U.S. judge backs new trial for Rosa Jimenez in child choking death


Highlights

Federal magistrate says Rosa Jimenez did not receive a fair trial in 2005.

U.S. District Judge Lee Yeakel will decide whether to accept the recommendation and order a new trial.

A federal judge is recommending a new trial for Rosa Jimenez, who was convicted in 2005 of killing a 1-year-old boy she was baby-sitting by stuffing paper towels down his throat in her North Austin apartment.

U.S. Magistrate Judge Andrew Austin said Jimenez, who is serving a 99-year prison sentence, did not receive a fair trial because her 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 and not caused by Jimenez.

The trial court also failed to provide Jimenez with enough money to hire adequate expert witnesses, leaving her with one defense expert who was unqualified, unprepared, easily discredited by prosecutors and wholly ineffective, Austin wrote.

“The lack of at least one appropriately qualified expert unquestionably denied Jimenez an effective defense” to the prosecution’s central claim — that it would have been impossible for the child to have accidentally swallowed the paper towels, Austin wrote.

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Austin’s recommendation on Jimenez’s appeal next goes to U.S. District Judge Lee Yeakel, who will decide whether to overturn her conviction and order a new trial.

Prosecutors and defense lawyers have 14 days to file objections to Austin’s report, which was signed Monday and released by the court Tuesday.

The state attorney general’s office, which handled the appeal for prosecutors, declined to comment on the magistrate’s report.

Now 35, Jimenez will not be eligible for parole until 2033.

Battle of experts

Jimenez was 19, seven months pregnant and still nursing her 1-year-old daughter when she was arrested after a paramedic removed a compacted wad of paper towels from deep within the boy’s throat in January 2003. Bryan sustained a serious brain injury due to oxygen deprivation and died three months later.

At her trial, prosecutors presented three doctors and a child-abuse specialist who testified that the young child could not have swallowed the five paper towel sections on his own.

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.

The new defense experts provided a crucial understanding of pediatric choking that was not available to jurors at Jimenez’s trial, Austin said, noting that there were no eyewitnesses, no prior acts of abuse by Jimenez, no signs of injury to Bryan’s face or Jimenez’s hands, and no DNA from Jimenez on the paper towels.

Instead, 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.

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“All of the other evidence the prosecution pointed to — the slightly disputed time line of the events, Jimenez’s allegedly inculpatory statement to (police), and the minor discrepancies in Jimenez’s statements of exactly how she discovered (Bryan) was choking — was not even close to enough evidence to allow a jury to find Jimenez guilty,” Austin wrote.

In his report, Austin also criticized the Texas Court of Criminal Appeals, which was presented with much of the same evidence in an earlier appeal but rejected Jimenez’s request for a new trial.

That ruling by the state’s highest criminal court, Austin wrote, was based on a “completely unreasonable” conclusion that the four new experts presented by defense lawyers would have made no difference at Jimenez’s trial because they would have given the same testimony as provided by Kanfer and rejected by jurors.

Austin said the four new experts have vastly superior experience and a deeper scientific background than Kanfer, who had “no relevant clinical experience whatsoever” and who supported his conclusions by conducting an impromptu experiment by saturating paper towels and stuffing them through a toilet paper tube.

“It is simply not plausible to conclude that a jury who heard the testimony of the experts presented (on appeal) would have returned the same verdict as a jury who only heard Dr. Kanfer,” he said.

Other judges agree

Austin is not the first judge to conclude that Jimenez deserves a new trial.

After a 2010 hearing featuring the new defense experts and four prosecution experts, then-state District Judge Charlie Baird told the Court of Criminal Appeals that he believed a new trial was needed in the interest of justice.

Baird concluded that the defense experts were more credible than the prosecution experts when testifying that it is possible for a child to swallow a large wad of paper towels, despite the gag reflex, and that the mass could have been pushed farther down the boy’s throat during frantic rescue attempts.

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The now-retired state district judge who presided over Jimenez’s trial, Jon Wisser, also joined the call for a new trial, saying there was a “substantial likelihood” that Jimenez was not guilty.

The Court of Criminal Appeals, however, unanimously rejected Baird’s recommendation, ruling in 2012 that the new information was not enough to legally establish Jimenez’s innocence or require a new trial.

In his report, Austin declined to rule on Jimenez’s innocence claim, saying it could not be acted upon at this point in her appeal.

But he noted that, if innocent, she was deprived of 15 years of freedom and the ability to raise her two children.

“If in fact Jimenez is not guilty of this offense — something both (Baird and Wisser) appear to believe and for which there is much evidence — the injustice done here is indeed profound,” Austin wrote.

One of Jimenez’s lawyers, Bryce Benjet with the Innocence Project in New York, praised Austin’s report but acknowledged the difficult nature of the case.

“As we have throughout these proceedings, we must recognize the terrible tragedy suffered by the child’s parents through his loss. But Ms. Jimenez’s wrongful conviction has simply added to this catastrophe,” he said.



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