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: "After state appeals courts upheld Jimenez’s conviction in the 2003 death of 21-month-old Bryan Guttierez, defense lawyers with the New York-based Innocence Project turned to the federal courts, arguing that she was innocent. To support their claims, defense lawyers presented testimony from leading pediatric airway experts and a forensic pathologist who concluded the child probably swallowed, on his own, the compacted mass of paper towels that was removed from his throat and led to his death. Last October, Yeakel tossed out Jimenez’s convictions and ordered her to be retried or released by Feb. 25, ruling that she did not receive a fair trial because she was denied proper expert witnesses, leaving only one trial expert who was unqualified and unprepared. Paxton turned to the 5th U.S. Circuit Court of Appeals, which blocked enforcement of Yeakel’s order while a three-judge panel considers Paxton’s appeal. In the meantime, Moore, Travis County’s top prosecutor, had her lawyers review the case and the new expert testimony. Those lawyers concluded that Jimenez was denied a fair opportunity to adequately defend herself at trial. “In their view, justice would be served by agreeing to a retrial of the case. I agree with their assessment,” Moore told Jimenez’s lawyers by letter."
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PASSAGE TWO OF THE DAY: "Moore did not respond Monday to Paxton’s decision to continue with the appeal. But Jimenez’s lawyers filed a legal brief Monday arguing that Paxton’s office, by preventing Moore “from achieving a just resolution of this case” with a new trial, is interfering with the state’s criminal justice system. Monday’s filing urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease." Paxton has asked Yeakel to deny bond for Jimenez.
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STORY: "Paxton declines to drop appeal blocking new trial for Austin babysitter," by Reporter Chuck Lindell, published by The Statesman on May 4, 2020.
GIST: "Rejecting the wishes of Travis County prosecutors, Texas Attorney General Ken Paxton will not step aside to allow a new trial for Rosa Jimenez, the Austin babysitter serving 99 years for the death of a toddler in her care. Last week, Travis County District Attorney Margaret Moore announced that, in the interest of fairness and justice, she supported giving Jimenez a new trial so jurors can hear new, pertinent evidence. The sticking point, Moore told defense lawyers, was that Jimenez’s fate was in Paxton’s hands because the attorney general’s office is leading an appeal in her case, and there could be no trial while that federal appeal is pending. Paxton revealed his answer over the weekend when he told U.S. District Judge Lee Yeakel that his lawyers will not drop the appeal, adding that there was nothing Moore could do about it. “The ... appeal is not the County’s business,” Paxton told Yeakel in a Saturday court filing. Moore does not currently have the authority to enter into an agreement with Jimenez for a new trial, “nor does Travis County’s conclusion that Jimenez should receive a new trial moot this case,” Paxton wrote. The discretion to prosecute or not is one of the paramount responsibilities given to county prosecutors, with Paxton’s office available to help if requested by local prosecutors. But Paxton’s office is in charge when inmates turn to the federal courts to overturn a conviction, which is where Jimenez’s case currently stands. After state appeals courts upheld Jimenez’s conviction in the 2003 death of 21-month-old Bryan Guttierez, defense lawyers with the New York-based Innocence Project turned to the federal courts, arguing that she was innocent. To support their claims, defense lawyers presented testimony from leading pediatric airway experts and a forensic pathologist who concluded the child probably swallowed, on his own, the compacted mass of paper towels that was removed from his throat and led to his death. Last October, Yeakel tossed out Jimenez’s convictions and ordered her to be retried or released by Feb. 25, ruling that she did not receive a fair trial because she was denied proper expert witnesses, leaving only one trial expert who was unqualified and unprepared. Paxton turned to the 5th U.S. Circuit Court of Appeals, which blocked enforcement of Yeakel’s order while a three-judge panel considers Paxton’s appeal. In the meantime, Moore, Travis County’s top prosecutor, had her lawyers review the case and the new expert testimony. Those lawyers concluded that Jimenez was denied a fair opportunity to adequately defend herself at trial. “In their view, justice would be served by agreeing to a retrial of the case. I agree with their assessment,” Moore told Jimenez’s lawyers by letter. Moore added that she was confident Paxton’s office “has heard and respects the conclusion we have reached” about a new trial, but she also acknowledged that “the matter is now in their hands.” Moore did not respond Monday to Paxton’s decision to continue with the appeal. But Jimenez’s lawyers filed a legal brief Monday arguing that Paxton’s office, by preventing Moore “from achieving a just resolution of this case” with a new trial, is interfering with the state’s criminal justice system. Monday’s filing urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease."
Paxton has asked Yeakel to deny bond for Jimenez.
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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