As Travis County’s district attorney considers whether to retry a woman after her murder conviction was tossed out, five Austin legislators have written the DA a letter, pointing out that the woman’s continued incarceration is “a likely death sentence.”
Rosa Jimenez was 19 when she was babysitting a 1-year-old who choked and then died three months later. Travis County prosecutors said Jimenez stuffed paper towels down the child’s throat and a jury convicted her of murder.
She was sentenced to 99 years in prison in 2005, but defense lawyers have since mounted an aggressive challenge based on medical experts who concluded that the child most likely put the mass of paper towels in his own mouth.
U.S. District Judge Lee Yeakel in October ordered that Jimenez, now 37, be given a new trial or be released from custody. The DA’s office requested and received more time to look at the evidence and make a decision. Yeakel’s order is on appeal, and the 5th U.S. Circuit Court of Appeals will review it.
Yeakel initially ordered that Jimenez be given a new trial by Feb. 25, but the 5th Circuit Court halted the effect of that ruling while the appeal continues. There currently is no deadline.
Jimenez was diagnosed in 2017 with Stage 4 chronic kidney disease and will likely require dialysis or a kidney transplant soon to remain alive. However, her lawyers say she is unable to register on a transplant list while she is incarcerated, which is why state lawmakers said her incarceration is effectively a death sentence.
Jimenez was in the United States illegally when she was arrested and faces deportation to Mexico if freed. Prosecutors presented no evidence that federal immigration officials could or would attempt to take custody of Jimenez while she faces a murder charge, a U.S. magistrate judge has previously said.
However, in court last month, Jimenez’s defense lawyer Sara Brown said Jimenez, if given the chance, would return to her former home in Mexico City, where she has a support network that includes her mother and where she can be treated for kidney disease.
Democratic state Reps. Donna Howard, Celia Israel, Gina Hinojosa, Sheryl Cole and Vikki Goodwin signed the letter, which they sent to Travis County District Attorney Margaret Moore this month.
The letter does not ask Moore to free Jimenez. However, the lawmakers say Jimenez is “likely innocent” and argued that “there are extenuating circumstances to Ms. Jimenez’s health that would effectively render her continued incarceration a likely death sentence. Rosa’s health is rapidly deteriorating, and her prompt release will allow her to obtain medical care.”
Additionally, about 3,500 people have signed a petition, calling on Moore to release Jimenez.
Moore wrote a letter in response, stating that she wants justice to be done and pushing back on the assumption that Jimenez was likely innocent.
“Ultimately, there is one issue to be determined,” Moore wrote. “How did a large mass of blood-soaked paper towels, which measured about 3 inches long and 3 inches wide, get lodged so far down a 21-month-old’s throat that it could not be seen at first by police and paramedics and could only be extracted with difficulty using forceps? … Either Ms. Jimenez forced it down his throat, or the child did it to himself. The reason for the granting of a new trial hinges upon the development of additional defense expert opinions, not new evidence. I am aware of no evidence suggesting actual innocence, nor has any court ruled that she is actually innocent.”
Yeakel’s October order adopted, in its entirety, a report submitted last year by Magistrate Judge Andrew Austin, who determined that Jimenez did not receive a fair trial. Jimenez’s trial lawyer failed to properly seek money from the court for pediatric experts who could have testified that Bryan Gutierrez’s death was likely an accident, Austin wrote.
At her trial, prosecutors presented three doctors and a child-abuse specialist who testified that the child could not have swallowed the five paper towel sections on his own.
Jimenez’s trial defense had been anchored by Dr. Ira Kanfer, a medical examiner from Connecticut who testified that the child could have swallowed the paper towels on his own — but who also admitted that he was not specifically qualified to assess pediatric choking or child abuse and did not review all the records in the case, Austin said.
On appeal, defense lawyers, who are representing Jimenez for free, presented testimony from three pediatric airway experts and a forensic pathologist who reviewed records and concluded the child probably swallowed the mass on his own. The experts also criticized prosecution witnesses who testified at Jimenez’s trial, saying they exhibited a basic misunderstanding of children’s airways and the physiology of choking.
Local criminal justice reform group Just Liberty has been advocating for Jimenez’s release. Kathy Mitchell, Just Liberty’s policy coordinator, recently screened a Mexican documentary about the case in Austin.
“There’s broad consensus that, two decades ago, our science as applied to criminal justice was not science,” Mitchell said. “The thing I’ve found most frustrating is that prosecutors in general have been willing to acknowledge that broader truth, but in any particular case they want to protect that case. There have been a handful of prosecutors who have done something different, but not many. Protecting the old case seems to be the most important thing.”
Moore said she has appointed an experienced team to determine whether the case should be retried. She also has asked her office’s conviction integrity unit to review the case.
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