On broken brains, a broken system, and burning it all to the ground

Part two of a wide-ranging interview with longtime defense investigator Andrew Sowards

This is the second part of my interview with longtime criminal defense investigator Andrew Sowards. You can read the first part here.

But first, here are a few explanatory items that might help contextualize this part of the interview for newer readers:

— Mitigation is the process by which a defense team tries to humanize a client and contextualize their crimes in hope of winning a more lenient sentence. Mitigation was rarely used until about the 1990s, when the Supreme Court and the American Bar Association declared that it’s a critical component of a constitutionally-protected death penalty defense. Since then, mitigation specialists have become more common, and mitigation has improved, though it’s still not widely used outside of capital cases.

— Sowards worked on the Barry Jones case. Jones is a Death Row prisoner in Arizona. Earlier this year, the U.S. Supreme Court ruled that even though Jones had ineffective lawyers at both the trial and post-conviction stages of his case, he was barred from federal court under Arizona law and the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Sowards, along with Jones’ lawyers, had uncovered persuasive evidence of Jones’ innocence. But the Supreme Court ruled that AEDPA barred the federal courts from even considering this evidence on its merits because Jones was procedurally barred from federal court. In doing so, the court gutted its own precedent from just 10 years prior. For more on Jones’s case, I recommend Liliana Segura’s extensive coverage for The Intercept (disclosure: Segura is my wife).

— Holistic criminal defense is an approach to defending clients that attempts to address all the ways the criminal justice system can inflict harm on the accused. So in addition to litigating a case in court or negotiating a charge with prosecutors, a holistic defense team might also attempt to prevent an accused client from getting evicted, losing custody of their children, or losing a job. They might arrange for mental health treatment, substance abuse treatment, or medical care. The general idea is that the criminal justice system punishes people in ways both intended and unintended, and the best way to help clients and prevent recidivism is to fight to minimize all the harm done to a client, not just the punishment meted out in court.

— Post-conviction is the phase in a case after a prisoner has been convicted and exhausted his appeals. At this phase, it’s often easier for prisoners to access police and prosecutor files, and in death penalty cases, they’re likely to have well-funded, experienced lawyers working for them. Unfortunately, it’s also the phase when it’s most difficult to get back into court. For the last part of his career, Sowards worked on post-conviction cases for the Federal Public Defender’s office in Arizona.

All of that out of the way, here’s part two of our interview.

You mentioned that there are other cases that still bother you. Can you share another one or two of those?

I think they tend to be cases from early in my career — cases where I did something dumb because I wasn’t well trained, didn’t know what I was doing, and might have cost my client.

Here’s a case like that — this one really does bug me. My client was a normal middle class dude. Had a house, a wife, a couple kids, the same job at a construction company for a dozen years or so.

One night at a New Year's Eve party, he had too much to drink. His daughter had some friends over. They were 18, 19 years old. He pulls out his revolver to show the kids. Everyone sees him unload the thing and then he passes it around. No one is really sure how some bullets end up back in the gun, but they do. The kid next to him has the gun and cocks the hammer. Now this kid has a gun with the hammer cocked and he doesn’t know what to do. So he hands the gun back to my client. My client goes to grab it, it goes off, and the bullet hits the kid sitting across the table and kills him.

So my guy absolutely has some liability here, you know? But by the time we go to trial, they’re of course overcharging him. I don’t remember exactly, cut I want to say he was arrested on something like negligent homicide, but then the county attorney raised it to something like second degree murder based on recklessness.

So we're in trial. This is my maybe first or second murder trial. I'm probably a year into the job. The lawyer working the case is kind of a low energy guy — smart guy, but not real aggressive.

So let me back up a bit. The autopsy report was pretty clear that the bullet had entered this kid's forehead at a slight angle — I can’t recall if it was because of the path of the bullet or the angle of the cuff the bullet burns into the skin as it goes in. But based on the autopsy report, we expected that the medical examiner was going to testify that this bullet came in at an angle. Well, the surviving kid had drawn a diagram showing where he was seated, where my client was seated, and where the victim was seated. Based on what I expected the testimony to be from the medical examiner, we were going to be able to draw a straight line back to the other kid, not to my client.

I wasn’t sure that the attorney understood this right away, so during a break I was trying to explain it to him. To make myself clear, I was pointing at the diagram. I was trying to explain to him what the autopsy report was gonna say. And I'm being very demonstrative. I point to my head to kind of demonstrate to this lawyer, because he’s just not getting it. I’m like, hey, we can draw this line.

Now, does this get my guy off? No. Again, my guy still has liability for bringing the gun out while everybody is drunk. He shouldn't have done that. But then it’s clearly negligence, not second degree murder.

Anyway, as I’m demonstrating this, the jury isn’t there and the judge isn't there, but prosecutor is there. I look over and the prosecutor is staring at me. She saw what I was trying to convey. I’m thinking Christ, I’m an idiot. I didn't even think about trying to hide what I was saying, what I was trying to demonstrate. I was just an idiot.

So when the trial resumes, the next witness is the medical examiner. She puts him up on the stand. Normally, any time a medical examiner takes the stand the first several pages of the transcript are going to be all about his qualifications — he’s done 5,000, autopsies, he went to this medical school, he did this this residency. It’s going to be his background.

This time, she gets him to introduce himself, and then it’s immediately, “Hey, do you have any changes to make to your report?”

It was the first or second question. It’s way too early in his testimony to be asking if he has any changes to make his report. And he says, yeah, you know, while I was out in the hallway there, I noticed that my report said that this bullet came in at an angle. But really — really, it came in more straight.

I was just, “Shit.” I know exactly what that prosecutor did. And that medical examiner knows exactly what he is doing. So I'm frantically nudging the lawyer. Like, do you see what's happening? Can’t you see this? He finally makes an objection, but the judge’s response basically is what it always is: you can get it out on cross-examination. The lawyer addressed it, but not very well. This was a big thing for our client.

I mean, this is why I didn't go to law school and could never have been a lawyer.
I would've been jumping up and down. I'd still be screaming about it. Because we all know what happened. The fucking prosecutor didn't need to do it. She was gonna win the case anyway. She was always going to get the negligent homicide charge. But she wanted more. So she got this medical examiner to lie. I've been kicking myself for 22 years over that.

But it wasn’t really your fault — you had no training.

Yeah, I got thrown into the work with no training at all. I just knew nothing. I’ve tried to spend a good chunk of my career making sure other people don’t get started like I did.

You know what we need? I’d really like to see defense investigation become its own job, its own profession. It should be the sort of thing you train for and study for, not just a job people end up with because they’ve retired from law enforcement or whatever.

After I retired from the FBD [Federal Public Defender’s office], I tried to go back to work last year. I went to the county public defender's office and took an investigator job there. It turned out that because of my disability, I physically just couldn't do it. I had to leave after three months. But the investigators there were all ex-cops. I was the only one who hadn’t been a cop. Some of those guys just had no emotional attachment to these clients at all. It’s just a job for them, you know? They don't give shit. Hell, I had investigated half of them. I mean, it was just annoying.

There needs to be some fundamental training for people who are interested in the work, who want to do it for the right reasons. This shouldn’t be a job you do because you’re bored with retirement. Your job is to keep the government accountable, to make sure everybody gets a fair trial. Cops don’t have that grudge in them, that fight.

I guess I still have some residual anger about the early part of my career. What’s wrong with the system that a guy like me got no real training — that I had to learn on the job when people’s lives and freedom were at stake? I should have never been working those cases. I should have had three to five years of experience doing burglary cases and DUIs and all sorts of other stuff before I ever touched a murder case.

But the system is so fucked up that they let me, an idiot, be lead investigator on a fucking murder case. I guess in the end that client got the mitigated sentence, but his whole life still fell apart. His wife divorced him, the house went away, the job went away. I still get angry about those cases. I get angry at myself. Angry at the whole system.

Oh and that prosecutor? She’s now a judge.

There’s at least a lot of attention and public sympathy for innocence cases now, but there’s less interest in cases like your client’s — where there’s some culpability, but the defendant gets overcharged and over-sentenced.

Those — those bug me almost equally. And there are a lot more of those cases. A lot more. The system is supposed to be designed to figure out what happened. And it’s supposed to do that with facts. But in reality, no one is interested in facts. Not the prosecution. Not the defense. A good prosecutor — by which I mean an effective one — has this incredible ability to tell a lot of truths that add up to a lie. They'll cherry pick through certain things and they'll misrepresent other things. But they won’t outright lie. What frustrated me the most when I went through a lot some of these capital cases wasn't so much that there were tons of clear innocence cases. It’s that so many facts went completely unchallenged because the defense lawyer hadn't bothered to hire an investigator. So the prosecutor could just pile up all these facts that were true in isolation, but collectively added up to a lie.

