Austin American-Statesman

Judge backs new trial for sitter in baby death

Rosa Jimenez of North Austin did not get a fair trial in ’05 case, he says.

- By Chuck Lindell clindell@statesman.com

A federal judge is recommendi­ng a new trial for Rosa Jimenez, who was convicted in 2005 of killing a 1-year-old boy she was baby-sitting by stuffing paper towels down his throat in her North Austin apartment.

U.S. Magistrate Judge Andrew Austin said Jimenez, who is serving a 99-year prison sentence, did not receive a fair trial because her lawyer failed to properly seek money from the court for pediatric experts who could have testified that Bryan Gutierrez’s death was likely an accident and not caused by Jimenez.

The trial court also failed to provide Jimenez with enough money to hire adequate expert witnesses, leaving her with one defense expert who was unquali-

fied, unprepared, easily discredite­d by prosecutor­s and wholly ineffectiv­e, Austin wrote.

“The lack of at least one appropriat­ely qualified expert unquestion­ably denied Jimenez an effective defense” to the prosecutio­n’s central claim — that it would have been impossible for the child to have accidental­ly swallowed the paper towels, Austin wrote.

Austin’s recommenda­tion on Jimenez’s appeal next goes to U.S. District Judge Lee Yeakel, who will decide whether to overturn her conviction and order a new trial.

Prosecutor­s and defense lawyers have 14 days to file objections to Austin’s report, which was signed Monday and released by the court Tuesday.

The state attorney general’s office, which handled the appeal for prosecutor­s, declined to comment on the magistrate’s report.

Now 35, Jimenez will not be eligible for parole until 2033.

Battle of experts

Jimenez was 19, seven months pregnant and still nursing her 1-year-old daughter when she was arrested after a paramedic removed a compacted wad of paper towels from deep within the boy’s throat in January 2003. Bryan sustained a serious brain injury due to oxygen deprivatio­n and died three months later.

At her trial, prosecutor­s presented three doctors and a child-abuse specialist who testified that the young child could not have swallowed the five paper towel sections on his own.

On appeal, defense lawyers, who are representi­ng Jimenez for free, presented testimony from three pediatric airway experts and a forensic pathologis­t who reviewed records and concluded the child probably swallowed the mass on his own.

The experts also criticized prosecutio­n witnesses who testified at Jimenez’s trial, saying they exhibited a basic misunderst­anding of children’s airways and the physiology of choking.

The new defense experts provided a crucial understand­ing of pediatric choking that was not available to jurors at Jimenez’s trial, Austin said, noting that there were no eyewitness­es, no prior acts of abuse by Jimenez, no signs of injury to Bryan’s face or Jimenez’s hands, and no DNA from Jimenez on the paper towels.

Instead, Jimenez’s trial defense had been anchored by Dr. Ira Kanfer, a medical examiner from Connecticu­t who testified that the child could have swallowed the paper towels on his own — but who also admitted that he was not specifical­ly qualified to assess pediatric choking or child abuse and did not review all the records in the case, Austin said.

“All of the other evidence the prosecutio­n pointed to — the slightly disputed time line of the events, Jimenez’s allegedly inculpator­y statement to (police), and the minor discrepanc­ies in Jimenez’s statements of exactly how she discovered (Bryan) was choking — was not even close to enough evidence to allow a jury to find Jimenez guilty,” Austin wrote.

In his report, Austin also criticized the Texas Court of Criminal Appeals, which was presented with much of the same evidence in an earlier appeal but rejected Jimenez’s request for a new trial.

That ruling by the state’s highest criminal court, Austin wrote, was based on a “completely unreasonab­le” conclusion that the four new experts presented by defense lawyers would have made no difference at Jimenez’s trial because they would have given the same testimony as provided by Kanfer and rejected by jurors.

Austin said the four new experts have vastly superior experience and a deeper scientific background than Kanfer, who had “no relevant clinical experience whatsoever” and who supported his conclusion­s by conducting an impromptu experiment by saturating paper towels and stuffing them through a toilet paper tube.

“It is simply not plausible to conclude that a jury who heard the testimony of the experts presented (on appeal) would have returned the same verdict as a jury who only heard Dr. Kanfer,” he said.

Other judges agree

Austin is not the first judge to conclude that Jimenez deserves a new trial.

After a 2010 hearing featuring the new defense experts and four prosecutio­n experts, then-state District Judge Charlie Baird told the Court of Criminal Appeals that he believed a new trial was needed in the interest of justice.

Baird concluded that the defense experts were more credible than the prosecutio­n experts when testifying that it is possible for a child to swallow a large wad of paper towels, despite the gag reflex, and that the mass could have been pushed farther down the boy’s throat during frantic rescue attempts.

The now-retired state district judge who presided over Jimenez’s trial, Jon Wisser, also joined the call for a new trial, saying there was a “substantia­l likelihood” that Jimenez was not guilty.

The Court of Criminal Appeals, however, unanimousl­y rejected Baird’s recommenda­tion, ruling in 2012 that the new informatio­n was not enough to legally establish Jimenez’s innocence or require a new trial.

In his report, Austin declined to rule on Jimenez’s innocence claim, saying it could not be acted upon at this point in her appeal.

But he noted that, if innocent, she was deprived of 15 years of freedom and the ability to raise her two children.

“If in fact Jimenez is not guilty of this offense — something both (Baird and Wisser) appear to believe and for which there is much evidence — the injustice done here is indeed profound,” Austin wrote.

One of Jimenez’s lawyers, Bryce Benjet with the Innocence Project in New York, praised Austin’s report but acknowledg­ed the difficult nature of the case.

“As we have throughout these proceeding­s, we must recognize the terrible tragedy suffered by the child’s parents through his loss. But Ms. Jimenez’s wrongful conviction has simply added to this catastroph­e,” he said.

 ??  ?? Rosa Jimenez was convicted of killing a child by stuffing paper towels down his throat.
Rosa Jimenez was convicted of killing a child by stuffing paper towels down his throat.
 ?? LAURA SKELDING / AMERICAN-STATESMAN ?? Rosa Jimenez’s attorney, Leonard Martinez, talks to her along with Catherine Haenni (left) and interpreto­r Maria Celeste Costley on Aug. 31, 2005, after the jury came back with a guilty verdict in her murder trial.
LAURA SKELDING / AMERICAN-STATESMAN Rosa Jimenez’s attorney, Leonard Martinez, talks to her along with Catherine Haenni (left) and interpreto­r Maria Celeste Costley on Aug. 31, 2005, after the jury came back with a guilty verdict in her murder trial.

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