In January 2003, Rosa Jimenez was babysitting a 21-month-old boy and her own 1-year-old daughter, when she noticed the boy was turning purple and having trouble breathing. After trying to clear his airways, she took him to her neighbor’s apartment for help. Another neighbor heard Jimenez screaming, came over, and called 911.
Paramedics eventually dislodged what they later learned was a wad of paper towels from the child’s airways. But because of the lack of oxygen, he suffered serious brain damage and died three months later.
Travis County, Texas, prosecutors charged Jimenez, who was 20 years old and seven months pregnant at the time, with murder, claiming it was impossible for a child of that age to accidentally swallow a wad of five paper towels. The case rested entirely on that argument.
“There is no way that Bryan put this in his mouth like—all by himself,” testified Dr. Patricia Aldridge (then Oehring), one of the state’s four medical experts.
With limited funds to hire credible experts to refute the state’s theory, Jimenez’s attorney called only one medical expert—a forensic pathologist—who testified that the boy’s death was an accident. His credibility was undermined, according to a petition filed on Jimenez’s behalf, because he used profanity during his testimony and had an “emotional outburst” while on the stand.
Jimenez was convicted and sentenced to 75 years in prison for murder and 99 years for injury to a child.
In October last year, U.S. District Judge Lee Yeakel ordered a retrial, concurring with a Texas magistrate judge that her defense counsel at trial was deficient and did not call the appropriate experts to refute the state’s argument. Since her conviction, four judges—beginning in 2010—have determined that Jimenez is most likely innocent. Three medical experts hired by her attorneys found that there’s “no reliable evidence” that his death “was anything [but] a tragic accident,” according to a petition to reconsider her conviction filed in 2012.
But Jimenez, who has advanced stage kidney disease, remains incarcerated.
The Texas attorney general’s office appealed Yeakel’s decision. And on Jan. 29, the Fifth Circuit Court of Appeals granted the attorney general’s motion to suspend Yeakel’s order while it considered the appeal. The Attorney General’s office did not respond to requests for comment.
Travis County District Attorney Margaret Moore told The Appeal that she has not decided whether she will drop charges or retry Jimenez. She is awaiting the Fifth Circuit’s decision, she said, “before we can definitively say what we’re going to do.” Meanwhile, both the DA’s conviction integrity unit and child abuse unit are reviewing Jimenez’s case, she said. (The Justice Collaborative has launched a campaign urging Moore to commit to dropping the charges. The Appeal is an editorially independent project of The Justice Collaborative and is not involved in the campaign.)
“I have a duty as the state’s attorney to see that justice is done and I am taking my duty seriously,” Moore said. “Juries in Travis County take their responsibility very seriously and I think it’s my duty to take their finding very seriously.”
Moore has been the subject of controversy throughout her first term for her handling of sexual assault cases and for continuing to ask for cash bail. On March 3, she’ll face two former defense attorneys who are running on progressive platforms in a highly anticipated Democratic primary.
Criminal justice reform advocates are questioning why Moore isn’t doing more to allow Jimenez to leave prison, where she has been for 17 years, and return to her family in Mexico.
“It seems if DA Moore was interested in resolving this case, that’s within her power to do so,” said Vanessa Potkin, director of post-conviction litigation at the Innocence Project, who is representing Jimenez. “It’s hard to imagine that if DA Moore expressed an interest in resolving this case, that the attorney general would be insistent upon continuing with an appeal.”
False or misleading forensic science, sometimes referred to as junk science, has been a contributing factor in 612 exonerations nationally, according to the National Registry of Exonerations. Of those, more than a quarter were convicted in Texas.
One of those people is Hannah Overton, who was convicted in 2007 in Nueces County based on medical expert testimony that she poisoned her foster son with salt. On appeal, her lawyers presented medical experts who argued that her son most likely had medical and psychological disorders that led to his death. The state Court of Criminal Appeals granted Overton a new trial, and she was released on bond in 2014. About four months later, Nueces County DA Mark Skurka dropped the charges. In 2017, DA Mark Gonzalez declared Overton innocent.
“My primary concern, in any case, is doing the right thing, no matter the optics, the political pressure, or any external considerations,” Gonzalez said in a written statement at the time. “I reviewed the case against Mrs. Overton and concluded that she was actually innocent of the charges and did not receive a fair trial.”
In more recent years, Texas has taken steps to remedy its poor record on wrongful convictions. In 2013, the state enacted a statute known as the Texas Junk Science Writ, which lets people challenge convictions based on faulty forensic science. The state legislature has also created the Forensic Science Commission—composed of a prosecutor, defense attorney, and seven scientists—to investigate misconduct that may have affected the findings of a forensic analysis.
“It has helped to clean up some of the junk science that was coming into court,” Mike Ware, executive director of the Innocence Project of Texas, said of the commission. However, its recommendations are not binding and evidence it recommends against can still be admitted into court, if permitted by a judge.
Despite these reforms, people like Jimenez and others continue to be convicted and imprisoned based on faulty forensics. In 2018, for instance, the commission condemned the blood spatter analysis in the case of Joe Bryan, who was sentenced to 99 years in 1985 for murdering his wife based on an expert’s blood spatter analysis. The commission called Bryan’s conviction “not accurate or scientifically supported.” He has maintained his innocence. Also in 2018, the New York Times Magazine and ProPublica published an investigation that raised questions about his guilt.
The state’s expert was, according to the commission’s report, “entirely wrong.” Last month, the Court of Criminal Appeals denied Bryan’s appeal. Bryan, now 79, remains in prison.
Judges and prosecutors can prevent junk science or misleading testimony from ever entering the courtroom. Once a conviction has been secured, they have an obligation to re-examine cases based on debunked or unvalidated forensic science, advocates say.
“A process that is abused by the kind of junk science regularly purveyed by the prosecution, as allowed by judges, is not a process with integrity,” said Ware, who was previously chief of the Dallas County DA’s office’s special fields bureau, which included the conviction integrity unit.
Prosecutors can and do play a critical role in exonerating a person who has been wrongfully convicted, said Kate Judson, executive director of the Center for Integrity in Forensic Sciences.
“A DA can not pursue criminal charges against somebody who’s been wrongfully convicted and granted a new trial,” she said. “The prosecutor in most of these cases has the power to exonerate someone and many of them do and should be absolutely commended for it, and some of them find it more challenging.”
In a letter to Moore on Feb. 3, five state lawmakers implored Moore to “take any necessary steps to ensure that justice and basic humanity carry the day.”
“Jimenez’s continued imprisonment, despite significant evidence of her innocence, harms not only Ms. Jimenez and her family, but also the public’s confidence in our justice system,” they wrote.
Moore responded with her own letter, saying she has a duty to the deceased baby’s mother and uncle, who “feel the loss of this child as if it happened yesterday.” Her office, she assured them, is carefully reviewing the case.
“There is an ultimate fact question that was resolved by the 12 men and women who actually saw all the evidence and heard opinion testimony,” Moore told The Appeal. “Everything after that is opinion by people who were not in that courtroom.”