So like you say, it's not innocence necessarily — or at least they weren’t necessarily innocent of everything. It’s that the facts were so distorted at trial to make them seem seem way worse than they are — and make the crime seem way worse than it was. And the defense never bothered to challenge them.

Why do you think that is — why didn’t the defense challenge those facts in those cases?

I don’t know. Laziness for some. Some were overworked — they just had too many cases. But here’s a typical example that just drove me nuts: When I was a PI, I worked with a lot of lawyers who wouldn't even go look at the crime scene. That absolutely drove me nuts. It got to the point where I dragged every fucking lawyer to the crime scene, even for cases that were 20, 25 years old. You’ve got to see those things, man. You've got to be there. You’ve got to get the context. You need to know the layout of the scene. You have to be there in person to even start to figure out any sort of reconstruction, any attempt to figure out how things really happened. It was much better with the FPD lawyers. But too many defense lawyers just don’t understand how important that is. I’d want to stay and walk the scene, do recreations. A lot of lawyers just don’t do that.

Here’s a good one for you: I've seen cases where there were two victims and the medical examiner mistakenly swapped the facts from one victim for the other. Then the prosecution will use those facts to argue some guy should get the death penalty because the facts about that particular victim are aggravating. But they aren’t aggravating, because they put the wrong facts with the wrong victim.

So for example, there was a guy who had shot his wife and kid, but he argued that shooting the child was unintentional. The prosecution argued that shooting the kid was an aggravating factor because there was a contact entry wound on the child’s head, which means the pistol made contact with the kid’s skin when it was fired. So it obviously couldn’t have been unintentional. Except the entry wound was on the wife, not the kid.

This guy committed two homicides. He’s never getting out of prison. But there’s a difference between killing your wife in a fit of anger and putting a gun against this kid’s head and executing her. The latter is going to land you on death row. So yeah. It matters. It matters a lot.

But for much of the first part of my career, you couldn't even get some of these lawyers to do even the most basic investigation. So cases like that go to trial, the clients gets a death sentence, and then when someone like me points out the mistake later, an appeals court dismisses it as a “harmless error” — which have to be the two most infuriating words in the criminal justice system.

One thing I've often seen while reporting on unscrupulous medical examiners — they'll give a really vague autopsy report, with few details. Then, on the witness stand, they’ll reveal facts and details that are damning, stuff that wasn’t in the autopsy report. So the defense attorney is taken off guard and hasn’t prepared a plan to deal with this new information.

Right, right. My favorite is the question, “Are your findings consistent with this? Is it consistent with this?”

This is what I mean when I say prosecutors can tell a whole lot of truths in order to tell a lie. Well, yeah, sure, it's consistent with that one incriminating hypothetical. But it's also consistent with 500 other things that aren’t incriminating. Can we talk about those? Right?

Of course, the prosecutor doesn’t want to talk about those. And too often the defense lawyer doesn't know about those because they never bothered to hire an expert, or talk to somebody, open a book, do a Google search — or do anything else to inform themselves going in. So the jury only hears about this one damning thing that the autopsy is consistent with, and not all of the other non-damning things that could explain the same finding.

You really see that in Barry’s case. In Barry's case his co-defendant Angela [the victim’s mother, and Barry’s ex-girlfriend] was facing the exact same charges. But her lawyer hired an investigator. I wasn't a big fan of the guy, but he was diligent. He did the work. So Angela’s lawyer had a much deeper understanding of the medical evidence. I don't think the lawyer understood everything about the medical evidence, but he at least knew enough to effectively cross examine medical examiner and make the arguments to the jury that saved his client's life. So Angela got convicted on a lesser charge. She eventually got out. Barry’s still on Death Row.

That’s what you’re supposed to do. That’s the least you can do.

You’ve talked about a lot of the injustices you’ve seen — the terrible way the system treats people. How did you cope with this job that consistently produces these unjust outcomes that are just devastating to your clients?

Not very well. It’s something that I didn’t really address properly until I got to the FPD. I think it’s only recently that we’ve become so much more aware of secondary trauma. At a well-run office like the FPD, you meet a lot of mitigation specialists and social workers who are keyed into this stuff, and you start to learn that secondary trauma exists — it’s a real thing, and it’s a thing you need to take care of. Not just to for your health, but to remain effective at your job.

A lot of the time, you’re dealing with all this stuff and you don't even realize it's affecting you. I sure didn’t, at least initially. I was bringing a lot of stuff home. I ended up getting divorced. I just don't think I dealt with it well. I think the way a lot of us dealt with it was just to drink.

“A good prosecutor has this incredible ability to tell a lot of truths that add up to a lie.

I remember one year we had a conference right after we had gotten a stay of execution for a client. He was ultimately killed the following year anyway, but at the time we were in a celebratory mood, so we had a little bit of fun at the conference. Got a little drunk.

The next year I was on the planning committee for the same conference, and one of the other investigators says, “Hey, I got an idea for this conference. Why don't we do something on, you know, how to not drink all your problems away?”

Great idea, right? It was good to work with folks who were able to identify that kind of stuff and point it out when when it was happening. Once you become aware that it exists and that you're susceptible to it, at that point it becomes a lot easier to deal with.

I also just eventually had to accept that system isn’t going to produce the right outcome much of the time, and there’s nothing I can do about it. All I could do was do the best job I could for my clients. That was all I could do. That was my role. What I could do was kick over every rock, see what was underneath, move to the next rock. Just do the best job that I could do, and hope I was contributing some positivity this person's life. With a lot of the work that we do for clients, especially when they're under [a death] warrant, we have to be realistic. Sometimes we were hopeful. But we were realistic about what the outcome was going to be most of the time. And so a lot of those last few weeks before an execution were just about trying to get the client in the right place — and trying to get us in the right place.

Some people sought counseling. That’s probably something I should have done too, but I never really did. Instead, I’d just focus even more on the work.

Defense attorneys dread the “cocktail party question” — some version of, “How can you represent such terrible people?” I won’t ask you that, because I don’t think representing people is something that needs to be justified.

But the flip side of handling the trauma of representing clients who are wrongly accused or treated unfairly is the trauma that comes with representing people who you know have done terrible things. You still have to delve into those crimes to do your job. You still have to see and investigate some pretty awful stuff. How did you cope with that part of the job?

That part is easier. Here’s the thing, Radley: I can't tell you how many of these guys would tell us that until we came along, they just felt like nobody ever gave a damn about them. I’m talking about going back to childhood. And, that's just . . . it’s just so sad. Even for guys who've done just horrible, horrible, horrific things.

When you do mitigation, you look far back into these people’s lives. And it got to the point where I could read these mitigation reports and I could pinpoint the exact moment in some guy’s childhood when he was broken. You could isolate the precise event that changed him, that just froze him emotionally in that moment, that halted the maturation process.

Before that event, this was some kid with all the innocence and potential of every other kid. And I swear I could often look into a client’s face and see that little kid, still frozen in there, just frozen in time.

When you know that history, you can’t help but start to see these guys as the kids they were before they were broken. So when people say, “Hey, how can you work for all these mean dudes?” I just think about that little kid I read about in my investigation, the one who never had anybody give a shit about him. If anybody ever did pay attention to him, it was usually to beat him or sexually abuse him. The rest of the time he was just neglected and cast aside. For so many of my clients, there were so many opportunities for someone to step in and help. The difference between one of those guys and you or me is that for us, somebody did. We had somebody who stepped up.

For a long time I've been trying to figure out why people commit crimes. I’ve wanted to write a book about this. I now have a master's in criminal justice. I've read the criminology stuff. I know what the conventional wisdom is. We can identify all sorts of factors. There's mental illness, there's drug use, there's alcoholism, there's poverty, there's organic brain damage, there's closed head trauma. There are countless things we've identified that might be wrong with people who have committed crimes. But when I interact with my clients, I’d often ask myself — why didn't I commit these kinds of crimes? Why didn't I end up on the other side of that fence? And the answer ultimately came to me.

It's not what I had in common with these guys. It's what I had that they didn't. What I had was somebody like my grandfather, who saw me going down the wrong path, who was a positive influence, who acted. He cared. He gave a shit at a point in my life when nobody else did. And frankly, I really didn't deserve a lot of people giving a shit about me back then. I was dumb, selfish shit. But my grandfather didn't care about any of that. You know, he cared about me. And I knew that. Looking back on it, it's what ultimately got me back — got me back on track.

None of my capital clients ever had that person. None of them. Anybody that gave them any attention at all, it was just to hurt them. Go back through my mitigation files, for any of my clients, and you won’t find that person for any of them. That person just doesn’t exist.

