[“Innocence is not enough” are words to chill your heart.
Janine Jackson interviewed Liliana Segura about a Supreme Court death
penalty case for the 6/3/22 episode of CounterSpin. This is a lightly
edited transcript. ]
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‘BUT FOR THE FAILURES OF HIS ATTORNEYS, HE WOULD NOT HAVE BEEN
CONVICTED’  
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Janine Jackson
June 10, 2022
FAIR
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_ “Innocence is not enough” are words to chill your heart. Janine
Jackson interviewed Liliana Segura about a Supreme Court death penalty
case for the 6/3/22 episode of CounterSpin. This is a lightly edited
transcript. _

,

 

JANINE JACKSON: “Innocence is not enough” are words to chill your
heart. That’s the language Arizona state prosecutors used
[[link removed]] as
a reason not to revisit the conviction of Barry Lee Jones, after the
Ninth US Circuit Court of Appeals determined that Jones had not
received effective counsel, and that if he had, his jury would likely
not have convicted him of the murder of his girlfriend’s
four-year-old daughter.

And the Supreme Court agreed this week. They voted six to three, in a
case called _Shinn v. Martinez Ramirez_, that incarcerated people,
including death row inmates like Jones, have no right to bring new
evidence in their claims of ineffective lawyering in federal court,
even if that evidence would show they’d committed no crime.

Sonia Sotomayor called the ruling “perverse” and “illogical”;
experts like Christina Swarns, head of Innocence Project, noted that
ineffective assistance of counsel
[[link removed]] is
a leading cause of wrongful conviction. And it was lost on few that
the same judges who insist that the sanctity of life demands that
fetuses mean more than the people carrying them show no evidence of
such interest here.

Pretty much any deep account of this court ruling will cite the work
of our guest. She has been reporting criminal justice and the death
penalty for many years, and was writing about Jones’ case in
particular back in 2017. Liliana Segura is a reporter at
the INTERCEPT
[[link removed]].
She joins us by phone from Nashville. Welcome back
to COUNTERSPIN, Liliana Segura.

LILIANA SEGURA: Thank you so much for having me.

JJ: Can I ask you to talk us through the key points of the case
against Barry Lee Jones, and the issues with that case, such that it
wound up at the Supreme Court?

[Death row inmate Barry Jones]

_Barry Jones_

LS: Absolutely. So Barry Jones was convicted in 1995 of the rape and
murder of his girlfriend’s four-year-old daughter, Rachel Gray.
Rachel was living with her siblings and their mom in Jones’ trailer,
at a place called the Desert Vista Trailer Park in Tucson. This was a
place where there was pretty pervasive poverty and drug use, and a lot
of folks sort of living on the margins.

And what happened was that on the morning of May 2, 1994, Rachel was
found unresponsive in her bed at Jones’ home, and Jones and
Rachel’s mom rushed her to the hospital, where she was declared dead
on arrival. There were some disturbing signs of injury all over her
body.

But crucially, an autopsy, which was not performed until the following
day, found that Rachel had died from an apparent blow to her abdomen
that had torn part of her small intestine. And this led to a fatal
injury called peritonitis.

But also crucially, from the start, the investigating detective with
the Pima County Sheriff’s Department never looked into exactly how
Rachel had sustained this injury. There was no real investigation of
that key medical evidence. Instead, before they even knew how this
little girl died, she turned her sights directly onto Barry Jones.

So if you fast forward, Jones was tried in 1995. There should have
been a lot of evidence that his trial lawyers could have brought to
cast doubt on his guilt in this case. There was really no physical
evidence, or very little physical evidence, linking him to Rachel’s
injuries, and especially important was the fact that the case was
really based on circumstantial evidence, a very narrow timeframe on
the day before this little girl died where she had been spotted with
Jones by people around the trailer park. And so the state presented a
case in which her fatal injury had been inflicted within this very
narrow timeframe, the day before she died.

Now, Jones’ trial attorneys should have investigated this; they
should have talked to somebody who could consider the medical evidence
to see if this held up. But, instead, they never did that. And, in
fact, they really failed to investigate the case at all. And instead,
when it came time for them to present evidence, they put on a single
witness at the guilt phase, and that was Jones’ 12-year-old
daughter, Brandie. That was their only witness.

