Rosa Jimenez Is Exonerated of a Crime That Never Took Place After 20 Years

(Aug. 7, 2023 — Austin, TX) Rosa Jimenez was exonerated today after the Travis County District Attorney moved to dismiss a 2003 murder charge against her, based on testimony from leading pediatric airway experts that affirmed the death at the center of the case was a tragic accident and not murder. 

Ms. Jimenez, who has always maintained her innocence, was convicted of murder after a 21-month-old child she was babysitting choked on paper towels and suffered a severe brain injury due to oxygen deprivation. He passed away three months later.

Prior to today’s dismissal, Ms. Jimenez was released from prison in 2021 after Judge Karen Sage of the 299th Criminal District Court in Austin, Texas recommended that Ms. Jimenez’s habeas petition be granted, finding that, “There was no crime committed here … Ms. Jimenez is innocent.” The decision came after the Travis County District Attorney’s Office conducted an in-depth review of the evidence through its trial division, special victims unit, and conviction integrity unit. The evidence included reports and testimony of numerous pediatric airway experts who unanimously concluded that the choking incident was the result of a tragic accident. At Ms. Jimenez’s original trial, the State presented faulty testimony stating it would have been physically impossible for the child to have accidentally choked. In May 2023, the Texas Court of Criminal Appeals overturned her 2005 conviction, ruling that the State had used false and misleading testimony to obtain her conviction. Support for Ms. Jimenez’s innocence has been widespread, particularly among Travis County state legislators. Over the years, four Texas judges who have reviewed her case in federal and state courts have all concluded that Ms. Jimenez is likely innocent and the child’s death was an accident.

“Rosa was the mom to a one-year-old girl and seven months pregnant when this ordeal began. She was forced to give birth to her son in jail, shackled, while awaiting trial. For the past 20 years, she has fought for this day, her freedom, and to be reunited with her children.” said Vanessa Potkin, director of special litigation and Ms. Jimenez’s attorney. “Her wrongful conviction was not grounded in medical science, but faulty medical assumptions that turned a tragedy into a crime — with her own attorney doing virtually nothing to defend her. I wish we could say that what happened to Rosa was an isolated occurrence, but we have a real, pervasive problem in our country when it comes to how the criminal legal system treats the caregivers of children who are hurt or die. There are hundreds, if not thousands, of innocent caregivers and parents in prison today based on faulty, unscientific medical testimony misclassifying accidents or illness as abuse.”   

A decade into her incarceration at 33 years old, Ms. Jimenez was diagnosed with kidney disease, which progressed to end-stage during her wrongful incarceration. Months after her release in 2021, she began dialysis and is now in need of a life-saving kidney transplant. “Just when Rosa can finally close the chapter on her 20-year fight to prove her innocence, she has to take on a new battle — the fight for her life,”  Ms. Potkin said. Ms. Jimenez is being evaluated by Weill Cornell hospital for a kidney transplant and is hoping to find a living donor. 

Ms. Jimenez’s case has garnered attention from local and national leaders, including San Antonio Spurs Head Coach Gregg Popovich. “I’ve been following Rosa’s case since she was released two years ago and moved to San Antonio,” Coach Popovich said. “It’s heartbreaking — a tragic miscarriage of justice. DA Garza and his team deserve great credit for helping the Innocence Project establish Rosa’s innocence with new scientific evidence. Rosa is just 41, endured nearly 20 years wrongly incarcerated, and desperately needs a live donor so she can get a kidney transplant. Please check out the micro site Weill Cornell Medical Center in New York has established for kidney donors Kidney4Rosa.com. Help save her life.”

Rosa Jimenez holding her daughter Brenda. (Image: Courtesy of Rosa Jimenez)

A Crime That Never Occurred

In January 2003, Ms. Jimenez was caring for her 1-year-old daughter Brenda and the 21-month-old year-old boy, whom she regularly babysat, when the toddler approached her choking. She immediately tried to remove the blockage, but, when she was unable to do so, she rushed to a neighbor’s house for help and they called 911. The child was resuscitated by paramedics, but the lack of oxygen resulted in severe brain damage, and he died three months later. 

After the accident, Ms. Jimenez, who was pregnant with her second child and did not speak much English, was questioned for over five hours by an allegedly bilingual police officer whom Ms. Jimenez described as barely able to speak Spanish. While trained interpreters are provided at trials, an interpreter is not constitutionally guaranteed during a law enforcement interrogation. Although Ms. Jimenez had difficulty understanding the officers, she consistently maintained her innocence and repeatedly explained that the child had accidentally choked. Ms. Jimenez, who regularly cared for children in her community, had no criminal record, and there was no history or evidence of abuse in the child’s death. Despite this, she was arrested and charged later that night. Ms. Jimenez’s situation is not uncommon among wrongly convicted women. According to the National Registry of Exonerations, 40% of female exoneres were wrongly convicted of harming children or other loved ones in their care.