So yeah. When my clients see that somebody is finally fighting for them, it helps them. It makes them feel like human beings. Which always made me feel like — you know what? — if I can’t do anything else for this guy, I can do that. I can care. I can fight. If I was doing my job the best I could do, if I was busting my ass, well maybe I could give this client — this human being — at least something. If nothing else, I could show him that someone was fighting for him. Someone thought this life that everyone else cast aside, that it was worth fighting for. Even if it was too late to save them. Even it was for the first time. They’d at least die knowing someone gave a damn.

And to be clear, I think this was really good for me too. I think this is how I coped. Once I got good at my job, that was the one thing I could give these guys. I was never going to drink these problems away. I was never going to therapy my way out of all of that. I've been talking about this stuff for the last 25 years. I'm still off about it. The best thing I could do, for both me or my clients, was to just work harder for them.

There’s an interesting trend in the criminal defense community when it comes to client service. The predominant view had long been that it isn’t really a defense attorney’s job to address a client’s well-being, mental health, comfort, and so on — you just work on the charges, within the parameters of the case itself.

The momentum these days seems to be toward a more holistic defense — helping clients get housing, jobs, treatment, and so on. You fight for all aspects of a client’s well being. What do you make of all of that?

You can definitely see the difference in representation between lawyers who get it and the lawyers who don't. But it isn’t just about making a client comfortable or happy. I think that when you actually care about your client’s well-being, you’re a better attorney. You’re better able to defend people. The people who see these folks as human beings look to the client’s own history and try to contextualize what happened. And that can be an important thing to convey to a jury.

Look at Barry’s case. He had a little girl supposedly in his care who was hurt, and the worst thing he probably did is that he failed to take her to a hospital. So I can see how someone might say, “Of course I would've taken that kid to the hospital,” and so maybe you’re willing to convict even if you don’t think the evidence is overwhelming that Barry actually killed her, because you can’t understand why he wouldn’t have taken a kid to the hospital when something was clearly wrong.

But try to contextualize what happened. Look at Barry's environment. Look at Angela's environment. It didn’t seem like a life-threatening injury. So what Barry did is what most people in his position in that neighborhood would do. He got her looked at [Jones says the girl was examined by a paramedic at a convenience store], but he didn’t take her to a hospital. They didn’t have health insurance, so they're worried about bills. They’re poor, so they're worried about the government coming in and seeing the squalor and taking the kids. So they push off going to the doctor one more day. That’s just their normal. It was everyone’s normal in that community.

In order to represent someone like that, you have to do the research to know the context of their world, to know how they ended up that way. You have to make the jury understand your client’s world. That takes some empathy.

And again, at least in my experience, the better trial lawyers, defense, criminal defense lawyers have been the ones who've lived a little, people who had other jobs before law school, or lived hard lives before law school. Those folks get it. They pick better juries. They ask better questions of witnesses. They understand people better. They try to understand people better.

The lawyers who work to improve a client’s overall well-being tend to provide a better overall defense because these are the things you learn when you look into those other parts of a client’s life — where they’re living, what jobs they’ve had, how they get around, if they’ve struggled with money. I've seen some absolute geniuses come out of Ivy League schools into this work and I . . . again, I wouldn't trust them to handle a parking ticket for me. They want to win on the law. They don’t understand the humanity involved in these cases, the stuff beyond the law. They don’t take the time to know and understand their clients. They don’t try to empathize. So they just, they just don’t get it. And that lack of empathy shows up in other ways during a trial, like picking and understanding juries.

As I gained more confidence when I was doing trial work, I started to interject myself in these cases. I tried to get lawyers to see these things. See, lawyers have a tendency to argue the law as if everybody else has been to law school. They don't understand that most people don't look at the law that way. The people who get into this work right out of law school, or who only occasionally do defense work, they think juries make their decisions based on some law school-type understanding of the law. What they don’t get is that juries mostly make their decisions on gut emotions. They react to the stories that get told.

That’s what trials are really all about — stories. The best prosecutors, the best defense lawyers, they're storytellers. We think they’re about the law. They aren’t. Each side is presenting a competing story to a jury. The higher up you go — the prosecutors who handle homicide and capital cases — they're constantly tugging on emotional strings, as much as they can absolutely get away with. They're pushing a story. And again going back to Barry’s case, that's exactly what happened. Barry's alleged victim is this poor little kid, this very slight four year old, and her picture was up in front of that jury as often as the prosecutor could keep it up there.

It didn't matter what the actual facts were. It just didn't matter. It didn’t matter that the state’s timeline didn't line up. Or that the medical evidence was different — and by different I mean diametrically opposed — between Angela's trial or Barry’s trial. It was just two competing stories. Angela’s lawyer told a compelling story to contradict the prosecution’s story. Barry’s lawyer didn’t. And that’s why Barry is on death row.

But I’m getting off topic. What were we talking about again?

Holistic defense.

Oh yeah. Holistics. Yeah, I think that's the way you have to do it. And it has to be a team approach. After I retired from FPD, I tried to go back and work for the county public defender. And one of the frustrating things I found there was that the investigators seemed to be separated from the rest of the office. Part of that is that because they were all ex-cops, so they didn’t identify with the rest of the defense team. If you have some hippie dippy liberal defense lawyer and an old former cop, they’re just not going to mesh. Especially these days. I mean, think about the George Floyd protests. You had public defenders out protesting and calling for defunding the police — and I get that, believe me I do — but then you have to try to work with these ex-cops who are the investigators for your clients.

So I’ve really come to value the team approach to criminal defense. You need a team of specialists. You need a good lawyer, obviously. You need a good investigator, preferably not an ex-cop. You need a good paralegal — man, do you need a good paralegal. People outside of this world don’t understand how important paralegals are. They’re the most important people in the whole system. A good one is absolutely worth their weight in gold, because your records are your lifeblood. . . . And having somebody who can keep everything organized in a useful way is just, you know, it’s just extraordinarily important.

And then yeah, you need a mitigation specialist or social worker on staff. Every case is different. Every client is different. So these cases have to be individualized. The whole point of our sentencing structure is supposed to be that it's individualized. We started fucking all of that up with the sentencing minimums and taking discretion away from judges. But even with all of that, we do still have an opportunity to individualize these cases. Even if he’s guilty, your client is not the same as every other robber or murderer, and they shouldn’t be classified that way. We sentence people for different reasons. So it does matter how your client got to this point. Sentencing needs to be particularized to who your client is and how he got there. And we don’t do nearly enough of that.

Yeah, it seems odd that even though there are different motivations for punishment — retribution, incapacitation, rehabilitation, deterrence — for a few decades our sentencing system moving away from that, toward treating everyone the same. I remember the longtime defense attorney Sam Walker made this point to me several years ago: A mugger who carries out his crime cooly and calmly is a much more dangerous person than a mugger who’s on edge, nervous, and screaming at his victim. The first guy is probably sociopathic, and unlikely to be rehabilitated. The second is likely someone committing crimes out of poverty or addiction, and can be rehabilitated. But we find the latter scarier, so he gets the longer sentence.

Yeah, and that’s what holistic defense tries to do. That’s one thing I noticed when I briefly returned to the county public defender that they were really doing right — they had a staff of mitigation specialists and social workers. So they were doing things like arranging rides to make sure clients could get to court. Making sure that they had housing resources or medical resources or mental health resources. Helping them find work or keep custody of their kids.

Hell, even clothing. I donated all my suits to the FPD when I left. Some of these clients, they don't even have clothes to wear to trial. And you don’t think about it, but that sort of thing is just crucial. What a a defendant is wearing at trial can often tell you the difference between a defense lawyer who cares, who gets it, and a lawyer who just doesn’t.

I've seen the difference it can make. My former client Don Miller, the guy who was executed, his lawyer just didn’t give a rat’s ass. And you could tell. Just before he was executed, she called me up. She was really frustrated because Don was asking all these questions about his execution. Those weren’t legal questions, which were the only questions she was equipped to handle. But they were human questions that anyone in his position would ask. She got frustrated and called me and said something like, “I'm about to go up there and push the plunger myself.” I hung up on her and I haven't talked to her since — well, I guess except for when she subpoenaed me for a case.

I mean, come on. This guy is about to be executed. And you’re mad because he’s asking too many questions? If that's your attitude, get out of this line of work.

I mean, on some level I get it. You get burnt out. Personally, I didn't like working for child molesters. There are certain clients you aren’t going to like. But you have to put that aside. And if you can’t put it aside, don’t do this work.

I’d like to talk more about mitigation, because I think it’s such a critical area of criminal defense that we don’t see depicted in movies or TV procedurals. It’s so important, and it takes such a narrow set of skills to do it well. A mitigator is trying to save your client’s life by making him sympathetic to jurors. That can mean trying to persuade relatives to talk about childhood abuse — abuse they may have inflicted themselves. Or you’re trying to get a client to talk about abuse they may have buried for years, or are too proud to talk about.

