Rosa Jimenez in 2011 (photo by Jana Birchum)
A Travis County judge has declared that Rosa Jimenez, serving a 99-year sentence for the death of a toddler in her care in 2003, should be released from prison while she awaits a new trial that was first ordered a decade ago. At a Jan. 26 hearing, District Judge Karen Sage ordered the release on bond, saying, “I do not believe that Ms. Jimenez should spend another night in jail if it can be prevented.” Her attorneys say she could be free by the end of the week.
Jimenez, an unauthorized immigrant, was 20, a mother of a one-year old daughter, and seven months pregnant when 21-month-old Bryan Gutierrez, who she cared for regularly, began choking while she was making the children’s lunch. She ran to a neighbor for help, who called 911; at the hospital, Gutierrez was found to have a large wad of paper towels in his throat. Sustaining irreversible brain damage, the boy died several months later, at which point Jimenez had already been in jail for weeks, awaiting trial on what would become murder charges. Her daughter was placed in state custody, as was her son once he was born, while she remained behind bars.
The paramedics and physicians who tried to save Gutierrez concluded his injury must have been intentional, although there were no signs the boy had been abused and there were no witnesses to the event. Jimenez’s eventual trial in 2005 was shaped by testimony from three experts who insisted the toddler could not have swallowed the paper towels on his own. Jimenez’s lawyers, with little money for a defense, hired an expert whose testimony was later described by judges reviewing the case as worse than if Jimenez had presented no case at all. Throughout her 18 years behind bars, she has always maintained her innocence.
Jimenez’s guilt has been questioned by advocates for most of that time. In 2007, Mexican documentary, Mi Vida Dentro, strongly made the case that she’d been railroaded. In 2009, the New York-based Innocence Project took her case, and have since presented testimony from pediatric experts that children are indeed capable of getting large objects stuck in their throats. In a series of rulings going back to 2010, both state and federal judges in Travis County have heard this evidence and ruled that Jimenez should receive a new trial. Each time, the rulings have been appealed to higher courts, leaving Jimenez stuck in prison.
In 2019, on Jimenez’s 37th birthday, U.S. District Judge Lee Yeakel ordered the state to retry or release Jimenez by Feb. 25, 2020. Texas Attorney General Ken Paxton appealed that decision to the 5th U.S. Circuit Court of Appeals, where the case remains pending; Tuesday’s hearing before Sage was the latest attempt to get Jimenez out of prison while the case is being considered.
Again, the Innocence Project experts presented evidence that children can and do swallow large objects. This time they went further, with testimony that Jimenez couldn’t have forced the paper towels down Gutierrez’s throat without a struggle that would have left scratches and bruises on the toddler, Jimenez, or both – none of which were found in 2003. “A 21-one-month old child can be remarkably strong,” said Dr. Michael Rutter, a specialist in pediatric airway issues. “This would have been a major battle.”
The effort to get Jimenez released from prison took on more urgency at the end of 2019, when it was discovered that she has stage 4 chronic kidney disease. Her attorney, Vanessa Potkin, said at the time that if she was not released, “it will turn into a death sentence for Ms. Jimenez.” Should a new trial be ordered, it is very likely that Travis County District Attorney José Garza will drop the charges, which his predecessor Margaret Moore had pointedly declined to do. This would allow Jimenez to return to her family in Mexico, her fervent wish.