 Rosa Jimenez (Photo: Innocence Project)
The exoneration culminated a years-long legal battle in state and federal courts. Jimenez was 20 years old at the time she was convicted of the boy’s death. By the time she was released on bond on January 27, 2021, Jimenez had been diagnosed with end-stage kidney failure and was on dialysis. She had moved to New York City in the hope of obtaining a kidney transplant.
On the day the charges were finally dismissed, Jimenez spoke to the media along with her attorneys from the Innocence Project, Vanessa Potkin and Barry Scheck. “I know a chapter of my life is over today and I have my whole life ahead of me,” Jimenez said.
The chapter that ended began on January 30, 2003. Jimenez was seven months pregnant and babysitting for Bryan, the son of Victoria Gutierrez, while Gutierrez was at work. In the early afternoon, Jimenez came to the door of a neighbor, Irene Vera. Jimenez, who was carrying Bryan, was crying and asking for help. She said she thought Bryan had swallowed something. Vera put the child on the floor and put her finger into his mouth. However, he bit down on it.
Paramedics were summoned. One of them eventually used forceps to remove a wad of paper towels from the boy’s throat, later estimated by one physician to be as large as an adult fist.
Physicians who saw the boy and the wad of paper towels immediately concluded that it was too big for him to have accidentally swallowed it—that it must have been forcibly pushed down his throat.
Jimenez was taken to the police station where Detective Eric De Los Santos interviewed her. The interview was conducted in Spanish and recorded on videotape.
During the interview, Jimenez told De Los Santos that Bryan and Jimenez’s one-year-old daughter were both suffering from colds that day, and that at one point she had used a paper towel to blow Bryan’s nose. She said she left a roll of paper towels on the sofa and then went to the kitchen to cook. She said she then noticed that Bryan and her daughter were playing with the paper towels. She told Bryan to stop. However, he continued to tear sheets from the roll and throw them. Jimenez said she saw Bryan go to the bedroom, leaving the roll of paper towels on the sofa. She said she told Bryan to “come over here where I can see you” because she did not want him to go into the bathroom and put his hands into the toilet bowl—something he was prone to do. She said she then saw Bryan coming toward her, “walking very slowly” with his hand on his throat. She saw that he was very red, asked him what was wrong, and when he did not answer her, became concerned that he was choking.
Jimenez said she took Bryan into the bathroom, squeezed his cheeks together and put her fingers in his mouth to try to look inside, and hit him on the back to try to dislodge what was in his throat. When this was not successful, she took Bryan to Vera’s apartment, arriving only about a minute from when she first saw the boy choking.
Later in the interview, Jimenez began to cry. She said she loved Bryan “as if he were my boy. Out of carelessness, was what happened to him [sic].” She denied putting the paper towels in Bryan’s mouth. However, under repeated questioning from De Los Santos, Jimenez said she could not remember if she did or not.
“I only remember that I opened his mouth,” she said. “But due to nervousness from…not knowing what to do, I don’t know if I pushed the paper…I don’t remember, from the nerves, you see? I don’t remember well.”
De Los Santos asked, “Is it possible?”
“Maybe, I don't know,” Jimenez said. “Yes, look, I opened his mouth. But at that moment, I opened his mouth and I don't remember....”
During the interview, De Los Santos noticed what appeared to be scrapes and abrasions on her thumb and forefinger of her right hand. Asked about the injuries, Jimenez said, “I’m telling you, maybe I put my hand inside the little boy—I don't remember.”
De Los Santos asked, “But I’m asking you. How does it look [to] you?”
“To me?” Jimenez replied. “As if the little boy had bit me ... .And I don't remember if ... if at that moment when I did this, after I did this ... from there on I don't remember if ... if I ... put the hand in his mouth. I can't remember.”
“Try to remember,” De Los Santos said.
“Possibly when ... I saw that he was choking. When he was going to ask me for help,” Jimenez said.
“But did he bite you?” De Los Santos asked.
“It can be seen that he bit me,” she replied.
