Criminal Justice

Did Crappy Expert Testimony Condemn an Innocent Woman to Prison for Murder?


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.

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  1. and who swore at prosecutors in the courthouse hall

    When did that suddenly become inappropriate?!

  2. Why would a kid stuff wet paper towels in his own mouth?

    1. Why would they put marbles up their nose?

      1. “What else are all these orifices for?”

      2. “Some questions shouldn’t be answered.”

      3. “Because Fuck You, That’s Why.”

      (Answers listed in likelihood of coming from a toddler…2 and 3 are probably tied…)

    2. Your question leads me to believe that, not only have you never been around a toddler, you never even were a toddler.

      1. My thoughts exactly. Kids will put any goddam thing in their mouth.

        1. Some do. Some are pretty good about it.

      2. We all know that experts with respect to illegal drugs have no personal experience with drugs. That would leave them tainted and biased.

        So I assume that these experts on toddlers have never been around actual toddlers for the same reason.

        1. So I assume that these experts on toddlers have never been around actual toddlers for the same reason.

          Hmmm…so you’re saying if I get in on this expert toddler witness gig, I’d have an airtight excuse to avoid people’s kids. Any idea what the qualifications and compensation are like?

    3. “I’m not an idiot, Woodhouse. Unlike some people around here. That’s silver tipped badger, kid; do you know how much this cost?”

    4. Why would a kid stuff wet paper towels in his own mouth?

      You don’t have children, do you?

      1. I don’t have a stupid child.

  3. a child of Bryan’s age could indeed stuff five sheets of wet, balled-up paper towel into his mouth

    Then the kid panics, a quick indraw of breath pulls in the paper, and everything goes to shit.

  4. 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.”

    So why the fuck didn’t he do anything? Trial judges can set aside guilty verdicts that they find are against the weight of the evidence.

    1. Apparently “substantial likelihood that the defendant was not guilty” does not constitute “reasonable doubt”.

      1. Often when I hear about the evidence that people get convicted on, I wonder what the hell does count at reasonable doubt. Unless someone saw her put the towels in the kids mouth, or there was strong evidence that something had been forced into his mouth, I would have thought there was reasonable doubt.
        Any of our lawyers know if there is a real definition of reasonable doubt, or is it just whatever the judge and jury consider it to be?

        1. Look. She’s a dirty Mexican. What else do you need to know?

    2. Maybe for white people.

    3. Trial judges in Texas are elected. As you well know. Next question?

      Another good one is, if he was so concerned about her potential innocence, why did he sign off on a 99 year (the max, incidentally) sentence?

  5. Meh, this is the kind of stuff the American (and the undocumented workers living in America) apparently want, so I’m not going to get too worked up about it anymore.

  6. Even if she is innocent, she’s negligent as hell for allowing a kid in her care to asphyxiate himself. We’re that my child, she’d have bigger problems than jail.

    1. Yeah, this is a very good point. Sounds like a shit trial, but at the very least, “WTF how did my kid choke to death? YOU WERE SUPPOSED TO BE WATCHING HIM!!”

      Sad all the way around.

  7. Jacob, I just got my Costco connection magazine and saw your essay in there about stand your ground laws. Nice work. I will vote in their surveys for the first time.

  8. Reason’s reporting is diminished to no small extent by Balko’s absence. I hope he found whatever he went looking for over at HuffPo.

    1. I’m guessing he was mostly looking to get away from us.

      1. So no truth that The Jacket? went rogue, cornered Balko in the break area and threatened him because he challenged Gillespie’s hegemony over the place?

        This kind of shit never happened when Postrel was in charge…

    2. I think he’s been writing a book too.

  9. America would have been better off if both of these 3rd world invaders had been stopped at the border.

    1. Chris, did your wife leave you for a Hispanic guy? Is that why you’re so upset?

      1. I wasn’t sure what the dude even meant. I felt I’d just leave it alone.

        1. Except, if his opinion is that less hispanics = more good, then wouldn’t the immigration-deadbaby chain of events be the better outcome? Dude can’t even do racism properly.

        2. He regularly comments on stories about (even in a remote sense) immigration, terrorism, or anything involving non white people, and makes comments like this about how we have to kick out “3rd world savages” and not let any more in. I figure there’s gotta be a strong reason why he has such an obsession over it.

  10. I have to admit that I hate these cases where a toddler or infant dies under questionable circumstances.

    It’s very, very easy to kill a baby and make it look like an accident. It’s also very easy for an infant to suffer an accidental death in a way that looked intentional.

    I hate the idea of someone getting off for the murder of an infant on bitched up evidence almost as much as I hate an innocent person going to prison for the rest of their life on bitched up evidence.

    1. rather many guilty go free, than something something something

      They’re only infants, it’s not like there’s a shortage *ducks*

  11. In reading the court’s decision, this case seems closer than one might assume. It doesn’t look to me like Jimenez was railroaded.

    It looks like both sides were able to present plausible theories of what happened, and ultimately the jury had to pick one. The additional experts that Jimenez brought in her habeas proceeding didn’t do much more than bolster the trial expert’s findings, as far as I can tell. There wasn’t any new or withheld evidence.

    The problem is a 100% reliance on forensic testimony by the prosecution. I think it’s a good question whether a jury can make a fair determination in such a circumstance. Personally, I’d say that even Jimenez’s single expert was able to create reasonable doubt as to what happened, but I can see how some might disagree.

    1. If I were on a jury, I don’t think I could convict anyone just based on “expert” testimony. Especially if the defense has another plausible explanation. If the defense can provide a plausible explanation, that sounds like grounds for reasonable doubt to me.

      1. I agree. The difficulty is that courts have always been reluctant to second-guess juries. There pretty much has to be no evidence supporting the jury’s verdict for it to be overturned.

        In criminal cases this is problematic, since people’s lives are on the line. Ultimately, the court system cannot develop a perfect, error-free model.

        The overarching problem is that both the justice system and the American people at large feel an increasing need to assign blame and punishment for any negative occurrence. Nothing is an “accident” anymore, as far as the justice system is concerned. Forty years ago this case doesn’t get brought, even though there’s nothing cutting-edge about the forensics involved.

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