A federal court saved a man from death row. Arizona is pushing to execute him

Joseph Darius Jaafari
Arizona Republic
Barry Jones

When a jury handed Barry Jones a death sentence in 1995, his case was automatically appealed to Arizona’s highest court, per stated law, and lost. Outside of the courtroom, Jones said his lawyer during the trial didn’t interview key witnesses who would exonerate him.

During his second appeal in the post-conviction review process, Jones’ lawyer again didn’t interview the witnesses or experts, and he lost for a third time.  

Since then, two federal courts, including the 9th Circuit, decided that because Jones’ state-appointed attorneys failed to do their jobs, he either deserved a new trial or the state had to let him go.

But this November, Arizona Attorney General Mark Brnovich will attempt to persuade the U.S. Supreme Court that it should allow the state to execute Jones, because the lower judges’ rulings violated a decades-old anti-terrorism law prohibiting state defendants to introduce new evidence during a federal trial, even if that evidence exonerates the accused. 

The attorney general would not comment on the case for this story, citing pending litigation. But public defenders and civil rights lawyers are concerned that if the Supreme Court sides with the state, the decision could have widespread effects on people convicted beyond death row and are misrepresented by inadequate lawyers during their state appeals process. 

DEATH ROW:AZ officials ask to expedite 2 executions, citing shelf life of drug

“It’s very illogical,” said Sylvia Lett, an associate clinical professor of law at the University of Arizona, who also served as a public defender working on capital cases for over a decade. “For those of us who believe in fairness, why not just get it right? It's not giving relief, it’s giving them a fair shot at bringing claims of unfairness up.”

Jones was convicted of sexual assault, child abuse, and felony murder of his girlfriend's 4-year-old daughter. The couple had taken the girl to a hospital, where she was pronounced dead because of a bowel laceration from being hit in the abdomen.  The state’s case relied on a limited timeline when an eyewitness saw Jones hit the girl. But there were other medical experts who were never interviewed who contested the facts and argued that other people — including the girl’s mother — could also have struck the girl.

At the same time, the state is challenging the federal court’s decision to allow new evidence that could overturn a decision related to David Ramirez, who was convicted in 1990 of raping and murdering a teenager. According to court records, Ramirez’s lawyer did not provide evidence that Ramirez was severely mentally disabled, which would have forbid him from the death penalty, per federal law.

David Ramirez

The trial attorney appointed by the state in Ramirez’s case also openly admitted to being unprepared for the case, according to the court record. In Ramirez’s appeal to the federal district court, the judges allowed new evidence that proved his lawyers did not properly do their job.  

Before 2012, defendants didn’t have much chance of getting their cases heard in federal court, unless the state court misinterpreted the law or evidence presented in court. But that year, an Arizona man, Luis Martinez, won a Supreme Court case that decided district and circuit courts could review cases if prisoners were able to prove they had an incompetent lawyer.  

Justice Anthony Kennedy wrote the majority’s decision, saying that the state’s limitations on “a prisoner’s inability to present an ineffective-assistance claim is of particular concern because the right to effective trial counsel is a bedrock principle in this nation’s justice system.”

Supreme Court Justice Anthony Kennedy

Two court justices — Antonin Scalia and Clarence Thomas — dissented. 

But past decisions by the Supreme Court also point to rulings in favor of states' rights, limiting the role of federal courts, such as refusing to review Pennsylvania’s new voting laws in the 2020 general election, saying the state had authority.  

Public defenders are bracing for a similar decision, which they say could have far-reaching consequences, and could affect anyone bringing up prisoners’ claims in federal court that they had a shoddy lawyer in more than just death penalty cases.

“If the Supreme Court adopts Arizona’s position, many defendants, who never had a fair trial, would be denied a critical chance to challenge their convictions,” said Robert Loeb, the attorney representing Jones in the case. “The federal courts are not just rubber stamps; the federal courts do not simply pass over constitutional errors when a defendant never had a full and fair trial, as is the case here.”

EXECUTIONS:Arizona botched purchase of gas chamber chemical, lawyer says 

The Supreme Court’s decision will hinge on how it reads the Anti-Terrorism and Effective Death Penalty Act, signed into law by then-President Bill Clinton in 1996 as part of his wave of anti-crime bills that ended up targeting people of color, particularly those in Black and Latino communities in urban areas. The law says that the federal courts should only get involved if the state judge made an error based on the facts presented, and all evidentiary hearings need to be made in state courts.

That legislation essentially closed the door for anyone arguing that they had ineffective counsel during their appeals, especially in Arizona where the only time you can bring up ineffective counsel is during your first state appeal. Only two counties — Maricopa and Pima — have offices dedicated to providing a lawyer. But those lawyers have had mixed results.  

In Jones’ case, his appointed lawyer didn’t even meet the state’s qualifications to represent capital cases. 

“The federal courts found that his state-appointed counsel failed to investigate his defenses and examine the government’s evidence,” Loeb said. “Had counsel properly performed their duties, they easily would have found evidence showing Barry’s innocence.”

Other attorneys general in 13 other states including Arkansas, Texas and Ohio support the state’s petition, and argued in an amicus brief that the federal court took away Arizona’s ability to vet any of the new evidence brought up in court, which it has a right to do, per the 1996 federal law.  

And with the new conservative makeup of the court, Arizona’s attorney general feels confident that the judges will rule in his favor. Brnovich is also running for U.S. Senate, and death row opponents along with public defenders allege he’s using the case as a campaigning opportunity to appear tough on crime.  

Through his spokesperson, Katie Connor, Brnovich said he wouldn’t confront the allegations, nor would he comment on the case nor its possible outcomes. 

But while public defenders and legal experts agree that the most robust work should be done at the state level with the federal courts only acting as a check, they also say that the state only allows prisoners one opportunity to bring up ineffective counsel during appeal. And in instances, like Jones' and Ramirez’s cases, where that state-appointed counsel did not do their jobs, the federal court has an obligation to step in.

“With ownership comes responsibility,” said John Mills, an attorney at Phillips Black in Oakland, California, which focuses primarily on capital cases. Mills said the federal government works “on the assumption that state courts are operating properly. And when they are not operating properly, federal courts intervene.”