As the interview continued, Jimenez expressed concern for her daughter, who had been taken into protective custody by Child Protective Services (CPS). At one point, she was allowed to call Vera to ask about her daughter. During the phone call, Jimenez said, “They’re saying it was me. That they want to say it was me. They’re saying that ... they’re trying to say it was me. Oh! I don't know anymore. I mean, how is it possible that the little boy put so much paper in his mouth?”
Late in the interview, Jimenez asked De Los Santos if she could speak with him “as a friend.” De Los Santos agreed and accompanied her outside. Unbeknownst to Jimenez, De Los Santos secretly recorded their conversation with a digital audio recorder in his pocket. During the conversation, Jimenez asked, “If I were to tell you that I did it, what would happen?” De Los Santos said he would present that information to the attorneys and that there was a possibility that she would go to prison. She then asked about how long she could go to prison, and De Los Santos told her that he did not know. De Los Santos then asked more questions, but she declined to talk further until she saw her daughter.
Back in the interview room, De Los Santos made arrangements with CPS to allow Jimenez to visit with her daughter at the station, but even after she saw her daughter, Jimenez refused to answer any of De Los Santos’s questions. He finally asked, “But I want to know why. Please. Just tell me here, why did it happen?”
“I can’t,” Jimenez said.
The interview was ended, and De Los Santos drove her home. In the meantime, another detective obtained an arrest warrant. Several hours after she returned home, on January 31, 2003, Jimenez was arrested on a charge of injury to a child.
On April 27, 2003, Bryan died. He had never regained any cognitive functions, although he was able to breathe on his own. Felony murder was subsequently added to Jimenez’s charges.
In August 2005, Jimenez went to trial in Travis County Criminal District Court. The prosecutors, Allison Wetzel and Gary Cobb, relied upon medical testimony as well as testimony from police and paramedics.
Bryan’s mother, Victoria Gutierrez, testified for the prosecution that the boy liked to take everything out of the kitchen cabinets and drop them into the toilet. She said he liked to play with paper and once dropped an entire roll of toilet paper into the toilet. She said she did not know him to put paper towels into his mouth.
Austin police officer William Torres testified that he was the first officer to respond to the 911 call. He could not feel a pulse. Torres said, “His mouth was open, but not all the way…I tried to put my finger in there. It would only go about halfway.”
He said Bryan did not respond to CPR because something was stuck in the boy’s throat. Torres said he went outside when the paramedics arrived and talked to Jimenez. She was crying and demanding, “How is he? Is he okay?” She told Torres she did not know what he had swallowed. When Torres and Jimenez went to retrieve the phone number for Victoria Gutierrez, she said that she was cooking when she called to Bryan to bring her the roll of paper towels. Torres said she told him that when Bryan did not reply, she went to look for him and found him lying on the floor and not breathing.
Jordan Rojo, one of the paramedics, testified that when she and fellow paramedic Rob Curr arrived, Brian was not breathing, had no pulse, and his lips were blue. Rojo said she tried to force air into the boy’s lungs, but could not. Curr then tried to intubate the boy and noticed an obstruction covering the trachea. Curr tried to remove it with forceps and noticed it was falling apart. After they retrieved two dime-sized pieces, Rojo believed the boy was choking on food. Curr told her it was paper. On the third attempt, Curr pulled out what Rojo said was a “large mass” of “blood-soaked” paper towels, “the size of a large egg.”
Rojo testified that she was stunned at the size of it, how far it was into Bryan’s airway, and the amount of blood on it. She said that at that point, she no longer believed the boy had accidentally choked.
Curr testified that he was surprised as well and expected to find “a food product or a toy” because that’s “typically what children choke on.”
Dr. John Boulet, a pediatric emergency physician, testified that Bryan was comatose upon arrival. Boulet testified that the wad of paper towels appeared to be close to the size of his fist. He testified that an object of such size would not go down a child’s airway accidentally—“it would have to be put down there.” He said a 21-month-old child was not capable of doing it himself because the child’s gag reflex would prevent the child from pushing such an object that far down his throat. One estimate suggested that the wad consisted of five sheets of paper towel.