It seems like it can also involve negotiating some blurry ethical lines. My co-author and I wrote about Levon Brooks case in our book. Brooks happened to be innocent. But the jury had just convicted him of raping and murdering a little girl. During the penalty phase of his trial, his attorneys brought on this neurologist to say Brooks was missing the part of his brain that governs impulse control. I remember how bizarre it must have been for Brooks, knowing he was innocent, to sit there and listen to this scientist say he was some sort of mutant monster. That expert’s testimony was obviously bullshit. His attorneys weren’t very good, and they were just throwing mud at a wall to save his life. [Brooks was later exonerated.]

Mitigation just seems like such a minefield. But it’s so important. The stakes couldn’t be higher, yet to succeed you have to all these people to talk about things they really don’t want to share with you, much less state in open court. And I’d imagine it could get awfully tempting to find and use information you suspect isn’t actually true.

I have a lot of admiration for mitigation specialists. And that isn’t something I could have said 20 years ago because back then I didn't really know what mitigation was.

I think so much of this goes back to what I was saying before about criminology and why people commit crimes. I think that of all the factors associated with crime — drug use, mental health, poverty, and so on — crime is ultimately about regulating behavior. All of our behaviors are governed by emotion. And the inability to regulate and control emotions makes us do stupid things.

The hardest capital cases to mitigate the ones where those no doubt about guilt, and you have these horrific, horrific crimes.

Your goal is to contextualize, to get jurors off of looking at everybody's actions through their own life experiences, and get them to see what happened through your client's life experiences. As you can imagine, that's really hard.

But again, it goes back to telling a story. And I don’t mean that in the sense of telling a fictional story. You present the information you’ve found in a compelling way. You have to involve the listener — the jury — emotionally, because that's when people start paying attention. That's when people start kind of getting it. I don’t think it’s manipulative. It’s presenting the whole story. It’s the only way to kind of get people to understand.

Some of my clients were failed by the state countless times over the course of their lives. The state failed to separate them from an abusive relative. Or they were abused by foster parents. Abused by cops. Abused in juvenile detention. What did we think was going to happen to this person, who was just abused over and over and over again? When you break a kid's brain, it's really hard to fix. And sometimes you can break a kid’s brain to the point where it’s just never going to be fixed.

At the FPD, we went back two generations. We didn’t stop at birth. We didn't stop at your mom. We went to your grandparents. We looked for intergenerational trauma. You need to tell the story story of how your client went from that cute little baby boy or girl in the photos hanging on the wall to the person sitting in front of the jury.

When these horrific crimes happens, the cry from the public is always the same. Why? Why would this person do this?

Now we have mitigation specialists telling everybody why, but nobody wants to listen to them. But the why is there. If you want to know it, it’s there. People want to dismiss it, to poo-poo it. “Oh, the poor baby was abused. Hey man, I was abused too and I didn’t kill anyone. I turned out okay.”

But you know what? You probably aren’t okay. I’ll bet you still have problems from it. It’s just that you had the means and the help and the support to prevent it from breaking you.

When I started to realize all of this — and part of it required looking back at my own life — I came to understand how the sweet, smiling little kid becomes the guy sitting at the defense table.

I think we understand a lot more now than we used to. But there’s so much research on brain science that we’re going to learn over the next 50 years that I think will just be revelatory when it comes to behavior and crime and how we regulate emotion. But right now we operate based on what we know. Or what we knew when we developed the system we have now.

Not all stupid things are crimes, of course. The inability to control emotion might make someone people spend more money than they have, or overeat, or drink too much. But there was a point later in my career when I could go back through my client’s cases, and I could tie every single one of client's crimes to their inability to regulate whatever motion was controlling their behavior at the time. So I tend to look at mitigation through that lens. You need to explain your client’s life, their history, all the things that have happened to them.

“It got to the point where I could read reports and pinpoint the exact moment in some guy’s childhood when he was broken . . . I could often look into a client’s face and see that little kid, still frozen in there, just frozen in time. “

It can be at least a little less daunting when you’re talking about crimes of opportunity — robberies gone bad, that sort of thing. Because of the felony murder rule, I've had clients who were 300 feet away from the fucking crime scene and still ended up on death row. In those cases you want to explain how your client ended up in that situation. People will say, “Well, he chose to participate in this robbery plan. He made a choice. So even if he didn’t pull the trigger, the law says we treat him the same as if he had.”

With mitigation, you’re trying to convince the jury that yeah, it was a choice, but it wasn’t a choice in the common way we all think about a choice — like picking vanilla ice cream or chocolate ice cream. These are choices based made in the heat of a moment, or under extreme stress, or with a brain that doesn't function properly or that may be addled by drug use or mental illness.

None of these cases are easy for mitigators. Which is why I admire them so much. I wasn’t a mitigation specialist, but I did sometimes have to do it out of necessity because we didn’t have someone on staff. There were a couple times that I had to go interview the guys who had molested my clients when my clients were children. Some of those clients had then been accused of abusing kids themselves. Those were never my favorite cases, and I didn't do a lot of that work. Hell, I once caught a friend of mine who was molesting little girls. I personally helped put him in prison, where he promptly hanged himself. I’ve just never been all that comfortable with representing people accused of that sort of thing.

Luckily — and I mean that in the worst way — my clients' lives are just full of tragic events would wreck anyone. Back in 2011 we had a clemency hearing for a client in a robbery gone wrong. He had been abused by three different people as a kid. Again, there’s always something — there’s always that moment where these guys’ brains were broken as kids. So after interviewing our client, the mitigation specialist and I tracked down one of the people who molested our client when he was like 12 or 13.

We flew out to Illinois and, miraculously, this guy agreed to an interview. I still don’t know why. Actually, I do know why — because our mitigation specialist was really good at her job. She just knew how to talk to people. I never never would have gotten that interview. So we knocked on this guy's door and she just plainly said to him, “Hey, I want to talk to talk you — I really want talk to you about your relationship with Tom.”

I'm thinking right there, this interview is over. This guy's going to kick us off his porch and that’s going to be it.

Instead he says, “Okay. Come on in.”

We talked to him for the next six hours. Then he called us back the next day and talked to us for two or three or four more. He proceeded to tell us in great detail about all of the abuse he inflicted — not only on my client, but on all sorts of other little kids in that town. We recorded the whole thing. I mean, he consented to being recorded.

When we got to the clemency hearing we played that video, and as we were playing it, we put a picture up of Tom, our client, at the age he was when this guy was abusing him. As this pedophile talked about how cute my fucking client's curly locks were, the clemency board saw a picture of my client as an 11-year-old, with those same curly locks. I’m sure it disgusted them.

That’s what I mean. If those clemency board members had only read about the abuse my client suffered, or only heard him talk about it, they could just dismiss it him trying to excuse his own bad behavior. But we made them see that kid at the age he was being abused, how he looked at the time, how he looked when he was broken. We let them hear the freedom and the glee with which this guy was just openly discussing doing this stuff to our client. It was just heart-wrenching and infuriating.

That was one of the most difficult clemency boards I dealt with in my career. But we got two votes. It wasn’t enough to help my client. But it more votes than we got in any other case.

You got a guy on video admitting to abusing your client and other children. Was he ever prosecuted?

Nope. And I’m going to go off on an aside here, now. But you know, this is what really angers me about all the anti-trans bigotry going on right now. That guy abused those kids at a time when there was this huge collective closet in our society. When you shame people from talking about sexuality that isn’t quote-unquote normal, you shame them into keeping quiet about abuse, too. And that’s an environment that allows real predators to thrive. So instead of getting help, these kids’ brains stay broken, and they go on to hurt other people.

My client in that case? He actually did tell his mom and dad shortly after the abuse began. His dad responded by telling his kid he was “queer bait.”

Wow.

Yeah. You’re shaming victims from speaking out by calling them gay. It’s like repression on repression. That’s how you keep abuse hidden. That’s how you let groomers — real groomers — operate without fear. I mean, this guy relied on it. Everybody in town knew that he was molesting little boys. He told us he once answered the door and a guy punched him in the face and said stay the fuck away from my little brother. But he knew he was never gonna be charged because no victim was ever gonna come forward. They didn’t want to be called a faggot or queer bait. So nobody in that town ever dealt with this guy, even though everyone knew what he was doing. That’s why I get so angry about this “groomer” nonsense. It isn’t just the bigotry. It’s that when you marginalize people for their sexuality, you enable real abusers.

I guess that’s an obvious consequence once you think about it. But it’s a horrifying thought.

But my client’s situation in that case isn’t uncommon. Nearly all my clients who committed horrible crimes had people abusing them that everybody knew about — sexually, physically, emotionally, or some combination. Or their own parents were abusing. It was often just swept under the rug. You got cases dismissed or you got charged with, you know, non-sexual crimes like attempted assault on a child or something. So the abuser moved on to the next town and started abusing again, because nobody talked about it.

But I got off on a tangent.

We were talking about mitigation.

