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High Court Test for Late Evidence of Innocence

Although the current question before the Supreme Court in an Arizona death-penalty case is highly technical, the decision could have far-reaching implications for people in prison and on death row, The Intercept reports. For those who are innocent, the stakes are uniquely high: The justices are effectively deciding whether new evidence should be ignored by the federal courts, even when it exposes a wrongful conviction. In the case of Barry Jones, the state of Arizona is urging the high court to send Jones back to death row despite new evidence introduced decades after the original 1995 trial. Arizona prosecutors argue that lower federal courts siding with Jones violated the Antiterrorism and Effective Death Penalty Act, which limits the avenues for challenging a criminal conviction.


Jones was accused of the rape and murder of his girlfriend’s 4-year-old daughter. He remained adamant that he was innocent throughout the trial, but due to poor representation, was given the death sentence by an Arizona jury. In Arizona, if a post-conviction attorney failed to challenge a trial lawyer’s performance, their client would be forever barred from bringing the claim forward in federal court, a concept known as procedural default. It was not until the evidentiary hearing 22 years after the trial that Jones’ federal public defenders presented ample evidence to defend Jones, not to a jury but to U.S. District Judge Timothy Burgess. After seven days of testimony at Tucson’s federal courthouse, Burgess concluded that Jones’ trial had been marred by ineffective assistance of counsel — a violation of his Sixth Amendment rights. But for the failures of Jones’ trial attorneys, Burgess wrote, “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.”

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