In an interview that weekend with a reporter from the York Daily Record, he said he wasn’t sure that he wanted to go through another trial. He didn’t have anything left to appeal that he could tell—“I’m pretty much out of chances.” “My life is in here now, and I’m used to it…All those things that matter to me, I lost those four years ago.” He had returned to the death-row mindset of welcoming death—“If you’re going to say I did something I didn’t do, you might as well kill me. I guess that’s my one act of defiance. If your gonna do this, you better go all the way and kill me.”1
As at the first trial, the prosecution again asked for the death penalty. Ray spent eight more months in the Maricopa County jail. Eight more months of never seeing the sky, never feeling the warmth of sunlight, never breathing the air of the outdoors. Eight more months of green bologna sandwiches. Ray had lost twenty pounds by the time he was sentenced on December 10.2
“Serious issues were raised by the defense regarding the credibility of the testimony of Drs. Rawson and Piakis,” Judge McDougall wrote. “The court is left with a residual or lingering doubt about the clear identity of the killer…It is frightening to think that Mr. Krone did this, because it appears completely out of character. It is just as frightening to think that he did not do it and has been convicted on the basis of circumstantial evidence…This is one of those cases that will haunt me for the rest of my life, wondering whether I have done the right thing.” 3
Judge Mc-Dougall sentenced Ray Krone to life in prison, with a minimum sentence of twenty-five years before he could seek parole.4
On his birthday in January Ray would turn forty. He would be sixty-five, retirement age before he could hope for the chance of a life as a free man.
Back to Prison
Ray spent the next seven weeks in transit, being moved from one facility to another. At one point he was incarcerated with fifteen other men in a cell with only four bunks.5 His family lost track of him entirely. Finally, on January 31, 1997, he phoned and said he was back at the Arizona State Prison at Florence and had been assigned to the maximum-security wing, known as The Walls.
Ray went back to his job at the law library. Because he had traded his death sentence for life, he had more freedom. He was allowed recreation time in the yard with other inmates and went to the chow hall for meals. With the freedom, though, came added hazards and risks.
In the law library he had access to photocopying equipment. Sometimes other inmates would ask him to make copies of contraband, which was pretty much anything that was not a legal document—song lyrics, slogans, tattoo patterns were common requests. Ray would oblige them, finding a way to outsmart the guards, a courtesy that nearly cost him his life.
“One day one of the young punks says to me, ‘Hey, I need another copy of that tat.’ The guard was standing just a few feet away. I looked at the guard and didn’t say a word. ‘Gee, I need another copy of that tat,’ the guy says again. ‘You got the wrong person, dude,’ I said, and I turned to walk away. ‘Oh, it’s like that is it,’ he came back, ‘Oh, we’ll see about that.’”
Ray knew he had trouble, and it wasn’t long in coming. “Two days later, I’m out in the rec yard, standing around talking with this other inmate, and all the sudden he grabs me by the shirt and pulls me out of the way, and right about that time I feel something go by my shirt and here it was that dude, come up to stab me, come up to shank me in the back. He got me in the shirt and a little bit of my skin, not much. If that other guy wouldn’t have been there, he would have got me in the kidney.”
Inmates were charged for medical care, three dollars for a visit to the emergency room—if and when, that is, they received medical attention at all. Twice Ray suffered kidney stones, and the only treatment he received was Ibuprofen. When he broke his arm, he waited three days before the clinic would take an X-ray.
The most an inmate was paid for his prison job was fifty cents an hour. Ray was fortunate in that his family continued to put one hundred dollars into his prison account each month. Inmates who didn’t have money went without medical care. Infectious diseases—especially HIV and hepatitis—were rampant.
The Arizona Supreme Court reviewed the transcripts and evidence from the second trial and affirmed Ray’s conviction, rejecting his direct appeal.6 Ray’s court appointed attorney wanted to take his case directly to the U.S. Supreme Court, a strategy Ray adamantly opposed. He had regained his will to fight for his freedom, and he had learned the ins and outs of the law. If he followed his attorney’s advice, he would lose the option of a Rule 32 appeal based on new evidence. Ray wanted more sophisticated DNA testing done, test that would show conclusively that his DNA was not indicated in any of the blood or saliva samples.
Ray wrote a letter to the court of appeals asking to have a different attorney appointed to his case. Ray’s letter was never received and the deadline for filing a Rule 32 appeal expired.
