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Judge to D.A.: Woman Likely Not Guilty in Toddler Death

Judge Jon Wisser wrote a letter to the district attorney expressing concern over the case he originally presided over

By Jordan Smith, Fri., Oct. 5, 2012

Rosa Jimenez
Rosa Jimenez
Photo by Jana Birchum

While the U.S. Supreme Court has yet to decide whether to accept the case of Rosa Jimenez, in prison for the choking death of a toddler in her care, the judge from her original trial now says he believes there is a "substantial likelihood" she is "not guilty of this offense."

In a letter written to Travis County District Attorney Rosemary Lehmberg, senior Judge Jon Wisser wrote in late August that he believes Jimenez received a fair trial, had competent representation, and that a "reasonable jury could and did convict her." But, he nonetheless believes it is unlikely she is guilty of choking toddler Bryan Gutierrez in 2003 and, he wrote, has "serious doubts about [the guilty] verdict."

Jimenez was convicted and sentenced to 99 years in prison for the death of Gutierrez, whom she was babysitting in January 2003 when prosecutors say she shoved a wad of five paper towels down his throat, choking him. He died in hospice three months later. At her trial, doctors who treated Gutierrez insisted that the choking had to be intentional, but during a December 2010 hearing, Jimenez's lawyers brought to court several nationally recognized medical experts who disagreed; the choking was more likely a tragic accident, they testified.

The Texas Court of Criminal Appeals said the evidence was not "clear and convincing" of innocence, which is what the CCA ruled would be needed to prove her innocence. Whether that is the standard is now a question for the Supremes. The court has asked Travis County prosecutors to submit a brief on the issues before it decides whether to take the case.

In his letter to Lehmberg, Wisser wrote that granting Jimenez a new trial, or agreeing to a plea of time-served, would "be in the best interest of justice." In an email to the Chronicle, Lehmberg wrote that she has "great respect" for Wisser, but "in this instance I respectfully disagree with him." For more on the case, see the Newsdesk blog, and "A Parliament of Experts," Feb. 4, 2011.

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