence hearing in 2017, Jones’ attorneys revealed the rush of Pima County investigators to reach a verdict and presented compelling exculpatory evidence his trial attorneys failed to uncover. Most notably, they called experts who said Rachel’s fatal injuries could not have been inflicted so close to her death. In 2018, Burgess overturned Jones’ conviction. If not for the failings of his trial attorneys, Burgess wrote, “there was a reasonable likelihood that his jury would not have convicted him any of crimes” that sent him to death row.
Burgess ordered Arizona to try again or release Jones. Instead, the Attorney General appealed the decision all the way to the US Supreme Court, arguing that under federal Counter-Terrorism and the 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 that overturned the court’s own precedent, the judges agreed.
The decision was devastating for Jones, his family and his legal team. It also dealt a severe blow to scores of inmates who had been ill-advised in court and in post-conviction state processes. In an article for the Journal of the New York Bar, Sandman wrote that the decision “set a new precedent that will evade federal review for many wrongful convictions and unconstitutional death sentences.” He called on Congress to reverse the verdict – and vowed to keep fighting for Jones.
Among those who have expressed dismay at the Supreme Court 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 Conviction podcast released last month, Becky, now in her late 30s, told producers that she had begun to question Jones’ guilt after hearing The Intercept’s coverage of the case had read. “I’ve hated this guy for so long, and he very well could have been innocent,” Becky said. “And now, thanks to the Supreme Court, there’s not even anything that can be done.”
Becky’s memories of Jones matched what many others have shared with The Intercept and Jones’ legal team over the years. She described her mother, Angela Gray, as physically abusive — Gray was sentenced to eight years in prison for child molestation after Rachel’s death — and recalled Jones as a patient with Rachel. “If she wanted to talk about anything, he’d stop what he was doing and he’d sit and talk to her,” Becky said. Her little sister enjoyed watching Jones work in his van, she said. “I’m pretty sure she probably knew how to restore the transmission.”
A few days before Thanksgiving, attorneys for 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 Settlements Conference,” the letter reads. It noted Burgess’s conservative credentials; Burgess, a former US attorney who was appointed to the Federal Bank by George W. Bush, reviewed dozens of petitions from inmates challenging their convictions and sentences during his tenure and granted relief in only one case: Jones’s.
More importantly, the letter highlighted the evidence that convinced Burgess to vacate Jones’ conviction in 2018. The evidence … triggers prosecutors’ ethical duties to correct false convictions and seek exoneration when there is a miscarriage of justice The letter goes on to say that this obligation is particularly important when a person’s legal options have been effectively exhausted. Prosecutors “are bound by their professional ethics, and hopefully most would feel compelled by their own conscience to take positive action to right the blemish of an unjust conviction.”
So far, the Pima County Attorney’s Office has refused to intervene, insisting there is little they can do as long as Jones’ case remains in the hands of the Arizona Attorney General. On Thursday, Brad Roach, the new head of the Pima County Conviction and Verdict Integrity Division, claimed that the attorney general retained jurisdiction in the case. However, he acknowledged that “serious questions have been raised” and said his office is committed to a fair outcome. The Pima County Attorney is “happy to be doing whatever necessary to ensure justice is done in this case.”
Meanwhile, Jones is spending another holiday season on death row. On Thanksgiving, the prison served him turkey and a piece of cake. During a visit two days later, his daughter Brandie broke the news that Jones’ 35-year-old nephew had recently died. He made a strong face, she said. “But I could see that deep down it hurt him more than he was admitting.” While Jones doesn’t appear optimistic about the settlement conference, this could be his best shot at reuniting his family in the coming year. “I’m trying to keep his hopes up.”