Yeah. I think every case should be mitigated. In fact, when I first retired, I kind of thought that if I could work at all, I would want to do non-capital mitigation. Because I think about 90 percent of my clients over the years could have benefited from mitigation. But you rarely see it outside of capital cases.

I didn’t see it much when I was doing private trial work. You just didn’t see lawyers make strenuous, reasoned, well-investigated arguments for mitigation. Even if it’s just getting two and a half years taken off a class three or four felony. That’s two and a half years that a guy's not sitting in a fucking cage. It matters, you know.

It also educates these judges, some of whom are sitting on the bench without having done any criminal work as lawyers. It also educates the general public, and helps fight this law and order mentality that everybody seems to have. That's the other reason I want to write this book. It’s the profound misunderstandings that people have about the system and how it works in real life. It just frustrates me to no end.

It’s fascinating because for as unheralded as mitigation is, both the U.S. Supreme Court to the ABA have emphasized how important it is to a constitutional defense. And it seems to work. Brandon Garrett convincingly argues that since the Supreme Court started enforcing mitigation requirements, we’ve seen a big drop in death sentences. It seems like when juries are forced to confront a defendant’s humanity, they’re less likely to sentence that defendant to death.

Exactly. I had a case in which my client had been convicted of killing a police officer. By the time I got the case at FBD, part of the habeas claim was that his lawyers hadn’t done enough of mitigation. And of course, the response from the state was that it wouldn't have mattered. But at the same time as my client’s crime, there was a guy up in Pinal County, which is arguably much more conservative than Pima County. That guy similarly killed a police officer during a shootout at a meth house. His lawyer did a ton of mitigation. And in the conservative county, the cop killer and meth dealer got a life sentence.

Meanwhile, the lawyers for my client refused to hire a mitigation specialist because they said they had done enough capital cases, so they could do it themselves. First, that was a lie. They had done very little capital work at that point. But it was also wrong, because lawyers can’t do mitigation themselves while they’re also litigating a case. It’s too much work, but it’s also an entirely different set of skills.

My guy got the death penalty.

Similar cases with real similar facts. Mitigation matters. And again, it’s not just for a particular client and a particular sentence. I think it’s about helping to change the public's view of crimes and why people commit them.

You’ve referred a few times to your disability, which forced you to retire early. Are you comfortable talking about it, and how it has affected your work?

Sure. I have no problem talking about that.

I was 18 and had just signed up for the Army. There was a delay because of some medical issue I had when I was kid. So the Army doctors said I needed to get it checked out and couldn’t join the Army until I was cleared by doctors.

As I’ve said, I was a bit of a hoodlum back then. So shortly after all of that, I went to a party in the foothills of Tucson. At that time, that area was kind of sparse, and there was just a two-lane road. Long story short, on my way back from the party my hat flew out my car window. I stopped and got out to get my hat, and this car came over the hill at about 55 miles per hour and just creamed me. Just went right through me.

Luckily, I had put my arm up over my head. So when I went through the windshield, I tore my arm to pieces, but I didn't break my head. I probably should have died.

That just turned me into a pretzel for a long time. After a couple years I was able to kind of get up and around, and eventually I was able to function. But I’ve always dealt with some residual pain from all the breaks and nerve and tissue damage.

I remember when I got hit, a doctor told me — he said, look, you're gonna be fine until you hit about 50, and then you're probably gonna fall apart. And that's exactly what happened.

In about 2015 or so I started getting a lot of pain in my hip. It just kept getting worse. The doctors still aren't even a hundred percent sure what's wrong down there, except that I seem to be full of scar tissue. Anyway, I have a tremendous amount of pain and discomfort if I sit for any length of time. And of course as I said, my job as an investigator involved a lot of sitting at my desk, sitting in a prison, sitting on an airplane, or sitting in a car.

I was still relatively fine. Prior to joining the FPD I was still doing defensive tactics, training, gun stuff, even doing fighting stuff like jujitsu. So I was fairly active and I thought, okay, I'll live, I’ll deal with some pain. And then all the other body parts started falling apart. It just got progressively worse and worse and worse. I was missing too much work.

I had a couple surgeries and that's where they kind of discovered all this scar tissue, riddling my muscles and my stomach. I've been going to physical therapy off and on for four years now, but I think body has just quit. I don't really expect that I'm ever gonna get too much better. It’s just a fight to keep it from getting worse. But, I do still have delusions about going back to work and doing this stuff again.

I guess sometimes I'm like, who needs all that secondary trauma? But again, this isn’t my job. It’s my life. It’s who I am. And so far I haven’t been able to figure out how to stop. I just keep volunteering to help with cases, even though I know I shouldn’t. I mean, sometimes it’s made me fall. I've taken a bunch of falls because I just can't respect that my body doesn't work the way it's supposed to.

This last year has been especially difficult because Arizona has executed three people and my office represented two of them — and represented the third for a while. It makes me want to go back to work. I just want to help. I want to get in gear. It’s difficult to not be able to help.

It just frustrates me to no end that something as stupid as this is keeping me from doing the job that I love so much that it’s part of my identity. But the reality is that I just couldn't continue.

I’d love to get a magic shot tomorrow that would allow me to be just pain-free enough to go back to work. Because as much as it worked sucked sometimes, I miss the hell out of it.

There’s this general attitude on Death Row — “hope is poison.” I never really got that until my health started failing. I want to be hopeful that I'll get better and that I can go back to work. But I know reality is that probably isn’t going to happen. So I’m trying to figure out what I can still do. I still have a small contract with my old office to help out on a case I had worked on previously. And some lawyer friends who work in places with no investigative budget have contacted me over the last few years to consult on cases. I’m just trying to figure out what I can still do.

You’ve mention how we need better training for defense investigators — to make it a speciality or a profession that isn’t just populated with former cops. That seems like something you’d be good at.

Oh, I would love that. I know that there are people outside of law enforcement who are getting into the work now — people who are coming into this with the right mindset. That’s really encouraging.

I’d love to do something where I had some influence over training investigators. But those opportunities are rare. The FPD is great about training investigators, and the office has a good investigative unit. But that’s the federal government. I don’t think that’s the case with most public defender offices around the country. And as important as I think defense investigation is, it’s not an issue that gets a lot of attention, so it’s probably pretty far down on the totem pole in terms of what gets attention and funding.

So finally, I’d of course like to talk to you about the Barry Jones case. How did that case first cross your desk?

Yeah, so when I got hired at the FBD, it was late September in 2008. And the week that I started there Barry lost his habeas case in federal district court. It had been sitting on the judge's desk fully briefed for something like seven years . . .

. . . Sorry to interrupt, but seven years? How does a fully briefed case sit on a judge’s desk that long?

If I recall the timeline correctly, an Arizona case that would have impacted Barry’s case popped up between the time the case was briefed when the judge was going to make his decision. So any time you have a case working its way through the appellate courts that might impact a bunch of other cases, judges will throw the possibly-impacted cases on the back burner, because there’s no point deciding a case that you might have to decide all over again if this important case goes one way or the other.

The case was Ring v. Arizona, and the question was whether it should be a judge or a jury who determines if the aggravating factors in a murder merit the death penalty. The Supreme Court decided it should be a jury. The Arizona Supreme Court then decided that decision should be applied retroactively, but drew this bright line about where you had to be in your appeals in order for it to apply. They ended up revisiting a bunch of cases, but Barry was unfortunately on the wrong side of that line.

I find those cases bewildering. The Supreme Court says, “Hey, this thing that the state is doing is unconstitutional, but we’re only going to ban it going forward. So all the people whose constitutional rights were already violated by this practice up until now are just out of luck.”

Right? They don’t even go back to see anyone else had already tried to bring the same claim and was denied! The Supreme Court now says that excluding juries from the death sentencing process is unconstitutional. To do it is to violate of the rights of the accused. But if you had brought the exact same claim in 1990 and lost because nobody on the court cared about that right back then, it’s just, oh well. Sorry.

So let’s get back to Barry Jones’ case.

Yeah. So I started at the FPD on a Monday, and on Tuesday they put me on a plane to get some training. I was assigned maybe eight or nine cases when I first got there. But once the federal court decision on Barry’s finally came back, he was now on the clock. So we had to get something up to the Ninth Circuit pretty quick. So I probably started looking into his file within the first six to eight weeks of starting at FPD.

At what point did you start to think Jones might be innocent?

Well they told me early on that Barry had an innocence claim. And in the course of doing trial work, I'd obviously heard plenty of people claim innocence. But look, until the jury comes back with a verdict, everyone is innocent. And that’s the way I approached my job.

It isn’t that I didn’t care if someone was guilty or innocent. But for me, my job was to find facts and information that challenged the government’s case. I wasn’t motivated by guilt or innocence because neither of those things really exist until a jury says it’s one or the other. Until then it’s just a person accused of a crime. As far as I was concerned the state had to prove its case, and my job was make them do that.