Dr. Patricia Oehring, a pediatrician, testified that she treated the boy following his transfer to the intensive care unit. She said the boy had suffered a “hypoxic brain injury” due to lack of oxygen. She said his brain had been deprived of oxygen for “probably 30 or 40 minutes,” and that this was “absolutely not” consistent with Jimenez’s claim that she took the boy to the neighbor in about a minute after she discovered him choking. Dr. Oehring testified that she had seen a photograph of the wad of paper. She said that “it looked like an organ that had been removed from a body, actually. It was not identifiable as paper towels.”
“There is no way [Bryan] put this in his mouth…all by himself,” Dr. Oehring testified. She ticked off a list of things that toddlers put in their mouths—“things…that either look like they’re going to taste like candy or they look like food or they look like something to drink. They drink lamp oil. They put beads in their mouth…If it doesn’t taste good or have an interesting texture, they’re not going to leave it in their mouths. They’re not going to shove it to the back of their mouths….children don’t suck on paper towels.”
Dr. Oehring concurred that the boy’s gag reflex would have prevented him from forcing a large object down his mouth. She also said an adult had put the towels in the boy’s mouth. “He would have to have been held down,” Dr. Oehring testified. “[P]robably on the floor with some part of somebody’s body holding him in that one position...But he would have been coughing and gagging and bleeding and fighting and struggling up to the point where his brain didn’t get enough oxygen to where he became limp.”
Dr. Oehring said the child would not have the dexterity or strength to wad the paper towels together, and not enough saliva to wet the paper towels so they could fit in his mouth. She speculated that the wad must have been soaked in water before being put in the boy’s mouth.
Dr. Elizabeth Peacock, Travis County deputy medical examiner, testified that the cause of death was damage to the brain due to lack of oxygen. Peacock did not perform the autopsy, but after reviewing the autopsy report, she agreed the death was a homicide. It was “not a close call,” she said. Asked to explain if a 21-month-old child could put such a large object into his airway, she said that “the physics of it are impossible.”
Dr. Peacock said that the back of a child’s mouth narrows to an opening less than an inch in diameter. She said it would be possible for an adult to force a large object down a child’s throat.
The defense called Wilson Young, a DNA/serology analyst with the Texas Department of Public Safety who had analyzed objects seized from Jimenez’s apartment as well as the paper towels from the boy’s throat. He said Bryan’s DNA was found on a faucet handle in the bathroom. He said that Jimenez’s DNA was not present on the towels. During cross-examination, Young said that did not mean Jimenez had not touched them. He said, “To just touch an item for a short period of time would not release sufficient cells from the hands or from the body…to test them.” In addition, Young said that because the towels had been removed from the mouth of the boy, “that would create a situation such that the cells from within that person’s mouth would be the predominant cell structure, cell type that would be on that item.”
Dr. Ira Kanfer, a forensic pathologist and medical examiner, testified that if five paper towels had been forced down a child’s throat, there would have been some evidence of trauma “around the cheeks, the lips, the teeth, [or[] a cut gum” because the child is “going to fight like hell. There’s going to be bruises. There’s going to be tears. There’s going to be contusions.” He added that the child’s teeth would have “ripped to shreds” anything that was forced upon him.
Dr. Kanfer said that in his opinion, the blood on the paper towels was consistent with pulmonary edema, a reaction that occurs when someone is choking—although Dr. Oehring and Dr. Boulet had testified earlier that the blood was not from pulmonary edema. Dr. Kanfer said that various attempts to resuscitate the boy may have driven the wad further into the esophagus and further obstructed the child’s airway. He said he had performed his own experiment—wetting and wadding up five paper towels and squeezing them to the point where it would fit in a child’s mouth.
The defense called Dr. Randall Alexander, a pediatrician who the prosecution intended to call as a rebuttal witness. Dr. Alexander, who was treated as a hostile witness, was called to testify before Dr. Kanfer was cross-examined in an apparent attempt to bolster Dr. Kanfer’s testimony. Dr. Alexander testified that if a child’s airway was completely blocked, the heart would not continue to beat for an hour. Dr. Alexander also testified that pulmonary edema might or might not occur when the airway is blocked.
