Lawmakers Ask District Attorney to Free Rosa Jimenez

Texas Attorney General's Office urges she remain incarcerated despite poor health

Rosa Jimenez (Photo by Jana Birchum)

On Monday, Feb. 3, five Austin state representatives sent a letter to Travis County District Attorney Margaret Moore appealing to her sense of "justice and basic humanity," asking that she release Rosa Jimenez. Jimenez is serving a 99-year sentence for the murder of a toddler in 2003, but her guilt has been questioned by U.S. District Judge Lee Yeakel, who late last year ordered that she be retried or released by Feb. 25. The Texas Attorney General's Office, with Moore's apparent consent, is trying to push that deadline back indefinitely and keep Jimenez in prison.

The letter from the five representatives – Vikki Goodwin, Donna Howard, Gina Hinojosa, Celia Israel, and Sheryl Cole – asked Moore to ensure that "an innocent person does not linger in state custody." Jimenez has developed stage IV kidney disease and the representatives fear that continued incarceration will become a death sentence for her. "She will likely require dialysis or a kidney transplant in the near future to remain alive," they write, "but she is unable to register on a transplant list while she is a prisoner of the state."

Moore responded within hours with a letter of her own. It did not address the representatives' concern that Jimenez might die in prison while awaiting a retrial and did not strongly endorse the notion of her innocence. Instead, Moore pointed out that the 5th U.S. Circuit Court of Appeals recently delayed any retrial of Jimenez while it considers Yeakel's ruling. She said she has appointed a team to determine if the case can or should be retried, and she has asked the Conviction Integrity Unit to review it as well. Meanwhile, she has met with the mother and uncle of the deceased child. "They are understandably distressed and disturbed," Moore writes. "They feel the loss of this child as if it happened yesterday."

Jimenez was babysitting 21-month-old Bryan Gutierrez in her North Austin apartment in 2003 when he collapsed, unable to breathe. EMS was called and removed a wad of paper towels from his throat. By then, Gutierrez's brain was severely damaged. He died months later in hospice.

Jimenez, an undocumented immigrant who spoke no English, was charged with murder even though there was no witness to the event, no sign of struggle, and she had no history of violence. Prosecutors presented three expert witnesses who insisted it was impossible for a toddler to get a large wad of paper towels stuck in his throat on his own. The trial judge refused requests by Jimenez's court-appointed attorney for money to hire the same caliber of experts the state had called. They instead put a medical examiner on the stand who arrived with no résumé and who, during a break in the trial, told prosecutors they could "go fuck [them]selves," a comment later used to discredit his testimony. The prosecutors' expert witnesses – and little else – convinced the jury that Jimenez was guilty.

In 2009, the Innocence Project came onto the case, filing a habeas appeal and presenting nationally known experts who testified that children do indeed get large objects stuck in their throats. A new trial was ordered for Jimenez in 2010, canceled by the Texas Court of Criminal Appeals in 2012, and ordered again last October. In January, representatives of the A.G.'s Office – aware of Jimenez's medical condition – asked the 5CA to keep her in prison; Moore said she awaits that court's response.

Goodwin learned of Jimenez's case from Vanessa Potkin, Jimenez's lead attorney and the Innocence Project's director of post-­conviction litigation. Like the five representatives, Potkin laments the broken family connections caused by Jimenez's conviction. "Her daughter was 1 [year old] and nursing when Rosa was arrested," she said. "Her son, who she gave birth to in jail a few months after her arrest, was taken from her as soon as he left the womb." Those children, now 17 and 18 years of age, have been raised by foster parents in the Austin area. Potkin said if Jimenez is released she'll likely return to her parents' home outside Mexico City. They have not been allowed to visit her during her incarceration.

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