Ray’s family, meanwhile, had been searching for a private attorney to represent him, someone with the qualifications and tenacity to take on such a difficult case. When Ray was convicted a second time, Chris Plourd had been frank with Carolyn and Jim Leming about Ray’s prospects—at best it would take another ten years to get him out. Plourd could not represent Ray, because, if all else failed, there was the possibility of trying to have his conviction overturned on the grounds of inadequate representation.
In the summer of 1999, Ray’s security classification was lowered from five to three. Because he was a model inmate, he skipped stage four. He was transferred to the Arizona State Prison Complex in Tucson, a vast improvement over The Walls. The main unit where prisoners were incarcerated looked almost like a two-story motel. There were far fewer restrictions. Visits with his family were at picnic tables in the yard, instead of via telephone on the other side of a Plexiglas wall. Ray’s computer background from the Air Force quickly landed him a job in the prison administration office, producing the passes the inmates were required to carry to verify their destination—the chow hall or rec yard or their prison job. Occasionally, when no one was looking over his shoulder, Ray could get on line and surf the Internet. He started taking classes in computer repair and was amazed by the vast changes in technology since his air force days.
Ray settled into the routine, determined to make every day the best it could be. He was even playing on a softball team. He wasn’t optimistic, though, about the prospects of being released. Prison was his life. Then when Ray had been at Tuscon just over a year, Phoenix area attorney Alan Simpson and investigator Tom Streed paid him a visit, a legal team put together by Chris Plourd and Ray’s cousin Jim Rix.
“‘Do you want us to work on your case?’ Alan Simpson asked me. ‘I have no money,’ I said. ‘That isn’t what I asked you, do you want me to take the case?’ Simpson said again. ‘I’d love to have you take the case from talking to you,’ I said, ‘It sounds like you’re listening to what I have to say and the issues I want to bring up, but I can’t enter into any contract with you, I don’t have any money, my family doesn’t have any money, we’re broke.’ ‘That’s not what I asked you,’ Simpson said, ‘If you had a choice, if you had the option, would you want me to start working on your case? We’ll worry about money, we’ll do something about that later on, but do you want me to start working on your case?’ ‘You talked to my family and friends,’ I said, ‘I want you to work on my case, if you think you can handle it, but I can’t sign any contract with you, no agreement of payment, because I have no money, and I’m not putting my family out.’”
That was all Alan Simpson and Tom Streed needed to hear.
The Fight Begins Again
Simpson filed for and was granted an extension on the appeal deadline.7 In the spring of 2001, the court held an evidentiary hearing on Simpson’s request for access to Kim Ancona’s clothing to allow for further DNA testing. The county attorney’s office was radically opposed to releasing Ancona’s clothing or anything else—“none of the scientific evidence used to obtain a conviction has been impugned or questioned. None of the scientific methods used to analyze the evidence in this case have been found invalid or unreliable.” The reference was to the bite mark evidence. The Lemings had filed a formal complaint against Rawson with the American Board of Forensic Odontologists for using CT scanning and other techniques not recognized in the organization’s rules and guidelines.
After much legal wrangling, the court finally granted Simpson access to police evidence. Kim Ancona’s clothes were released to Simpson for testing on October 3, 2001.
On the same day, Ray arrived at the Arizona State Prison in Yuma. In Tucson, warfare had broken out between Mexicans nationals and other ethnic groups, and to resolve the issue, the Department of Corrections decided to convert the Tucson prison to an all-Mexican facility. Because Ray’s job was critical to the prison’s administrative operations, he was in the last group to leave Tucson. For the past two months, he had been living in a tent in the prison yard, in sweltering heat, where the temperature often exceeded 100 degrees.
On September 30, Ray was loaded on bus with thirty other men. The drive from Tuscon to Yuma, normally a few hours, took four days. They stopped at another facility along the way, and Ray spent an entire day in a dog-pen like cage.
Ray had hoped to be taken back to Florence, since it was closer to Phoenix and his friends could visit more often. But the Yuma prison had beds available. A number of prisoners had died in a spate of recent race riots and others had been transferred to segregated facilities. When Ray arrived at Yuma, all services and inmate programs had been suspended, and lockdowns were routine, thirty men in a room with the bunks less than five feet apart—the housing was dormitory style—no visits to the law library, no exercise in the yard, no prison job. To make matters worse, Yuma was in the southwest corner of the state, along the Mexican border, where even in October there was no respite from the heat. It was, to quote Ray, “hot as hell.”
‘Roll up, it’s all over—you’re going home.’ I started shaking, ‘What’d you say?’