The prosecution then was allowed to question Dr. Alexander. He essentially concurred with the prosecution’s other medical experts. He agreed that it would have been impossible for a child of Bryan’s age to force five paper towels down his throat, let alone wad them tightly enough to fit into his mouth.
Dr. Alexander also testified that child abuse was his primary “area of interest” in his pediatric practice. He said he had performed and reviewed studies on people who are likely to commit child abuse. “We know that males commit about 60 percent of physical abuse; females commit about 40 percent. Parents…commit more of it than anyone else. The two highest groups would be mom’s boyfriend, and a babysitter.”
Asked by the prosecution whether a person with no reported history of child abuse would commit a fatal act of child abuse, Dr. Alexander cited a 1995 report that in 60 percent of the child abuse fatalities, “there was no previous police history, no Child Protective Services history.”
Dr. Alexander was also allowed to testify about “the psychology behind attacking a victim’s mouth.”
“Well, it’s basically the mouth that offends you, so you go for the thing that makes you mad,” he said. He said that in child abuse cases, an abuser would stuff something in the mouth of a crying child…to put a cork in it.”
The prosecution noted that Jimenez was said to first say she saw the boy coming toward her clutching his throat and later said that she found the boy lying on the floor.
“It’s concerning for abuse,” Dr. Alexander testified. “It’s, again, not absolute proof of anything…But in accidental situations, we tend not to get different histories….given that kind of history, that would make me start worrying, thinking I might have to report this to the authorities…to see if there’s a child abuse situation here.”
When Dr. Alexander finished testifying, Dr. Kanfer returned for cross-examination. His testimony was problematic. He admitted that had stopped keeping his licenses up to date because the money was better off in his own pocket. He admitted he had authored a paper “How to turn a homicide into an accident.” And he peppered his testimony with the use of the word “goddam.”
During a break in his testimony, Dr. Kanfer made what an appeals court would later describe as a “rather contemptuous comment about the prosecutors.” Prosecutor Wetzel brought it to the jury’s attention during the cross-examination. The defense did not object.
“And you’re just here as a completely unbiased expert to educate the jury?” Wetzel asked.
“Exactly,” Dr. Kanfer replied.
“Is that why, on the break, you made the statement that they, referring to Mr. Cobb and myself, could go [expletive] ourselves?” Wetzel asked.
“Right,” Dr. Kanfer replied. “That’s an exactly correct quote.”
Wetzel brought it up later. “Do you remember that you made the statement that Mr. Cobb and I could [expletive] ourselves before I ever asked you about money? Do you remember that?”
“I don’t know when I made the statement that—that you could both [expletive] yourselves, but I definitely made that statement,” Dr. Kanfer said.
“Is that something that you routinely do when you go out of state to testify as an expert witness?” Wetzel asked.
The defense finally objected. However, the objection was overruled when Wetzel said the question was relevant to Dr. Kanfer’s bias.
Wetzel brought it up a third time toward the end of the cross-examination. “But you’re not angry at Dr. Alexander,” she asked.
“No, he’s a nice guy,” Dr. Kanfer said.
“Okay,” Wetzel said, “Well, then you don’t want to tell him to go [expletive] himself?”
“No,” Dr. Kanfer replied.
There was no defense objection.
Fidel Juarez, Jimenez’s husband, testified that he had seen Bryan playing with paper and putting it in his mouth. Asked about paper towels, Juarez said, “Yes, when I was eating, he was always tempted to grab that roll of paper towels.” Juarez also said he had seen the boy put a single sheet of paper towel in his mouth, but he took it away from him.
The defense called several witnesses who testified that Jimenez was a peaceful person, not quick to anger, and a good mother who loved and took good care of children.
The defense also called Dr. Vladimir Parungao, the pathologist who had performed the autopsy on Bryan, in an attempt to discredit his finding that the death was homicide. The defense suggested that Parungao had been influenced by the police. Dr. Parungao stood by his finding.
The trial was being filmed by a documentary film crew. Not surprisingly, the closing arguments were heated.