Once a jury renders a guilty verdict, it takes a lot to overcome that. A lot. And short of DNA evidence, it just doesn’t happen that often. So I guess my initial thought process going in on these cases is — it’s not that I’m rolling my eyes at a client’s innocence claim — it’s that lots of people have innocence claims. My job is to uncover facts that help my client whether there’s an innocence claim or not.

In Barry’s case, the FPD had already put together some good information. This Dr. Janice Ophoven, a pediatric pathologist out of Minnesota, had serious problems with the trial testimony from the state medical examiner. But that was out of my wheelhouse. I’m not a doctor or a pathologist.

But the more I looked through the file, the more it seemed like something was fishy. I started to approach it like a trial case instead of a federal habeas case, both because it seemed like there were a lot of facts that Barry’s lawyer had missed, but also because that’s what I was used to, and that’s what I was good at.

So I started looking through the trial transcript. Having just come from doing a bunch of trials, I knew what to look for. I knew the signs that show you when an investigating detective gets tunnel vision. And I’m seeing a lot of things that just don’t make any sense.

I mean, by definition trial transcripts aren’t going to show you what evidence was never introduced at trial. So I can’t immediately say, “Oh, here’s a red flag.” It was more just an inkling really early on that something about this case stunk.

So at that point I just started treating the case like one that hadn’t yet gone to trial. I started building timelines and reading police reports. Police reports are great in that they give you all sorts of information, but after you've read a couple thousand of them, you know that where they’re really helpful is in what isn’t in them. And there was a whole lot that wasn’t in those reports.

So I’d say that within a couple months — definitely by the end of 2008 — I realized there was something very wrong with this case. We were fortunate enough to get a delay from the Ninth Circuit, so that gave me the time to really dive into the case.

The first thing we discover is that the evidence we wanted to test for DNA was gone. The process of figuring that out took maybe a year or two. We learned that the police had gathered all this evidence and kicked it back to their evidence room. The prosecutor then decides what they might want to admit at trial. So the cops bring it all down to court. Some gets admitted, some does not. The admitted stuff stays with the clerk's office at the courthouse, and the other stuff is supposed to go back to police evidence.

As I start looking through evidence logs I figure out that instead of taking the evidence the prosecutor didn’t want to use back to the evidence room, Sonia Pesqueira, the lead detective, took it back to her office. It’s then months before it's finally logged back in to evidence. Shortly after that, the sheriff decides the whole evidence system is a big clusterfuck, so he decides to reorganize everything and move to a barcode system.

And as they’re doing this massive reorganization evidence some guy threw out a box full of the evidence in Barry’s case. Just threw it out. That box contained the stuff we wanted to test. It took a couple more years just to figure all that out.

During that time, I'm looking into all of these holes in the case. The main problem is that it just becomes overwhelmingly clear that the lead detective gets a bad case of tunnel vision — instead of trying to find the killer by collecting and analyzing all the available evidence, she decides early on that Barry is the killer, and her investigation is just looking for evidence that confirms her hunch.

Look, I'm an investigator. I've gotten tunnel vision before. I get it. But you’re supposed to break out of that at some point. You test your assumptions to make sure your hunch is right.

Pesqueira doesn’t do that. She just stays in her tunnel. She's convinced it's either the mom or Barry, and she's pretty sure it's Barry. She later admitted that she spent — I don’t know — something like 30 seconds in the trailer where they all lived, because in her words, it was disgusting and she didn’t want to stay in there.

The other part of the crime scene is supposedly the van Barry drove. The state alleged Barry had harmed this girl while he was driving her around in this van. Well, I couldn’t find any evidence Pesqueira even looked at the van for more than a minute or two. Instead, she relied on photos of it. How do you not thoroughly inspect the actual crime scene?

As I said, Barry and the girl’s mother Angela were tried separately. But between the trials, the number of trips Barry allegedly took with the girl on the day of the alleged injury changed from two to three, and that’s another big red flag. One of these trips was to a store called the Choice Market, which is about half a mile down the road from Barry's house. Barry was a regular there — he's was there probably four times a week. The people who worked there knew him. After he told the police that he had gone to the store with the little girl, they get these two child witnesses, these young twins, who say the saw Barry beating the girl in the van outside the store.

Now, if you’re investigating this case, wouldn’t the Choice Market be one of the first places you go to talk to people? But there’s no report of Pesqueira or any other law enforcement ever visiting the store to investigate. Nothing.

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So what does that tell me about the police? Well it says you’re either hugely incompetent or — and here I'm getting really cynical — they did go there, and they learned that the clerk of course knows Barry, probably saw him, probably saw the little girl, and contradicted what the police wanted to hear. That's my cynical side. But that cynicism comes from experience.

I’ll tell you, I spent so much time trying to track down someone who worked at the Choice Market. It’s 16, 17 years later, and I'm trying to find a clerk who's worked there on this Sunday in 1994. And that’s something the cops should have done on day one. I pulled every police report at that market for, you know, six months on either side of this thing, trying to identify employees. And I just could never track them down. Of course, at the time they didn't have security cameras or anything like that.

So then I started going through the police reports again. In my experience the best way to tell which cops were actually at a scene is to look at the police radio logs. Because if there’s a report of a crime, a police sergeant will start assigning officers to go to the scene. If you’re a cop and you’re nearby, you radio your badge number, what you're doing, where you're going, and if you're reporting to this particular event.

So I start looking at the radio log in Barry's case, and there's, you know, 15, 16, 18 cops on there, and I can reference them with the crime scene logs to identify when they show up and when they go. But then I reference the radio logs with the police reports, and I've got police reports from other parts of the case from this guy who’s not on the radio log.

Okay. So maybe the guy just didn’t call in. But again, having done all those drug war suppression cases, now I'm a little suspicious. Because in my experience, you keep a guy off the radio log so he can do all a bunch of shit that you don't have to talk about later. So I started looking into this cop. His name is Ruelas. And I want to talk to Ruelas. But when I tried to find him, I learn that he’s doing 17 years in a federal penitentiary.

I ask to speak to him. He refuses my request. And let me tell you, Ruelas was a bad cop. Just bad. He had been a California highway patrolman for a while, where he was almost certainly running drugs. He had a, I want to a say a brother-in-law or something that worked at TPD (Tucson Police Department) out here. He had another friend who was a sheriff. So he comes out here and he gets a job at the sheriff's department. Then he’s immediately a detective. He spends a couple of years here, ends up going back to California, and then he gets arrested out there in a drug sting.

So we have a cop who was kept off the radio logs despite clearly taking part in this investigation, and he’s a cop who has no ethics or morals when it comes to his job. So now I’m thinking, okay, this is really starting to get bad.

I think it probably took all of that for me to really get to the point where I am now, which is that Barry is innocent and didn't kill anybody. It isn’t like I never had doubts. It’s just that I was approaching it like any other investigation. Guilt wasn’t part of the equation for me. I'm just kind of gathering facts. But the more facts I gather in Barry’s case, the more I realize that Barry just had no chance at trial. His lawyers gave him no chance. The state gave him no chance. And that isn’t uncommon. But this time, underlying all of that, is that this guy absolutely didn’t do it.

At that point I start wondering if I have tunnel vision. What if I’m wrong? Let's test my assumptions again. So I did. Over and over. And nothing about the state's case made any sense. From the get-go.

This is when you really start to work your own timeline and really test the facts that the state is putting out there. And when you start to write it all down and look at it from, you know, a few feet back, it's just abundantly clear that the state didn’t win this case on the facts. They won by tugging on the emotions of the jurors. The problem is that Barry’s lawyers didn’t try to stop them. You have a dead child, a four-year-old girl. She's very small. She's extremely sympathetic. And they weave this tale around your sympathy for her. And here’s this guy she was with, who wasn’t her father. And she gets hurt in his care. And then she dies. And oh yeah, there were signs of sexual abuse.

So I go back and talk to everybody I can find. Anyone who could know anything, including people who were now adults, but who were 5, 6, 7 years old at the time of this girl’s death. And after every rock I kick over, I’m just more and more convinced that this is just all bullshit.

So then you really start to put the state's investigation under that microscope again. And it just keeps coming back not to what the state did, but what they didn't do. They arrested Barry on a Monday. The crime supposedly happened on a Sunday. Wouldn’t you want to know what Barry was wearing that day? Wouldn’t you want to know what the little girl was wearing that day on the Sunday? Maybe test her clothes? She’s in the hospital the next day, they gather her clothes, and then that's it. The clothes are gone.

At this point Pesqueira has been a sex crimes detective for years. She knows what to do. If you’re looking for evidence of a sex crime that happened the day before, you start with the clothes the victim was wearing the day before. But they never did anything like that. Her clothes were never tested.