So Jones’ jury finds him guilty, and a judge sentences him to death.

JJ: And then there’s an appeal, which, again, there’s another
problem. That’s part of the issue here, is there’s a couple of
layers of ineffective lawyering, right, before it makes it up to the
Supreme Court.

LS: That’s exactly right. So, in our system, at least in theory,
after you are convicted, and certainly sentenced to death, you have
the right to bring forward an appeal. And, crucially, you have a right
to bring evidence that your trial attorneys failed you, that they
provided ineffective assistance of counsel.

This is a really important avenue for relief, especially for people on
death row, because it’s that kind of evidence that can lead to a
conviction being overturned, or somebody being exonerated. The problem
is that there’s absolutely no guarantee that your lawyer who handles
that appeal is going to do what they need to do.

And in Barry Jones’ case, this is precisely what happened. He was
represented at state post-conviction by a man who basically replicated
the same mistakes his trial lawyers made. He did not investigate the
medical evidence underpinning the state’s case against Barry Jones.

And what’s so significant about that failure is that, because of the
way that our system is set up, and these incredibly onerous procedural
barriers that exist once a case is at that stage, once a
post-conviction attorney fails to bring forward that evidence of bad
lawyering, you can never bring that evidence into federal court at a
later stage. It’s basically barred.

And so that’s what happened to Barry Jones. Until—and this is what
leads us to the Supreme Court situation—in 2012, the US Supreme
Court handed down a really important ruling in a different Arizona
case, and this ruling was called _Martinez v. Ryan_. And in this
ruling, in a 7–2 decision, the court held that, essentially, if you
had a situation, as with Barry Jones’ case, where your trial lawyers
failed you and then your state post-conviction lawyers also failed
you, that you should actually have a shot to bring forward this claim,
to bring forward, potentially, evidence to prove that you received
ineffective assistance at trial.

This was a really big deal when it came down in 2012. But it was meant
to be a narrow remedy, a sort of safety valve, precisely to avoid
miscarriages of justice, and to ensure that people on death row and
people incarcerated are able to vindicate their Sixth Amendment
rights.

And this ruling was also really noteworthy because Chief Justice
Roberts was in the majority. So was Sam Alito, it bears mentioning. So
7–2, this is 2012. And it’s ultimately that decision that allows
Barry Jones to bring forward all this evidence that should have been
brought forward in 1995 at his trial.

JJ: Thank you very much. This latest, _Shinn vs. Martinez Ramirez_,
seems to be gutting that _Martinez_ ruling that you’re talking
about. It’s this weird thing, and folks can learn more about it, but
as I understand it, writing for the majority, Clarence Thomas is
saying, _You can still bring your case about having ineffective
counsel to federal court, you just can’t introduce any new
evidence_, which presumably would be the stuff, as you’re just
explaining, that your ineffective counsel left out.

So I’ve heard this new ruling described as hollowing
out _Martinez_ without actually explicitly overturning it, but still
taking all the meaning out of it.

[Liliana Segura]

_Liliana Segura: “Jones’ lawyers present[ed] just an incredible
wealth of evidence pointing to his innocence…. It really just
dismantled the entire case.” _

LS: That’s precisely right. And it really bears mentioning, first
of all, that Clarence Thomas was in the minority in _Martinez_. So he
never agreed with this decision to begin with. But, you know, all of
this sounds bad, but it’s sort of theoretical until you consider
what this looks like, for example, in Barry Jones’ case.

What this means is that, as I said, in 2012, Barry Jones gets this new
door to be able to present his evidence. He finally is able to do that
at an evidentiary hearing in federal court in 2017. I attended part of
this hearing; this was the start of my reporting. And it was at that
hearing that Barry Jones’ lawyers present just an incredible wealth
of evidence pointing to his innocence. Technically, what they needed
to show was ineffective assistance of counsel, but it really just
dismantled the entire case against Barry Jones.