During the initial closing argument, prosecutor Cobb relied on the medical experts and also pointed to a “bite mark” on Jimenez’s hand as part of its claim that she had shoved the wad down his throat. That argument was based on a photograph of Jimenez’s hand taken during her interrogation, and her statement to De Los Santos that Bryan had bit her.
Jimenez’s defense attorney, Leonard Martinez, countered by noting that although the prosecution had consulted with a forensic odontologist to examine the mark on Jimenez’s hand, the expert had not been called to testify. He accused the prosecution of being lazy and failing to find the truth. “You won’t check the literature. You won’t check the forensics. You won’t get the forensic odontologist that you consulted and [who is] not in this court to testify because it ain’t no bite. So stop calling it a bite. It ain’t no bite.”
In the rebuttal argument, Wetzel struck back at Martinez. “I have not a real emotional approach to guilt/innocence,” she said. “I’m not going to scream at you. I’m not going to wave my arms. I’m not going to call people names.” She said that Martinez “yelled at the top of his lungs” that the mark on Jimenez’s hand was not a bite mark.
Wetzel also claimed that she tried to stuff five paper towels in her own mouth and that it “was not a pretty sight.”
On August 31, 2005, the jury convicted Jimenez of injury to a child and felony murder. She was sentenced to 99 years in prison on the injury to a child conviction and 75 years in prison on the felony murder conviction.
A motion for a new trial was filed in September 2005. The motion claimed, in part, that the prosecution had argued that a mark on Jimenez’s hand was a bite mark, but the state “knew those marks were not bite marks but hyper-pigmentation from an old burn. That was the reason [the prosecution’s] dental expert was not called and no medical expert was asked to identify these marks.”
Jimenez was granted a hearing on the motion, but the motion was withdrawn. An amended motion was filed on October 28, 2005. The state objected because it was filed after the 30-day window for such motions. The judge sustained the objection, but allowed the defense to introduce evidence of the claims in the amended motion. The judge then denied the motion.
In 2007, the Texas Third Court of Appeals affirmed the conviction and sentence.
The court did find that several portions of Wetzel’s closing argument were improper, including comments on facts that were not in evidence, and personal attacks on Martinez. The court ruled that the defense had failed to object, therefore waiving appellate review. And though the court conceded that Wetzel “injected sarcasm into some of her objections, her closing argument and her questioning of Dr. Kanfer,” Jimenez was not entitled to a new trial. “We conclude that any error in allowing the improper arguments, even if it had been preserved, was harmless,” the court declared.
The documentary, Mi Vida Dentro (My Life Inside), produced by Mexico City filmmaker Lucía Gajá, aired two years after the trial. In the film, Jimenez was shown in her prison cell, sorting through family photos.
“The country took away from me what I most loved,” she said in the film. “My children. My husband. My mother. My freedom. My happiness. Everything a woman yearns for, they took away from me. In one day.”
The documentary prompted a wave of outrage. Letters poured in to the Mexican government, which hired a lawyer, Yuriria Marvan, to find an attorney to represent Jimenez. Marvan settled on Bryce Benjet, an Austin attorney working on death penalty cases. Benjet who would become an attorney with the Innocence Project in New York City and in 2020, the head of the Conviction Integrity Unit at the Queens County, New York District Attorney’s office.
Benjet filed a state petition for a writ of habeas corpus and ultimately, Travis County Criminal District Judge Charlie Baird held a hearing to allow for testimony from experts assembled on Jimenez’s behalf.
Dr. Karen Zur, a pediatric otolaryngologist, and Dr. John McCloskey, a pediatric anesthesiologist and critical care specialist, both testified, and Dr. Janice Ophoven, a pediatric forensic pathologist submitted an affidavit. All three questioned the reliability of the conclusions offered by the State's experts at trial and testified that Bryan’s injury was likely due to an accidental choking.
The prosecution recalled its experts from the trial and all of them reaffirmed their trial testimony. In addition, the prosecution presented Dr. James Eskew, an otolaryngologist, who testified that he did not believe the death was accidental—that a child could wad up paper towels of that size and put it down his throat.
In December 2011, Judge Baird granted the writ and ordered Jimenez’s convictions vacated.
