After 17 Years In Jail, Rosa Jimenez Awaits Retrial or Release

Rosa Jimenez (Photo by Jana Birchum)

At a hearing Jan. 14, U.S. Magistrate Judge Andrew Aus­tin asked why Travis County District Attorney Margaret Moore would want to subject Rosa Jimenez to a retrial. "Has she read the four different judges' orders who have said they think this is a very infirm trial," asked Austin, "and there is likely an innocent woman who is sitting in a jail for 17 years?"

A spokesman for the D.A.'s Office said no decision has been made on whether to retry Jimenez, who was found guilty in 2005 of choking 21-month-old Bryan Gutierrez to death by shoving a wad of paper towels down his throat. But time is short: U.S. Judge Lee Yeakel has ordered that Jimenez be released or retried by Feb. 25. And according to the Attorney General's Office, a retrial is all but certain; unidentified members of the D.A.'s Office who were present at Tuesday's hearing also supported the idea.

In an effort to keep Jimenez in prison until the state's appeals are exhausted, the A.G. asked Judge Austin to push the deadline back indefinitely, arguing any attempt to transfer the undocumented Jimenez to Travis County for a new trial might allow officers of Immigra­tion and Customs Enforce­ment to snatch her en route and spirit her to Mexico, depriving the state of the retrial. Austin easily dismantled the argument, asking what evidence the state had for their ICE theory. Assistant Attorney General Jon Meador stuttered, "Well, just the unknown factors."

If the state's request is granted, the process would easily take more than a year, and Jimenez has developed stage IV chronic kidney disease. According to Vanessa Potkin, Jimenez's attorney from the Innocence Project, she'll need a transplant. Being in custody, said Potkin, "she would never get on a list, she would never even be considered. If the state drags this out it will turn into a death sentence for Ms. Jimenez."

Jimenez was babysitting Gutierrez at her North Austin apartment in 2003 when he staggered into the kitchen, choking. The 20-year-old Jimenez – seven months' pregnant and with her own 1-year-old daughter – later said she gave him the Heimlich maneuver and tried to remove whatever was obstructing his breathing, but he passed out. Screaming, she carried him to the apartment next door. EMS arrived and pulled a mass of compacted paper towels from Gutierrez's windpipe. By then his brain was severely damaged. He died in hospice three months later.

At the 2005 trial, prosecutors called three expert witnesses who insisted there was no way Gutierrez could have gotten the paper towels stuck in his throat on his own. Jimenez's trial attorney had limited funds – and the judge refused requests for money to hire the same caliber of experts the state had called – so he put a medical examiner from Con­nec­ticut on the stand. Under cross examination, the examiner got rattled. In the hallway during a recess, he told prosecutors to "go fuck [them]selves." When cross examination resumed, he was asked about the comment and responded, "That's an exactly correct quote." Travis County Judge Charlie Baird later said, "It would be hard to imagine a worse witness." Jimenez was convicted and given a 99-year sentence.

Two years later, Jimenez's story was the centerpiece of an award-winning Mexican documentary, Mi Vida Dentro, which highlighted the unfair trials given to undocumented women immigrants in America. Mexico's then-President-elect, Enrique Peña Nieto, advocated for Jimenez. Soon, the Innocence Project, an organization working to exonerate the wrongly accused, came on to the case. They appealed Jimen­ez's sentence and brought in a group of nationally known experts who, contradicting the state, said kids do indeed get large objects stuck in their throats and that Gutierrez's death was likely a tragic accident. In 2010, Judge Baird threw out the conviction and ordered a new trial.

U.S. Judge Lee Yeakel

Predictably, his order was reversed by the Court of Criminal Appeals, which agreed Jimenez's attorney had been "outmatched" but said the Constitution doesn't require equal sums to be spent on both sides of a case. The Innocence Project then moved their appeal to the federal side of the process and, eight years after Judge Baird threw out the conviction, Judge Austin recommended the same, saying Jimenez had not received a fair trial. Yeakel agreed and set the Feb. 25 deadline.

As per the court's instructions, Jimenez will soon be moved to the Travis County jail in preparation for her release or retrial. This is where she delivered her second child, a boy, in 2003 while awaiting trial. Since then, she's had little contact with her family; she's never held her son and hasn't seen her mother in Mexico, as rules prevent the families of those convicted of a crime from getting visas to visit them. Phone calls are limited to five minutes every six months. If released, Potkin said, Jimenez will likely return to Mexico, where her family lives. "All she wants to do is go home.