And it was stunning to watch the judge presiding over this; at times,
he would question law enforcement who took the stand, saying, “Well,
didn’t you consider this?” or “Why didn’t you consider any
other suspects?” The case really sort of fell apart. And in 2018,
this federal judge overturned Barry Jones’ conviction, and said
that, but for the failures of his defense attorneys, he would not have
been convicted by a jury, and he ordered a new trial. And he said,
essentially: The state of Arizona, you have to release or retry Barry
Jones.

And instead, the state of Arizona appealed and appealed and appealed.
Once the Ninth Circuit, lost there, went back to the Ninth Circuit,
lost there again. But then you get the Supreme Court, and they took
their shot. And they got lucky, because now we have this conservative
supermajority at the Supreme Court that was willing to listen to their
arguments.

JJ: And to say, as Thomas said,
[[link removed]] “intervention,”
in other words, introducing the information that can prove or
illustrate that this person may not have committed this crime, or did
not commit this crime—”intervention is an affront to the state and
its citizens who returned a verdict of guilt after considering the
evidence before them.” In other words, states’ rights? Is that
what we’re talking about here? It’s a process question, and it’s
insulting for the federal court to intervene in this case? That seems
to be the load-bearing idea in Thomas’ opinion.

LS: Exactly. And this goes back to a long argument on the right,
about basically insisting that federal courts really have no business
messing with the outcomes in state proceedings. And this long precedes
Barry Jones’ case, but it’s really disturbing to see it in this
way.

And also, that particular line that you mentioned is especially ironic
to me, because, as part of my reporting, I got in touch with some of
the jurors involved in Barry Jones’ case, who expressed serious
misgivings about this whole situation. And one in particular came to
believe that Barry Jones is absolutely innocent, and she died in the
past couple of years, but in our correspondence, in our interview, she
was just really tormented by her role in helping send Barry Jones to
die.

So this idea that it’s an affront to the citizens to return to this
verdict, it’s just so dishonest.

[Death row inmate David Martinez Ramirez]

_David Martinez Ramirez_

JJ: I want to add something here, because details matter very much,
of course, and I think, at the same time, they can also fill this sort
of human need to find exceptions, to find a reason this would never
happen to you, to find a way that this makes sense even though it
doesn’t really make sense, because system failure, I think, is just
hard for our brains to grasp. And so, in some sense, details can fight
with principle.

And with that in mind, Ramirez—there’s a reason that Ramirez
appears in this case name, and the Ramirez case is different. It’s
not about innocence, but it’s still about inadequate counsel. And
it’s still about federal involvement showing multiple failures that
had happened at the state level. Can you just tell us quickly why the
Ramirez case fits here?

LS: Yeah, and I’m glad you bring this up, because this is a
question of innocence. But in Ramirez’s case, it is a lot more
difficult for a lot of people to express concern about, but it should
be no less disturbing in terms of the implications of this ruling.

Ramirez—and I should say, I have not reported on his case—but the
basics are that he was convicted of murdering his girlfriend and her
teenage daughter in 1989. He did not have an innocence claim, but he
did have, I understand, significant mental impairments, and a long
history of childhood trauma, abuse and neglect. All of these things
are very common among people who end up on death row. And Ramirez’s
lead trial attorney had never handled a death penalty case, did not
investigate any of this evidence. And as with Jones, his
post-conviction lawyer essentially failed to do the same.

And so it makes its way through the courts. But essentially what
happens is that there’s a finding in federal court that he’s
entitled to an evidentiary hearing in light of _Martinez_, in order
to bring forward this evidence, which is the kind of evidence that can
also help a person get off of death row, because, ostensibly, we’re
not supposed to execute people where there should have been a
significant finding of childhood trauma, abuse and neglect that could
have come out at trial, during the course of what’s called
“mitigation.”

Essentially, if there had been evidence that jurors had heard that
might have moved them to vote differently, that should have come out.
Same thing with intellectual disabilities and other kinds of mental
problems.

Again, because these are such common characteristics of death penalty
cases, Ramirez, in many ways, represents a lot of the same stakes that
men and women on death row have, and _Martinez_ should have really
allowed them to get back into court to present these findings. And
instead, as with Jones, the court said, _You know what, none of that
matters. And if the evidentiary hearing already happened, too bad,
none of it counts._

JJ: Ramirez’s lawyer said that she “wasn’t prepared to handle
the representation of someone as mentally disturbed” as he was. And
I think, just as laypeople, we think that should have meaning.

