News 10.28.20

A Judge Overturned Her Conviction on Her Last Birthday, But She’s Still in Prison a Year Later

On her 37th birthday, a judge overturned Rosa Jimenez's conviction. Today's her 38th birthday and she's still in prison.

By Daniele Selby

Rosa Jimenez at the Mountain View Prison Unit. (Image: Brandon Thibodeaux/The New York Times via Redux Pictures)

Rosa Jimenez has spent her last 17 birthdays wishing for the same thing: to go home. Last year, when United States District Judge Lee Yeakel overturned her murder conviction on her 37th birthday, it seemed like that wish might finally come true.

Judge Yeakel ordered that she be given a new trial or released within four months, based on the fact that she had been denied her constitutional right to adequate representation because the lawyer who represented her at trial failed to present qualified medical experts at her original trial in 2005.

But, today, Ms. Jimenez is spending yet another birthday behind bars as the Texas Attorney General’s office pursues an appeal of the judge’s decision.

For nearly 18 years now, Ms. Jimenez has been caught in the same cycle of hope and devastation.

In 2003, while Ms. Jimenez was preparing lunch for her 1-year-old daughter and Bryan Gutierrez, a toddler whom she regularly babysat, the boy began choking. Unbeknownst to her, he had swallowed paper towels that the kids had been playing with earlier that day. She rushed to his aid, but when that didn’t work, she ran to her neighbor for help. The child was taken to the hospital where he was resuscitated, but the lack of oxygen had caused brain damage and he died from complications a few months after.  

Ms. Jimenez, then seven months pregnant, was arrested the day the boy was admitted to the hospital. Because the paramedics and doctors who treated him had never seen a similar case, they jumped to the incorrect conclusion that Rosa had intentionally caused him to choke. She was first accused of abusing the child, and later of murder. About 40% of exonerated women were wrongly convicted of harming children or other loved ones in their care.

Ms. Jimenez, who had loved the boy like her own son, was devastated. Her pain deepened when her daughter, who she was still breast-feeding at the time, was taken from her the day she was arrested and placed into state custody. She was traumatized again when she gave birth to her son in jail while awaiting trial only to have him immediately taken from her.

Still, she clung to the hope that when she finally went to trial, the truth would become clear — that she was innocent and the toddler’s death had been a tragic accident. And she could go home.

“I was so hopeful at my trial. I thought — this is almost over. We’re going to trial, and they’re going to see the truth,” Ms. Jimenez said. “I thought, my lawyer will present all the evidence, the doctors, the police officers, and everybody’s going to know that I’m innocent.”

But that’s not what happened.

At Ms. Jimenez’s trial in 2005, medical professionals testified that the child could not have accidentally choked. They said she had to have forced the toddler to ingest the paper towels, although the child showed no signs of abuse. But none of the medical professionals who testified had specific training or experience with children’s airways. The sole expert called by the defense also did not have relevant experience with children’s airways, and even worse, had an emotional outburst at trial, during which hurled profanities at the prosecutors. The defense expert’s participation in Ms. Jimenez’s trial was so damaging, a judge remarked Rosa was worse off than if she had no expert at all.

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

Since her trial, pediatric airway experts have concluded that there is no evidence to suggest his death was anything other than an accident.

Four judges have now said that Ms. Jimenez is likely innocent. With each judge’s statement, her hope was renewed.

“But now, it’s been almost 18 years, and I’m still hoping for the same thing,” Ms. Jimenez said, speaking through tears from the Mountain View Unit, a women’s prison in Gatesville, Texas,  where she remains incarcerated.

At several points over the last year, her freedom seemed within reach. After Judge Yeakel overturned her conviction, the Travis County District Attorney’s office initially supported an appeal of his decision. But in March, the district attorney, Margaret Moore, assembled a team of lawyers in her office to conduct a conviction integrity review of Ms. Jimenez’s case. The lawyers considered a consensus report from a panel of pediatric airway experts from top U.S. children’s hospitals who concluded it would have been “nearly impossible” for Ms. Jimenez to have forced the child to swallow the paper towels, and that his death had been a tragic accident. By May, the district attorney’s review concluded that Ms. Jimenez had been denied the chance to adequately defend herself at her 2005 trial, leading D.A. Moore to support a retrial and dropping the appeal.

“I thought — this is almost over.”

But any optimism drawn from the district attorney’s support was fleeting as Ms. Jimenez and her legal team learned that, despite the district attorney’s position, Attorney General Ken Paxton would be pushing ahead with his appeal of the federal court ruling. The news meant that Ms. Jimenez would remain in prison, while a dangerous new virus, COVID-19, threatened the lives of people across the world.

Ms. Jimenez is at a significantly heightened risk of serious illness and death if she contracts the virus because she has Stage 4 kidney disease. A year ago, when her conviction was overturned, Ms. Jimenez knew that she would eventually need treatment for her condition and, ultimately, a kidney transplant, which would be nearly impossible while incarcerated. But even in these last months her health has deteriorated and now, in the midst of the pandemic, it has become necessary for her to begin dialysis treatment.

Locked down due to the pandemic, Ms. Jimenez reflected on her 18-year battle for justice.

“I can see my lawyers fighting really hard. I have read the letters from the judges and people that support me. But, despite the judges and experts, their education, everything they’ve done — giving me a new trial, saying I’m innocent — nothing has happened,” Ms. Jimenez said.

She put her thoughts down in a letter in which she urged people to support justice and equality, not only in her case but for all those affected by wrongful conviction and discrimination.

She ended with a quote from Dr. Martin Luther King, Jr., “The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.”

Despite the injustice she’s experienced, Ms. Jimenez said she still has hope. After learning about Ms. Jimenez’s case on the podcast “Unjust & Unsolved,” a stranger wrote to Ms. Jimenez saying she’d like to get tested to see if she is a kidney donor match. Though undergoing a kidney transplant in prison is unfeasible, Ms. Jimenez said, “It let me know that there are good people out there who really care.”

Knowing that, she has hope that this will be the year her birthday wish finally comes true.

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  1. Terri Davis says:

    I will continue to follow and support this much needed project.

  2. Christine Scherrer says:

    How ridiculous and unjust! Clearly the DA is also a pedtriac expert in choking. Wonder if the community that supports the DAs salary would agree with spending the amount of money it will cost to retry someone whose innocence is strongly supported by experts. Pride goeth before the fall…..unfortunately she is now a victim too. They need to appeal it at the state level and vote the malicious DA out of office.

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