They also never did anything to confirm or discount any of the information Barry was giving them. Watch his interview tape and the police had him for five or six hours. There were three different cops. They pulled every trick in the book to try to catch him in a lie or get him to confess.

He doesn’t falter because he d there's nothing to falter over. He's telling the truth. He’s giving the police all this information that they easily could go out and verify or contradict. But they never bother.

Can you talk a bit about the medical evidence?

Oh yeah. To be honest, on some level everything I just told you is beside the point. This case should have been over with the medical evidence, because there's just no way this crime happened on the day the state said it happened. But that’s the only day it could have happened for Barry to have done it. So that’s when they needed the injury to have occurred. But they did no investigation. When you have a sex crime, you look at everyone who was with the child in the last 24 hours. If you’re a good detective, you go back 48 hours. And really, you should be going back a week at least, if not doing a whole life history on the child, especially when she's only four years old.

As I understand it, there was no evidence she’d been recently raped at all. Is that right?

Well that’s the other thing. This child had an injury to perineum and her vagina. There's definitely an injury there, but it was evidence of much older abuse. It certainly could have been the result of penetration. But it wasn’t new. And this trailer park had several residents who had previously been accused of sex crimes against children. Some of the kids had talked about other kids molesting them.

But Barry had never had any accusation like that leveled against him. Maybe I’ll get myself in trouble for saying this because I’m sure there are exceptions, but in my experience, no one just wakes up one day at age 38 and rapes and murders a four-year-old. I think you can go back through the history of any 38-year-old sex offender and you’re going to find a history of arrests or convictions or at least allegations. Barry had never been accused of anything like that. You know, he was never caught in front of some school with his willie out. He never abused own kids. There's just none of that.

Now look at what the state alleges. They say he took this four-year-old girl out, raped her in broad daylight in his van, and then took her immediately back to her family and her friends. And she says nothing. Everybody who sees her says she looks fine. She's playing. She’s smiling. It just doesn't make sense.

Then the state alleges that he hit her with this pry bar that they found in his van. Well, look at the crime scene photos. The pry bar is like underneath his seat, underneath all this other heavy stuff. It’s all covered in dust. So you’re telling me that Barry took out this pry bar, beats this child in the stomach with it, then he carefully placed that pry bar back underneath all this stuff without disturbing the dust on all the stuff on top of it?

Rachel had also gotten a cut on her head that day. So this same guy — Barry — on the same day he beat her, he takes a cloth glove, fills it with ice and puts it on her head. There was a little bit of blood on that glove from the cut. And it was wet from the ice. So he hung it out on his fence to dry. We’re supposed to believe that after beating this girl to the point where she later died, he took the time to carefully put the pry bar just as it was, but then he just carelessly hung a glove with her blood on it out on his fence? I mean, that’s like a neon sign that says, “Come investigate me! I hurt somebody!”

Weren’t the state’s main witnesses also children?

Yes. The state’s theory was basically presented by a bunch of kids. There were two eight year old twins who thought they saw something at the choice market. And, and there's Rachel's sister who was 11 or 12 at the time she testified.

I don't hold any of this against an 11 year old who was obviously growing up in a troubled environment. But kids that age aren’t reliable witnesses. And I sure as hell wouldn't have relied on them to execute a guy. But, but that’s what the state does. And it’s the sister’s testimony that changes between the two trials. At Angela’s trial, she says Barry and Rachel took two trips that day. At Barry’s trial she says three. This wasn’t an innocuous mistake. Angela’s lawyer really nailed down the two trip thing, because if Rachel looked fine after each of those two trips, he could say Rachel was injured later, while Angela was asleep, and the state couldn’t argue that Angela was complicit because she saw that Rachel was injured and did nothing about it.

So at Barry’s trial they put Rachel’s sister back on the stand, and she says Barry and Rachel took three trips. The prosecutor knows that's horseshit, and I know she knows it’s horseshit because, because she then abruptly stops that line of questioning with this child. Now this child is the only witness to this trip in which you’re alleging a rape occurred. You’re not going to try to get every detail you can out of her? You sure did at the other trial. When did they leave? When did they come back? Where did they go? What did they do?

There’s one of that. None of that. This prosecutor goes on, you know, for six or seven pages talking about other shit. I could almost see her skipping a whole section of her notes when she got that answer, because her next questions are about whether the kids are allowed to play in the van — irrelevant stuff. The next set of questions should have been, when did he leave? When did he come back? When did he leave the second time? When did he come back?

But now she's got this other answer. She knows she can't compound the problem. . But then Barry's lawyer, who is so unprepared for any of this, he gets up there and he starts asking about the third trip that never happened! So the sister says, oh he was supposed to go to his brother's house, but he never did. And they bring up the brother’s wife to say Barry never showed up that day. And now that gives the state the opportunity. It gives them the lie. It creates this whole window of opportunity that Barry was supposed to be somewhere with this girl and he never showed up.

And it's all made up. None of it ever existed before. All because this little kid said there were three trips, where at the other trial she had said there were two. And that was it.

There's just no way Barry had done this. But now there was this whole case built on bullshit.

Can you talk about the evidence you found that hadn’t been turned over to Barry’s defense team?

Well the big thing was the interview tape. I'm sure there was some other stuff, but that was the main thing. There had been rumors in the neighborhood that Rachel had been playing with these two boys that day, and that there were some kids in the neighborhood known to hurt other kids. Of course the state poo-pooed that idea. The prosecutor dismissed the idea outright at trial, and really sort of mocked it in closing arguments.

When I first got the case, the county attorney had had this open file policy that they were always boasting about. So I said, hey, let's test this open file policy. Let's ask for their file and go review it. They stalled and delayed, and it ultimately took some months — or at least weeks if I remember — to take the privileged information out before they’d let us see the file. But they finally let us they let us come in. They had 8, maybe 10 boxes of stuff.

The very first box I opened was a box of interview tapes. And the very top tape had a name on it that I recognized. It was one of these two little kids that this girl had been playing with that that day. So we popped the tape in and we listened to it.

You hear this investigator who works for the county attorney. She’s quizzing this little kid and the tape starts off with, “Hey, remember when I was here last time?” Well okay! Now I know that there’s yet another tape that was never turned over.

Anyway, she starts looking over this kid and it seems to me that she's doing a child abuse investigation. She's looking for marks, she's looking for, uh, bruises and stuff. She gets the kid to take off his shirt and he's got this mark across his chest and she says, where'd you get that mark? And he says, my brother hit me with a stick.

Now, my belief is that the brother he's talking about is the same kid other people had seen hitting another little girl in the stomach with a crowbar that day. None of it was turned over to Barry’s lawyers.

And this was what the state claimed to be the cause of her death, right — a blow to the stomach?

Right. This girl had a pattern injury on her stomach that the state tried to allege was from that very thin pry bar in Barry's van. But if you listen to the descriptions of what all these other people say this kid was walking around with, it sounds like he was hitting other kids with a tire iron. Now I'm not a bit proponent of the pattern matching stuff, but if I had to say if the marks on this girl’s belly were from the pry bar or the tire iron, the tire iron wins 10 times out of 10 times. It just fit the type of injury better.

They put on a medical examiner who said this girl died from a condition caused by a blow to the stomach a day earlier, committing themselves to this narrow timeline that put her in Barry’s care at the time of the injury. But we now know that there was no scientific validity to that timeline. What he said about the injury just isn’t true. No doctor would say that today.

Barry's defense lawyer hired this investigator George Barnett. He’s a very good investigator. If they’d kept him on, I’m positive George would've figured all this out. George was an ex-cop. He didn’t think very many people were innocent. But he was convinced that Barry was. In fact, back in 2009 or 2010 when I interviewed him, he told me this was the only case where he thought his client was definitely innocent.

Was he taken off the case?

They just never called him back. He wasn't necessarily taken off the case. Back then, you had to ask the judge for funds to pay an investigator. So Barry's lawyer got the judge to say, okay, you can have a little money for an investigator. And they sent the investigator, George, out to do some initial work. I don't even think they had the police reports by that point. So it's really kind of sending him out blind. George came back with a multi-page report after talking to people in the neighborhood. And, and you know, again, George had been a homicide detective. He had been a cop. He would've found the same holes I found. Anyway, he goes and does this initial investigation. They take his report and then . . . that's it. They never call him back. Well, I think they called him back about two weeks before the trial to go take pictures of the van — which were really kind of pointless.

Why didn’t they ask him to do more investigating? I really don’t know, other than just incompetence.

I think one of the biggest misconceptions about the legal system is that there are all of these layers of appeals to catch mistakes. I don’t think people understand that this isn’t what appeals courts do. I mean if you look at this case, by the time you get brought on for his federal habeas petition, a critic might say Barry Jones has been convicted by a jury, he’s had his direct appeal to two appellate courts, he’s had his state habeas claims, and how he’s in federal court. So people think that’s a lot of judicial review. Yet you found this evidence that no one had found until more than a decade after his conviction.

