BACKGROUND: "United States District Judge Lee Yeakel has overturned the murder conviction of Estela Rosa Jimenez and ordered a new trial based on Jimenez being denied her constitutional right to present qualified medical experts at her trial in August 2005. The decision is grounded on the earlier recommendation of United States Magistrate Judge Andrew Austin issued in September 2018. It has been almost 15 years since Jimenez was convicted of murder for the death of a 21-month-old child in her care. Jimenez has always maintained her innocence and stated the child’s death was a tragic accident and not murder. Lawyer Bryce Benjet: “Rosa Jimenez was convicted based only on the scientifically invalid medical theory that was physically impossible for an infant to have choked on a wad of paper towel. There were no signs of abuse, Ms. Jimenez immediately tried to resuscitate Bryan Gutierrez and called for help. As any parent knows, the state’s theory made no sense. We have since presented leading experts in pediatric choking who described similar incidents of accidental choking and confirmed that nothing about this case suggested foul play. Unfortunately, Ms. Jimenez’s appointed defense counsel failed to hire a competent medical expert and the jury made its decision based on invalid science. Judge Yeakel’s decision today granting a new trial confirms the findings of both the trial judge and the state habeas judge that there is a reasonable likelihood Ms. Jimenez was wrongfully convicted. There is simply no evidence that this little boy’s death was anything but a tragic accident. Ms. Jimenez and her family have likewise suffered immeasurably. Her children have grown up without their mother, and Ms. Jimenez’s health has deteriorated while she spent almost half of her life imprisoned for a murder that never even happened."
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PASSAGE OF THE DAY: The motion also cites four pediatric doctors who question the evidence used to convict Jimenez in 2005. They concluded that a bloody mass of paper towels extracted from 1-year-old Bryan Gutierrez’s throat were likely consumed accidentally by the boy and not, as trial experts theorized, forced there by Jimenez, his babysitter. Jimenez, 19 at the time, told responding officers that the boy walked into the kitchen at her home clutching his throat and choking after playing with a roll of paper towels earlier in the day. After failed attempts to clear the boy’s airway, Jimenez said she rushed him to a neighbor’s house, where she could call emergency services. The boy died three months later. Lawyers with the New York-based Innocence Project, who are handling Jimenez’s appeal, are requesting a personal recognizance bond that would release Jimenez pending the resolution of the appeal — a move that many defense attorneys are now employing during the pandemic for clients with underlying health conditions. Jimenez, now 37, was diagnosed with the kidney disease in 2017."
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PASSAGE OF THE DAY: The motion also cites four pediatric doctors who question the evidence used to convict Jimenez in 2005. They concluded that a bloody mass of paper towels extracted from 1-year-old Bryan Gutierrez’s throat were likely consumed accidentally by the boy and not, as trial experts theorized, forced there by Jimenez, his babysitter. Jimenez, 19 at the time, told responding officers that the boy walked into the kitchen at her home clutching his throat and choking after playing with a roll of paper towels earlier in the day. After failed attempts to clear the boy’s airway, Jimenez said she rushed him to a neighbor’s house, where she could call emergency services. The boy died three months later. Lawyers with the New York-based Innocence Project, who are handling Jimenez’s appeal, are requesting a personal recognizance bond that would release Jimenez pending the resolution of the appeal — a move that many defense attorneys are now employing during the pandemic for clients with underlying health conditions. Jimenez, now 37, was diagnosed with the kidney disease in 2017."
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STORY: "Babysitter's convictions questioned; Lawyers seek her release amid coronavirus threat," by reporter Ryan Autullo, published by The Statesman on April 22, 2020.
GIST: "As they await their next move in a fight to overturn a babysitter’s conviction in a toddler’s choking death, lawyers for the sitter are focused on getting her out of prison, fearing she’ll contract the coronavirus while locked up.
An emergency motion for release filed last week in federal court states that the health of Rosa Jimenez — an undocumented Mexican national serving 99 years for a crime four judges now believe she may not have committed — is at a heightened risk because she is immunocompromised with stage 4 chronic kidney disease.
