PASSAGE OF THE DAY: "At the state-habeas level, the district court had recommended approving the habeas petition, in part because of the evidence but also because of ineffective assistance of counsel. The latter was alleged because the defense did not put on expert witnesses to counter the team of expert testifiers put on by the state. But her attorney responded that that was because the judge wouldn't approve funds. In an affidavit submitted to the court, he wrote:
During my pre-trial preparations, I met with Judge [Jon Wisser] to ask for additional funds to retain experts such as Dr. McGeorge and a biomechanical expert. I explained to the judge why we needed these experts, and that I did not think that my current team was adequate to counter the State’s case. Judge [Wisser] told me that he had authorized more experts than usual in a noncapital case, and that he would not pay for any more expert assistance regardless of my need. Based on the judge’s ruling, I was forced to work within the constraints imposed by the Court. Ms. Jimenez was indigent, and I could not afford to hire these experts out of pocket.
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POST: "Federal judge annoyed with Travis DA for recalcitrance on innocence case," published by Grits for Breakfast on January 22, 2020.
the judge turned to Travis County officials in his downtown Austin courtroom.
“Is it my understanding that (District Attorney) Margaret Moore is hot to retry this case? Really?” [magistrate Judge Andrew] Austin asked.
“We are prepared to retry the case and have informed the victim’s family of the potential of retrying the case,” said Beverly Mathews, director of the special victims unit in the Travis County district attorney’s office.
“Has she read the four different judge’s orders who said they think it’s likely that an innocent woman has been sitting in jail for 17 years?” Austin asked, adding that the now-retired judge who presided over Jimenez’s trial, Jon Wisser, also concluded that there was a substantial likelihood that Jimenez was not guilty.
“Margaret Moore really wants a retrial?” he asked again, shaking his head.
“It is my understanding that she is willing to retry this case,” Mathews replied.Grits was in the courtroom when this exchange occurred. Judge Austin was visibly surprised, bordering on amazed, that the Travis County DA wanted one last pound of flesh.
Such a trial would not expected to begin for at least a year, she added.
Soon after Lindell's story was published (KXAN was the only other media outlet there to cover it), a local criminal-justice reform advocate I know approached Moore about the case. She told him she planned to talk to the victim's family and there was more to the case than he knew.
My question: Is there more than the 4 judges knew, and if so, why didn't her office present that information in court? It's a 17-year-old case, what could they possibly be holding back?
Adding to Judge Austin's annoyance, an attorney for the AG's office (who represents the state in federal court) wanted to bicker with him about a technicality related to ICE holds. But Austin is a magistrate judge who hears immigration cases all the time. He is an in-the-weeds expert on the topic while the AG's lawyer admitted he had not investigated nor studied any of the processes on which he was opining. Finally, the judge gruffly told him to sit down and stop talking.
Judge Austin's order particularly singled out for disapprobation the Texas Court of Criminal Appeals, which had denied Jimenez's writ:
In doing so, it failed to recognize the extent of defense counsel’s errors and the significant reasons the jury’s verdict is not worthy of confidence. The Court of Criminal Appeals’ decision is both contrary to federal law and involved the unreasonable, if not outright incorrect, application of that law. Its decision was also based on several factual determinations that were plainly unreasonable in light of the record before the state court.This, my friends, is what's known as a bench slapping.
At the state-habeas level, the district court had recommended approving the habeas petition, in part because of the evidence but also because of ineffective assistance of counsel. The latter was alleged because the defense did not put on expert witnesses to counter the team of expert testifiers put on by the state. But her attorney responded that that was because the judge wouldn't approve funds. In an affidavit submitted to the court, he wrote:
During my pre-trial preparations, I met with Judge [Jon Wisser] to ask for additional funds to retain experts such as Dr. McGeorge and a biomechanical expert. I explained to the judge why we needed these experts, and that I did not think that my current team was adequate to counter the State’s case. Judge [Wisser] told me that he had authorized more experts than usual in a noncapital case, and that he would not pay for any more expert assistance regardless of my need. Based on the judge’s ruling, I was forced to work within the constraints imposed by the Court. Ms. Jimenez was indigent, and I could not afford to hire these experts out of pocket.So in this case, the defendant's inability to challenge what turned out to be flawed scientific testimony from the state was really an institutional failure of the indigent defense system, as much as a failure of forensics per se.
Grits mentions this because, although DA Margaret Moore will draw most of the attention on this case because she's the one choosing to keep Jimenez incarcerated, the Texas Court of Criminal Appeals, the trial court in Austin, and really the entire system is culpable for what happened here.
https://gritsforbreakfast.blogspot.com/2020/01/federal-judge-annoyed-with-travis-da.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.""
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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