Update 10 a.m. cst 1/15/20: A federal magistrate has rejected Texas prosecutors’ effort to delay the release of Rosa Estela Olvera Jimenez, until an appellate court can consider the state’s appeal of the magistrate’s order granting a new trial. The ruling opens the door to her release from prison after she served 14 years, convicted of a murder, amid evidence of her innocence. Developing.
Rosa Estela Olvera Jimenez has long insisted that she didn’t kill a toddler she was babysitting in 2003, who suffered fatal injuries from paper towels that prosecutors accused her of stuffing down the boy’s throat.
Nevertheless, a jury convicted Jimenez, an undocumented immigrant living in Austin, Tx., and sentenced her to 99 years in prison.
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But now, after 17 years in prison, Jimenez appears likely to be released.
At a Tuesday hearing, a federal magistrate judge in Austin said that he would rule shortly on a motion to release Jimenez on bail against the objections of prosecutors who are appealing the grant of her petition.
The magistrate judge, Andrew W. Austin, had previously concluded in an opinion last fall that “justice and fundamental fairness” compelled him to enter an order overturning the verdict against Jimenez, requiring the state to either release her or retry her by Feb. 25.
There were no witnesses to help explain how five paper towels got in the throat of her alleged victim, 21-month-old Bryan Gutierrez, according to the court record. Jimenez had been watching Bryan after his mother dropped him off at Jimenez’s house on Jan. 30, 2003, and contended that as soon as she saw the child turning blue, she took him to a neighbor, where they tried to revive him and called 911.
Bryan died from his injuries several weeks later.
The case hinged on prosecution expert testimony that a toddler could not have stuffed the paper down his own throat, and therefore Jimenez was guilty. The defense relied on an expert, Dr. Ira Kanfer, who was a forensic pathologist but neither an expert in pediatrics or choking. After prosecutors grilled Kanfer about his credentials, according to the court record, he testified that he had said during a break that the prosecutors “could go fuck themselves.”
In a series of post-conviction proceedings, new defense experts provided evidence that contradicted the prosecution’s argument that Bryan could not have shoved the towels down his own throat.
“It wasn’t like the state made it out to be,” said Anna Vasquez, director of outreach for the Innocence Project of Texas, who was in the courtroom Tuesday. “You can make any kind of accusation, unless there are the right experts to dispute it,” she said.
Vasquez and three other women were exonerated more than a decade after they themselves were convicted of child assault. She now works on behalf of other defendants who she believes are wrongly convicted, particularly women.
Vasquez said that women face a particular onus when accused of harming a child, because the act disrupts expectations in our society that women possess a maternal instinct.
“It’s very hard to fight, when a woman is accused of harming a child,” she said. “For society, nothing can be worse than harming a child.”
The president of Mexico cited the Jimenez case in 2012 as an example of how Mexican nationals could not be fairly tried in the United States, urging the U.S. Supreme Court to grant her a new trial.
Before magistrate Austin stepped in, the Texas Court of Criminal Appeals had refused to overturn the verdict. Austin, in his later opinion, wrote that the ruling was “based on several factual determinations that were plainly unreasonable in light of the record before the state court.” Austin characterized Jimenez’s court saga as the “rare case in which justice and fundamental fairness require granting the petitioner a writ of habeas corpus.”
“The judge who presided over the trial has explicitly stated that he had ‘serious doubts’ about the verdict and that ‘there is a substantial likelihood that [Jimenez] was not guilty,’” Austin wrote. “He also stated that his confidence in the verdict was further undermined when he became aware of the expert testimony at the state court habeas proceedings.”
His opinion also noted that a former appeals and state district judge, who presided over the state habeas evidentiary hearing, concluded that Jimenez didn’t get a fair trial, and suggested that the jury would have likely reached a different verdict if the experts from the habeas hearings had testified at the trial.
In seeking her release from custody while prosecutors appeal Austin’s ruling, Jimenez’s attorneys noted what they called exceptional circumstances that warranted her release.
Jimenez has not been able to see her own teenage children, the youngest of whom was born after she was incarcerated, in recent years. The mother also suffers from kidney disease that likely will require dialysis or a transplant, her attorneys said.
Nevertheless the state attorney general, along with local prosecutors, appeared in court Tuesday to oppose granting relief to Jimenez. They contend she should remain in custody while they appeal Austin’s grant of Jimenez’s petition to the Fifth Circuit U.S. Court of Appeals.