PASSAGE OF THE DAY: "A new trial was recommended by members of Moore’s trial division, special victims unit and conviction integrity unit who reviewed new evidence presented by defense lawyers and concluded that Jimenez did not have an adequate opportunity at her 2005 trial to present a theory that the boy’s death by choking was accidental. “It was a consensus among my attorneys that the newly developed potential testimony could be credible to a jury,” Moore wrote in a letter sent Monday to Jimenez’s lawyers."
PASSAGE TWO OF THE DAY: "In her letter, Moore said her lawyers have not made a recommendation on whether Jimenez should be released on bond, saying the matter is in Yeakel’s hands and includes details developed by other attorneys But in a reply brief filed Monday with Yeakel, Jimenez’s lawyers argued that Paxton’s opposition to bond was “unconscionable.” “Ms. Jimenez seeks release so that her life and heath are preserved pending the resolution — and what should be imminent dismissal — of the State’s appeal,” they wrote."
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STORY: "DA supports new trial for Austin babysitter in 2003 death, by Reporter Chuck Lindell, published by The Statesman on April 27, 2020.
GIST: "Ending months of speculation, Travis County’s top prosecutor has agreed to give a new trial to Rosa Jimenez, the Austin babysitter who has served 17 years of a 99-year prison sentence for the death of a toddler in her care.
Whether that trial happens, however, depends on factors outside of the control of local officials, District Attorney Margaret Moore said.
A new trial was recommended by members of Moore’s trial division, special victims unit and conviction integrity unit who reviewed new evidence presented by defense lawyers and concluded that Jimenez did not have an adequate opportunity at her 2005 trial to present a theory that the boy’s death by choking was accidental.
“It was a consensus among my attorneys that the newly developed potential testimony could be credible to a jury,” Moore wrote in a letter sent Monday to Jimenez’s lawyers.
Moore, however, stopped well short of endorsing claims by defense lawyers that charges should be dropped because Jimenez is innocent.
“The reviewing attorneys ... recommended that the DA’s Office prepare to try the case again because there is sufficient factual evidence upon which a reasonable juror could vote to convict,” she wrote.
Moore also said a trial depends on whether Texas Attorney General Ken Paxton drops an appeal of a federal judge’s ruling that tossed out Jimenez’s conviction last year.
“I am confident that the (office of the attorney general) has heard and respects the conclusion we have reached” about giving Jimenez a new trial, Moore wrote. “The matter is now in their hands.”
Paxton’s office declined to discuss Jimenez’s case, saying Tuesday that “we cannot speculate or comment on future litigation.”
Paxton’s office, not local prosecutors, handles federal court challenges to convictions, and in a Jan. 14 hearing on the Jimenez case, a Paxton lawyer indicated that state prosecutors retained the right to continue the appeal regardless of Moore’s decisions.
Vanessa Potkin, a lawyer for Jimenez, said that if Paxton’s office declined to dismiss the appeal, “it will now be fighting to uphold a conviction in a case where the prosecuting agency, the Travis County district attorney’s office, has said ... that the defendant did not receive a fair trial.”
Conviction tossed:
Jimenez, now 37, was 19 when she called emergency crews to her North Austin apartment in 2003 after 21-month-old Bryan Gutierrez began clutching his throat and choking.
A compacted wad of paper towels was removed from deep within the boy’s throat, and he died three months later after sustaining a serious brain injury due to oxygen deprivation.
Jimenez, who said the child had been playing with a roll of paper towels, was found guilty of murder and injury to a child in a trial that focused on only two possible scenarios: Either she forced the paper towels down the boy’s throat, or the child did it himself. Jurors believed prosecution experts who testified that it would have been impossible for Bryan to have swallowed the mass on his own.
But last October, U.S. District Judge Lee Yeakel tossed out Jimenez’s convictions, ruling that she did not receive a fair trial because her lawyer failed to seek money from the court for pediatric experts who could have testified that the child’s death was likely an accident.
In addition, Yeakel ruled, the trial court failed to provide Jimenez with enough money to hire expert witnesses, denying her the ability to present an adequate defense and leaving her with only one trial expert who was unqualified, unprepared and easily discredited.
Challenging Jimenez’s conviction, defense lawyers presented three pediatric airway experts and a forensic pathologist who concluded the child probably swallowed the mass on his own. The new defense experts provided a crucial understanding of pediatric choking that Jimenez’s jurors did not have but should have heard, Yeakel said.
The judge gave prosecutors until Feb. 25 to give Jimenez a new trial or release her from prison.
Lawyers for Paxton appealed, and the 5th U.S. Circuit Court of Appeals blocked the deadline to allow time to consider the case. That appeal is ongoing.
Emergency request:
Last week, Jimenez’s lawyers filed an emergency motion asking Yeakel to let her leave prison while the case proceeds, arguing that Jimenez has a heightened risk of death because stage 4 chronic kidney disease has compromised her immune system.
If a personal recognizance bond is granted, the Innocence Project has secured an Austin home where Jimenez can shelter while the pandemic continues, they said.
Paxton’s lawyers opposed the move, telling the judge in a brief filed Friday that prison officials have taken “extensive steps to safeguard the health” of at-risk inmates and that Jimenez, a Mexican citizen who was in the country illegally when she was arrested, is a flight risk. They also argued that Yeakel could not free Jimenez because he lost control of the case once it was accepted by the 5th Circuit Court.
In her letter, Moore said her lawyers have not made a recommendation on whether Jimenez should be released on bond, saying the matter is in Yeakel’s hands and includes details developed by other attorneys.
But in a reply brief filed Monday with Yeakel, Jimenez’s lawyers argued that Paxton’s opposition to bond was “unconscionable.”
“Ms. Jimenez seeks release so that her life and heath are preserved pending the resolution — and what should be imminent dismissal — of the State’s appeal,” they wrote."
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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