It’s hard not to read something into the careful carelessness of
this ruling. It looks like emphasis on procedure over people, but it
seems really like emphasis on some people over others. Shoring up
state power helps certain kinds of people. And it’s hard to avoid
the idea that there’s a sense that the people who are being harmed
here are just of “the harmable class,” and that there’s some
reason that we shouldn’t care about them.

And I think for many people, thinking about people ends once you say
the words “death row.” There is a sense that they’ve been
through all the process, they’ve been found guilty, they must be
guilty of something. And you’ve been working on that story and those
people for a long time. I just think that there can never be enough
reporting on the realities of the death penalty, and the people that
are involved there, because I think for a lot of folks, it’s a
thought-stopper.

LS: Thank you for saying that. One thing that’s sort of surreal
about this whole situation, in most cases like this, by the time the
case gets to the Supreme Court, a lot of these issues become
abstractions, you know? It’s very rare that we know the story behind
the people who appear in these court case names, and in Barry Jones’
case, I never would have predicted that this would have ended up
making it all the way to the Supreme Court.

But it shows the difference that this kind of storytelling can make,
when you can say, this is a human being, and here are the people in
his life who knew him and who remember this, and who could’ve
brought forward evidence, and continue to speak out about the problems
in this case.

So I’ve been fortunate to be in a position to correct parts of the
record. Unfortunately, in terms of the Supreme Court and the federal
court, that road has really come to an end for Barry Jones for the
moment.

JJ: Let me just ask you, finally, I’ve seen a few things—”go to
Congress.” What do you see as ways forward here, along with
continued reporting, such as you’re doing?

LS: That’s sort of what I’m figuring out now. In terms of
Congress, well, I don’t have a whole lot of hope, but I will say
that this has sparked yet another round of discussion about this
horrible 1990s-era law called the Antiterrorism and Effective Death
Penalty Act, which was essentially weaponized in this case to deny
relief, as it’s been denied to many, many people on death row. This
law is insidious, it’s destructive, it really should be repealed.
That’s something that is an evergreen subject among people who know
this issue.

And more in terms of Barry Jones’ case, my next steps are
essentially to see what remaining avenues there are for him to bring,
possibly, an actual innocence claim in state court. Because otherwise,
we’re talking at a time when Arizona has restarted executions after
eight years, and there’s a very real danger that Barry Jones could,
in the not-too-distant future, end up with an execution date. So I
think publicizing this case, especially at the local level and Pima
County, is going to be very important.

And finally, there’s a Conviction and Sentencing Integrity Unit in
Pima County that, at least in theory, should be looking at this case,
and up until now, they haven’t been. I’m really hoping to see if
that’s a possibility going forward, because they really should be
looking at it.

JJ: Thank you very much. We’ve been speaking with Liliana Segura.
Find her work at THEINTERCEPT.COM
[[link removed]], on this case and
many other issues. Liliana Segura, thank you so much for joining us
this week on COUNTERSPIN.

LS: Thanks so much again.

_Janine Jackson is FAIR’s program director and and producer/host of
FAIR’s syndicated weekly radio show COUNTERSPIN
[[link removed]]. She contributes frequently to
FAIR’s newsletter EXTRA! [[link removed]] and
co-edited The FAIR Reader: An EXTRA! Review of Press and Politics
in the ’90s (WESTVIEW PRESS). She has appeared
on ABC‘s NIGHTLINE and CNN HEADLINE NEWS, among other outlets,
and has testified to the Senate Communications Subcommittee on budget
reauthorization for the Corporation for Public Broadcasting. Her
articles have appeared in various publications, including IN THESE
TIMES and the UAW’s SOLIDARITY, and in books including Civil
Rights Since 1787 (NEW YORK UNIVERSITY PRESS) and Stop the Next War
Now: Effective Responses to Violence and Terrorism (NEW WORLD
LIBRARY). Jackson is a graduate of Sarah Lawrence College and has an
M.A. in sociology from the New School for Social Research._

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