The Danger of Faulty Medical Evidence

At trial, the State relied on faulty medical testimony contending that it was impossible for the toddler to have accidentally choked on the paper towels, which he’d put in his own mouth, and that Ms. Jimenez must have forced them into his mouth. Ms. Jimenez’s appointed attorney never presented any credible expert witnesses to rebut the State’s faulty claims, and she was convicted and sentenced to 99 years in prison.

After the Innocence Project took on Ms. Jimenez as a client, her lawyers sought out top medical airway experts to evaluate the case evidence. Four top pediatric airways specialists from Cincinnati Children’s Hospital Medical Center, University of Texas Southwestern Medical Center and Children’s Medical Center, Children’s Hospital of Philadelphia, and Stanford University Lucile Salter Packard Children’s Hospital independently reviewed the case and issued a consensus report concluding that all the medical evidence indicated that the child accidentally choked, and that Ms. Jimenez had been wrongly convicted of a crime that never occurred.

Nearly 71% of female exonerees were convicted of crimes that never took place. As with Ms. Jimenez, such “crimes” include incidents later determined to be accidents according to the National Registry of Exonerations.

A Woefully Inadequate Defense

At her 2005 trial, Ms. Jimenez’s court-appointed attorney failed to present a meaningful defense in response to the State’s unfounded medical testimony. The principal issue addressed at trial was whether this was an accidental choking. Ms. Jimenez’s trial counsel failed to present qualified experts to counter the State’s false testimony that it was impossible for this to have been an accident. 

Ms. Jimenez’s attorney called only one expert who was fully discredited on cross-examination, who went on an explosive and harmful rant, and, at one point, yelled expletives at the prosecution. A state court habeas judge in 2010 who first recommended that Ms. Jimenez receive a new trial noted that in his “30 years as a licensed attorney, [and] 20 years in the judiciary, [he had] never seen such unprofessional and biased conduct from any witness, much less a purported expert,” adding that the expert had left Ms. Jimenez’s case in greater jeopardy than before he testified.  

In September 2018, a federal district court also ruled that Ms. Jimenez’s conviction should be vacated because she was denied her constitutional right to effective assistance of counsel.  That ruling was under appeal by the Texas Attorney General’s office, and, at that time, the Travis County District Attorney’s Office initiated a review of the new medical evidence.  

“As prosecutors, we have an obligation to ensure the integrity of convictions and to seek justice,“ said Travis County District Attorney José Garza. “In the case against Rosa Jimenez, it is clear that false medical testimony was used to obtain her conviction, and without that testimony under the law, she would not have been convicted. Dismissing Ms. Jimenez’s case is the right thing to do.”Our hearts also continue to break for the Gutierrez family. In this case, our criminal justice system failed them, and it also failed Rosa Jimenez.  Our hope is that by our actions today, by exposing the truth that Ms. Jimenez did not commit the crime for which she was accused, we can give some sense of closure and peace to both families.”

Rosa’s granddaughter Alexia born in Texas within minutes of her exoneration.

A Family Reunites 

Ms. Jimenez was seven months pregnant at the time of her arrest. She gave birth to her son Emmanuel in jail while awaiting trial. She held him for a total of five hours before he was taken from her and placed in foster care along with her daughter. During Ms. Jimenez’s incarceration, her children grew into young adults. Although they visited her over the years in prison, Ms. Jimenez was never allowed to hold or make physical contact with them because she had been convicted of harming a child. Upon her release in 2021, Ms. Jimenez reconnected with both Emmanuel (who now goes by Aiden) and Brenda, whose wedding Ms. Jimenez was able to attend shortly thereafter. She now looks forward to becoming a grandparent in August.

Ms. Jimenez now faces another fight: to find a kidney donor and receive a life saving transplant. “The past 20 years, I have been fighting for my freedom, my innocence, and my children. Now I have a second fight,” said Ms. Jimenez. ”I want to have a long, healthy life with my family, who I waited so long to be with again. I want to see my grandchildren grow up. I have come so far, and I will keep fighting for as long as it takes.”Ms. Jimenez is represented by Vanessa Potkin at the Innocence Project; current and former Foley & Lardner LLP trial lawyers Rachel O’Neil, Sara Brown, Sadie Butler, and Joanne Early and Kirkland & Ellis LLP.