The Texas Court of Criminal Appeals, while rejecting Rosa Jimenez's request for a new trial last April, conceded that the courtroom in which she was convicted of murdering a toddler was not "a level playing field." In particular, the court said, Jiminez "makes a compelling argument that she was outclassed and outmatched by the State's numerous experts." Four months after that ruling, the judge who presided over Jimenez's 2005 trial, Jon Wisser, wrote a letter to Travis County District Attorney Rosemary Lehmberg in which he said, “I believe now, as I did at the time of the trial, that there is a substantial likelihood that the defendant was not guilty of this offense." Now Jimenez, who has already served nearly 10 years of a 99-year sentence, is asking the U.S. Supreme Court to intervene. Her petition has the support of Mexico's incoming president, Enrique Peña Nieto, who sees her case as an example of the unequal legal treatment Mexicans receive in Texas. According to The New York Times, Peña Nieto "contends that there is a widespread perception that Mexican nationals cannot get a fair trial in Texas," which he says is "bad for the citizens of both our countries.”
That narrative is complicated by the fact that the mother of Bryan Gutierrez, the 21-month-old boy Jimenez was convicted of killing, is, like Jimenez, an illegal immigrant from Mexico. Had Jiminez been acquitted, the case might still be held up as an example of how Mexicans cannot get justice in Texas. Charlie Baird, the Travis County judge whose retrial order for Jiminez was reversed by the appeals court, seems closer to the truth when he says:
This case shows that the poor are not on an equal footing; it's not a fair fight. The state had unlimited resources to avail itself of medical experts. Ms. Jimenez went begging for expert assistance. She had woefully inadequate funds to do so.
Expert medical testimony was crucial in this case because Jimenez was accused of stuffing five wadded-up paper towels down Bryan's throat while babysitting him in January 2003. The prosecution speculated that Jiminez, who had watched Bryan for seven months with no problem, was frustrated by his crying. The state's expert witnesses said it would have been impossible for the boy to swallow the towels on his own, which is what Jiminez said must have happened. The defense's expert witness, according to the Times, "came off as an amateur." He was "a forensic pathologist who was not an expert in pediatrics or choking, who cost far less than the experts her lawyers originally sought and who swore at prosecutors in the courthouse hall." Baird tells the Times, "It would be hard to imagine a worse witness. That’s what you end up with when you are given a pittance to hire an expert." At a 2010 hearing, "experts in pediatric airway disorders testified that a child of Bryan's age could indeed stuff five sheets of wet, balled-up paper towel into his mouth." They concluded the boy's death was probably accidental. In Jimenez's Supreme Court petition, her lawyers argue that "the rejection of Jimenez's ineffective assistance claim conflicts with this Court's precedents recognizing the vital importance of expert assistance in ensuring a fair trial."
The Austin Chronicle laid out the reasons for doubting Jimenez's guilt in a 2001 story. Radley Balko, who wrote extensively for Reason about problems with expert testimony in criminal trials, argues that the government has a duty to make sure people it accuses of crimes have enough money to hire competent expert witnesses. In the July 2011 issue of Reason, Clay Conrad explained how the right to counsel is undermined by inadequate funding for public defenders.