The motion also cites four pediatric doctors who question the evidence used to convict Jimenez in 2005. They concluded that a bloody mass of paper towels extracted from 1-year-old Bryan Gutierrez’s throat were likely consumed accidentally by the boy and not, as trial experts theorized, forced there by Jimenez, his babysitter.
Jimenez, 19 at the time, told responding officers that the boy walked into the kitchen at her home clutching his throat and choking after playing with a roll of paper towels earlier in the day. After failed attempts to clear the boy’s airway, Jimenez said she rushed him to a neighbor’s house, where she could call emergency services. The boy died three months later.
Lawyers with the New York-based Innocence Project, who are handling Jimenez’s appeal, are requesting a personal recognizance bond that would release Jimenez pending the resolution of the appeal — a move that many defense attorneys are now employing during the pandemic for clients with underlying health conditions. Jimenez, now 37, was diagnosed with the kidney disease in 2017.
As of Tuesday, 557 inmates in Texas state prisons had tested positive for COVID-19, the disease linked to the coronavirus. Three died.
The Mountain View Unit in Gatesville where Jimenez is staying had zero positive tests, but just down the road, the Lane Murray Unit reported 37 positive tests.
Jimenez’s attorney, Vanessa Potkin, solicited a medical opinion from Dallas nephrologist Dr. Bruce Wall, who suggested Jimenez is 60% more likely to contract viral illnesses, pneumonia, and bladder infections, and will likely be similarly susceptible to COVID-19."
Jimenez’s attorney, Vanessa Potkin, solicited a medical opinion from Dallas nephrologist Dr. Bruce Wall, who suggested Jimenez is 60% more likely to contract viral illnesses, pneumonia, and bladder infections, and will likely be similarly susceptible to COVID-19.
Jimenez’s attorney, Vanessa Potkin, solicited a medical opinion from Dallas nephrologist Dr. Bruce Wall, who suggested Jimenez is 60% more likely to contract viral illnesses, pneumonia, and bladder infections, and will likely be similarly susceptible to COVID-19.
Jimenez, according to the filing, can move into an apartment in Austin that the Innocence Project secured that will allow her to safely shelter in place if she’s released pending the resolution of her appeal.
The court’s decision will follow a response from prosecutors with Texas Attorney General Ken Paxton’s office, who are likely to oppose Jimenez’s release. Friday is the deadline for that response.
The underlying appeal is on hold while the 5th U.S. Circuit Court of Appeals reviews a directive that U.S. District Court Judge Lee Yeakel made to prosecutors last fall to either retry the case or release Jimenez from custody.
Yeakel is among four judges who have expressed a belief that Jimenez might be innocent. Their rationale, more or less, is that a medical examiner who testified for the defense lacked the necessary expertise to refute testimony from his counterpart for the prosecution who said it would have been “impossible” for the boy to have digested the towels accidentally.
Yeakel is among four judges who have expressed a belief that Jimenez might be innocent. Their rationale, more or less, is that a medical examiner who testified for the defense lacked the necessary expertise to refute testimony from his counterpart for the prosecution who said it would have been “impossible” for the boy to have digested the towels accidentally.
Four pediatric doctors cited in last week’s filing concluded, “the medical evidence makes it far more likely than not that this was an accidental ingestion. This is a tragic outcome, but an outcome stemming from an accident, not a malicious act on the part of Rosa Estela Jimenez.”
Their findings were presented to Travis County District Attorney Margaret Moore and a team of her prosecutors during a virtual conference with Jimenez’s lawyers on March 31, the motion stated.
Moore, whose office is working with the attorney general’s office to review the case, is under political pressure after five state representatives from the Austin area wrote a letter in February requesting that Moore take a good look at the evidence used to convict Jimenez.
Though stopping short of demanding Jimenez’s release from prison, state Reps. Donna Howard, Celia Israel, Gina Hinojosa, Sheryl Cole and Vikki Goodwin expressed concern that Jimenez is innocent and might not live much longer because of her kidney problems.
“There may indeed be some legal technicalities of which we are we are not fully appraised, but instances like this challenge us all to do what is humane,” they wrote.
Moore, in a responding letter, told the lawmakers that the case is “receiving our careful and most compassionate attention.”
Moore did not return a message for comment Wednesday about Jimenez’s request for release.
The entire story can be read at:
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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