The judge ruled that Martinez had provided an inadequate legal defense for Jimenez by hiring Dr. Kanfer and for not seeking additional funds for a better expert.
Judge Baird said that Kanfer was worse than having no expert at all. “In my thirty years as a licensed attorney, twenty years in the judiciary, this Court has never seen such unprofessional and biased conduct from any witness, much less from a purported expert,” the judge ruled.
The court noted, “While Dr. Kanfer gave testimony generally consistent with the history of an accidental choking, he lacked the pediatric specialization and the clinical experience to render a reliable and persuasive opinion that [Bryan] accidentally choked on the wad of paper towels….Because of [Dr. Kanfer’s] lack [of] pediatric training or specific clinical expertise in choking, Dr. Kanfer carried little weight at trial, and was clearly outweighed by the trial testimony of Dr. John Boulet, Dr. Aldridge, Dr. Alexander and Dr. Peacock.”
Baird’s ruling was a recommendation to the Texas Court of Criminal Appeals (TCCA). In April 2012, the TCCA declined to sustain Judge Baird’s recommendation and ordered Jimenez’s convictions to stand.
“The additional experts that [Jimenez] has now produced are perhaps even more qualified than Dr. Kanfer, but she has not shown how their testimony would be significantly different or more persuasive that Dr. Kanfer’s,” the court said.
Later that year, Judge Jon Wisser, who had presided over Jimenez’s trial, wrote a letter to Rosemary Lehmberg, then the Travis County district attorney. In the letter, Judge Wisser expressed concern that Jimenez had been wrongfully convicted. “I believe now,” the judge wrote, “as I did at the time of the trial, that there is a substantial likelihood that the defendant was not guilty.”
Benjet filed a petition seeking leave to appeal the TCCA decision to the U.S. Supreme Court. The petition was denied.
Benjet and attorney Sara Ann Brown then filed a federal petition for a writ of habeas corpus.
The case stretched out for months, then years. In 2018, U.S. Magistrate Andrew Austin recommended that the writ be granted on the grounds that Jimenez had not received an adequate defense.
Magistrate Austin noted that Jimenez was seven months pregnant at the time of Bryan’s death, she had a one-year-old daughter, Brenda, and that she had given birth to a son, Emmanuel, while in jail. “If in fact Jimenez is not guilty of this offense—something both the trial and habeas judges appear to believe and for which there is much evidence—the injustice done here is indeed profound,” Magistrate Austin declared.
In February 2020, U.S. District Judge Lee Yeakel agreed and ordered that the writ be granted, that Jimenez’s convictions be vacated, and that the state either dismiss the case or retry it.
At the same time, however, the Travis County Conviction Integrity Unit (CIU) began a review of the case. The CIU considered a “Consensus Statement” presented by the defense. The statement, from four leading pediatric otolaryngologists, concluded that Bryan’s death was an accident. Among the conclusions by this team of experts: the gag reflex, which the prosecution’s trial experts claimed would have prevented Bryan from ingesting the wad of papers, in fact would pull the wad further into the child’s throat.
Nonetheless, the prosecution said it would retry the case.
In January 2021, the defense team, which now included several attorneys, including Potkin, filed another petition for habeas corpus in Travis County Criminal District Court. This petition included the Consensus Statement as well as an affidavit from Dr. Peacock saying that she now believed “it is possible that [Bryan’s] death was accidental.” Dr. Peacock said she recognized the “specialization and expertise” of the authors of the Consensus Statement “in blocked airways of children and the biological mechanisms at play in pediatric airway blockage situations.”
On January 27, 2021, following an evidentiary hearing, Travis County Criminal District Judge Karen Sage granted the writ and recommended that Jimenez’s convictions be vacated. Jimenez was released on bond that day.
On May 31, 2023, the TCCA granted the writ and ordered the convictions vacated. “While we do not agree that [Jimenez] has established [that] affirmative evidence exists of her actual innocence, we do agree she is entitled to relief [based] on false testimony,” the court ruled.
On August 7, 2023, the prosecution dismissed the charges.
– Maurice Possley
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