The tank-top saliva DNA sample introduced at Ray’s second trial had been a mixture of Kim Ancona and someone else, and while that someone else was conclusively not Ray, drawing definitive conclusions about the DNA characteristics of the second individual were difficult because the sample was mixed. The lab employed by Simpson isolated a saliva sample from Kim Ancona’s tank top which came from a single individual with DNA characteristics that positively excluded Ray and Kim Ancona, both.8 When Simpson notified Prosecutor Noel Levy of the results, Levy dismissed the information as just a “fluke.”9
Simpson, though, was encouraged and asked the lab to test two spots of blood found on Ancona’s panties. The blood on Ancona’s underwear had been overlooked entirely by Phonenix Police criminalist Piette and was discovered by the FBI lab not long before Ray’s second trial. It had never been tested for DNA characteristics.10
Alan Simpson received the results on Monday March 18, 2002. Not only did the DNA genotype exclude Ray and Kim Ancona; attached to the report was additional, unexpected data—the DNA profile of an inmate incarcerated at the Arizona State Prison in Florence. He was an exact match to the genotype indicated by the blood sample from Kim Ancona’s underwear.11
A lab employee had checked the results against the prison inmate DNA database, created in compliance with legislation passed by the Arizona legislature in 2000. At the time Kim Ancona was murdered, Kenneth Phillips lived just 600 yards from the CBS Lounge. Phillips was on probation for breaking into a neighbor’s apartment, choking her, and threatening to kill her with a cap gun. Twenty days after Ancona’s murder, Phillips was arrested for sexually assaulting and attempting to strangle a seven-year-old girl. He was found guilty of child molestation. Phillips was thirty-six years old, a full-blooded Hopi, with long black hair, five feet eight inches tall, and heavy-set, weighing 185 pounds—physical characteristics consistent with the descriptions given by sidewalk-cleaner Henson and the man who dropped a note on the sidewalk on the morning following the murder.12
Not only did Phillips’ DNA profile match. His hair matched; his shoe size matched the Converse shoeprints; and his fingerprints matched unidentified crime scene prints from the condom machine, the water faucet and the inside door knob of the men’s room. Phillips fingerprints were already on record with the Phoenix Police Department when Kim Ancona was killed.13
Prior to Ray’s second trial, his stepdad Jim Leming found himself out of work for seven months when his company downsized. Leming had devoted his every waking moment to reading trial transcripts and police reports, hoping to find the clue to Ray’s innocence. “I said from the beginning, fingerprints are going to solve this,” Jim Leming recalls, “I kept insisting, check the fingerprints.” It was never done, not by the police, and none of Ray’s attorneys had asked to have the crime scene prints checked against police files, until now.14
5) The information appearing in this section was compiled from the following sources: Krone interview; Lemings, correspondence, 1 February 1997 and 22 October 2001.
6) The information appearing in this section was compiled from the following sources: Krone interview; Lemings, correspondence, 15 December 2000.
7) The information in this section was compiled from the following sources: Krone interview, Lemings, correspondence, 1 February 1997 and 22 October 2001; Nelson; Public Access to Court Information, Arizona Supreme Court, Case No. S-0700-CR-1992000212 (retrieved 4 September 2006, http://www.supreme.state.az.us/publicaccess/notification/casedetail).
8) “DNA TESTS (Ray Krone Trial)”; Kurtis, 99; Henry Weinstein, “Death Penalty Foes Mark a Milestone,” Los Angeles Times, 10 April 2002.
11) Beth DeFalco, “DNA GOOD NEWS FOR CONVICT CONVICTED TWICE IN SLAYING,” The Arizona Republic, 23 March 2002; “Man Convicted on Erroneous Bite Mark Evidence Finally Free”; Lemings interview.
12) Lemings interview; Beth DeFalco, “DNA MAY FREE 1ST ARIZONAN INMATE CONVICTED TWICE IN MURDER,” The Arizona Republic, 5 April 2002; Tim Schellberg and Smith Alling Lane, “DNA DATABASE EXPANSION IN THE 2001 UNITED STATES” (retrieved 8 August 2006, http://www.dnaresource.com/Muenster.ppt); Kenneth Phillips, Inmate Detail, Arizona Department of Corrections(retrieved 7 June 2006, http://www.azcorrections.gov/cgi-bin/IDetail.cgi/O045581060604).
This is Page 5. Page: 1, 2, 3, 4, 6, of the Ray Krone Story.....