Well if your question there is why was I able to find all this evidence, the answer is that I was the first one to look.

These cases are rough, okay? Cases that involve children are really rough, and nobody wants to look at those pictures. Nobody wants to get into all of that kind of stuff. And so maybe there's some of that. You hope it isn’t the case, but I’ve worked with plenty of lawyers and even other investigators who just don’t want to look at autopsy photos of kids. I get it. I didn't wanna spend my life looking at them either. Um, so maybe that's part of it.

But, but in Barry's case he was assigned a lawyer at trial named Sean Bruner.
Sean's a good lawyer. He’d been doing it for a while. But at that point, back in the mid-nineties he’s taking all these contract cases and he’s also got a private practice where he has some big money private work. Or “bigger” money, I should say. I don't know how much he was making, but private work is obviously going to pay more than county work. So it only makes sense that he was spending more time on the work that paid better.

Sean had a woman working for him who's now a judge, a magistrate in district court named Leslie Bowman. At the time Leslie was like a year out of law school. And she did the vast majority of the work on this case prior to trial. She attended Angela's trial, did the interviews. I don't know if this is what Sean did, but I knew of lawyers who would lag on a contract case and then start reviewing stuff a week before. You can't do that. You certainly can't do it in a murder case. But when I read through his trial transcript, it certainly looked to me like that's kind of what he did. He had such a minimal understanding of the facts of this case that he couldn't — he couldn't adequately cross-examine anybody. He barely put on any witnesses.

I think the only witness on Barry’s behalf was his daughter, who was also 12 and troubled and probably didn't make the best witness. I almost think Leslie would have been better doing the trial even though she had never done a murder case at the time. She probably had a little bit better understanding of the facts. I don’t want to put words in Sean’s mouth, but he later signed a declaration that basically said he just bought into the state's case. Which, it’s just jaw-dropping to me that anyone would say that.

But again, reading through the trial transcript, I just get the impression that he just maybe didn't think this case was worth putting any time into. Because they did the initial stuff — they hired an investigator, they contacted a medical examiner — but they never followed up.

So anyway, Barry gets convicted, he gets assigned direct appeal counsel. Now, direct appeal, um, you know, is just record based appeal. There's, there's not a whole lot of need to talk to your client. You can't bring in extra extraneous facts. You can only appeal on material that’s in the record. So the direct appeal goes nowhere.

So for post-conviction he has two lawyers. The first was in a sort of practical law partnership with Rep. Andy Biggs's at the time, interestingly. But this guy doesn't even know how to file motions to get money for an investigator. He tries, he fails, and he doesn't try again. he has very little contact with his client. He does zero investigation. He doesn’t dig up any new facts or look into the medical evidence or even do a simple timeline. I mean, zero investigation. I’m pretty sure he was running for Gila County attorney [the Arizona equivalent of district attorney] at the same time he's representing Barry.

He ends up off the case and Barry ends up with some other guy for a few minutes. That guy didn't do anything either. So then it gets to federal habeas, and I think our office got Barry's case in 2000. That’s five years after conviction. That's pretty quick for Arizona. But when his case hits our office, it’s the first time he has resources, good lawyers, good investigators and — probably most important — it’s the first time he has a defense team that's willing to listen to him.

I just hate that, you know? If he’d had an office with decent funding and well-trained professionals early on, the case never would have made it this far. And maybe it’s changing. I do think more people getting into indigent defense and public defense for the right reasons. But so much of it is the luck of the draw. Even if Barry had been assigned the guy that Angela got — who was not a great lawyer, not like some superstar lawyer here in town or anything. No no offense to the guy. But at least did the minimal work, and you can see the difference in the outcome of the trials. Barry's lawyer did freaking nothing. He got convicted and sentenced to die. Angela's lawyer did the bare minimum, hired an investigator, kept him on throughout the process, understood the facts. And that saved her life.

She got out eight years later. Now, frankly, I don’t think she should have done any time either, at least on that charge. But it’s just the perfect example of the luck of the draw because. Swap out the lawyers, and I might have ended up working for Angela.

So let's skip ahead a bit. Barry wins a new trial in federal district court based on new evidence and that the state’s theory of the crime couldn’t have happened the way the medical examiner claimed. That ruling is then upheld by a federal court of appeals. But then the U.S. Supreme Court agrees to hear his case. It’s a very complicated case, but the Supreme Court had basically created this small loophole for prisoners like Barry Jones, people who had ineffective lawyers during both the trial and post-conviction phases of their cases. The loophole lets them reopen their cases for the purpose of proving their ineffective assistance claim, which often requires new evidence. But then Arizona argues that prisoners shouldn’t be able to use that evidence, even if it establishes their innocence. The state is basically asking the court to close this loophole, which is all of a decade old.

Then, during oral arguments, the solicitor general of Arizona makes a claim that has since become pretty infamous — he tells the court that “innocence isn’t enough” for the federal courts to stop a state from carrying out an execution. What went through your head when you heard that?

Well. I don’t know. I just I can't believe anybody who has worked in the system for more than five minutes would ever utter those words. Maybe I'm corny or maybe I'm nerdy, but I take the principles this country is supposed to operate under pretty seriously. Goddamnit, you want to think that if nothing else, if nothing else, this system wouldn’t let a state just willy-nilly kill anybody that they wanted to. I mean obviously innocence is important. It sounds so stupid to have to say it. It’s the whole fucking game, right?

For him to stand up there and say that, I mean, I was livid at the time. I was, I was just screaming that the guy. I was screaming at him.

And at the same time, I knew it was gonna work. I knew it was gonna work. I knew he was going to win.

Because of the makeup of the court?

Partly that. But partly because the way the law is written, he was right. I mean, it’s fucking terrible. And any system where what he said is true isn’t a justice system at all. But that really is the way, the way the whole system is set up.

But he was right. And to me, that’s the point. That’s the system we’ve created. It’s a system where it’s okay to just whack a guy without ever bothering to even consider the evidence that he’s innocent, because he couldn’t get through the fucking Byzantine maze of procedural hurdles that it takes to get a hearing on the merits. They know they’d never win if they had to try this case again. They know there’s no merit to it. So they were trying to win it on a procedural issue.

And they won.

And they won.

I can’t imagine how that must have felt. There’s convincing evidence that this death row prisoner whose case you’re working on is innocent. It then becomes this landmark Supreme Court case. Then you lose, not because the court didn’t find the evidence persuasive. The court says it and other federal courts can’t even consider the evidence, because Congress decided that the states should get the final word in these cases, not federal courts.

I knew they would win. I knew it. I still haven’t even read the decision. I just can’t. I just can’t bring myself to read it. But that they won was all I needed to hear.

Burn it down. That’s where I am. Burn it to the fucking ground. There's nothing worth saving in a system like that.

Barry Jones is still on death row. But there are now some talks about a possible settlement. After the 2022 midterms, control of both the governor’s office and the AG’s office switched from very law-and-order Republicans to moderate Democrats. Are you optimistic about Jones’ chances now?

I'm 50-50. I am encouraged that we're going to get some new folks in office who may have a different attitude about these types of cases. And perhaps after a few months of thinking about things the state might be willing to come to an agreement. But it’s been a long road here, and mostly a bad one.

But before every new court date, I tell myself within a week I’m going to be having lunch with Barry at a restaurant somewhere. Because that's the only way I can keep myself sane. If I start to really think about the most likely scenario — where it’s two or three years from now and we're in front of some clemency board trying to present all this evidence again and begging for three votes governor who we then have to beg to sign off on it — man, I just don’t know. If we get to that point, we ought to be setting up the torches to light the whole thing on fire. I just . . . I can’t . . . I don't want to even envision that.

So, my thought is that by this May, I'm gonna be taking Barry out to lunch. Because that’s the only thing I can allow myself to think.

This seems like a dumb question at this point, but do you have any hope that the criminal legal system can be changed?

You’d never know it from our talk so far, but I’m a stubborn optimist. I know all the reason and rationality in the world tells me not to have any hope. But I'm still gonna believe. I guess I'm a nerd, and maybe I'm corny about this sort of thing. I still believe the principles that we supposedly live under in this country matter. I mean okay, to this point, no generation has managed to live up those ideas, or really even take them seriously. But while I’m cynical as hell, I don't feel defeated. I am encouraged that we're starting to get new blood in these defense offices who have more of that burn it down approach. I’m encouraged at what I’m seeing from young people now. Not our generation, but my kid’s generation.

I'm going to keep screaming about this bullshit. I’m going to keep screaming for Barry, both for him personally and so there are no more cases like his. Maybe — maybe someday some kid will hear the echoes of my screaming and maybe take it seriously, and maybe the people who come up after me will actually manage to get some of it changed.

That's all I’ve got.