In Texas Conviction, an Immigrant Rallying Cry

NEW YORK TIMES 

By Ethan Bronner

September 26, 2012

http://www.nytimes.com/2012/09/27/us/in-texas-conviction-an-immigrant-rallying-cry.html?ref=todayspaper

In January, Rosa Jimenez, an illegal Mexican immigrant, will have spent 10 years in prison in the bleak scrublands of Central Texas for a crime she says she did not commit: forcing a wad of paper towels down the throat of a toddler in her care, making him choke and ultimately die.

She sits here in the Mountain View Prison Unit, a maximum-security facility for women, folding prison laundry, reading Bible stories and praying for exoneration while her two children are brought up by foster parents. To some, Ms. Jimenez has become a symbol of the inequality of the American criminal justice system — a process that began with a 2007 Mexican documentary that showed the prosecutor saying of Ms. Jimenez, “Despite being from Mexico, she’s very intelligent,” and that enraged the mayor of her hometown.

At her trial, the defense’s medical witness — 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 (and later acknowledged doing so on the witness stand) — came off as an amateur.

Thousands of poor Mexicans are in American prisons and, like Ms. Jimenez, were heavily outlawyered and outspent at trial. Her story is that of many like her, yet she has been cast as a kind of hero by some.

But not by Victoria Gutierrez, also an illegal Mexican immigrant and the mother of the dead child.

“Suddenly this is all about her coming here and making a life for herself as if she were the victim,” Ms. Gutierrez said. “We all did the same thing. This is not about her. It’s about my son. Her children are going to school. My son is dead.”

Still, the renewed attention on Ms. Jimenez’s case led to donations to pay for new lawyers and experts, and a Texas appeals judge eventually ordered a new trial. In April, however, the state’s Court of Criminal Appeals overturned that ruling, saying that while Ms. Jimenez’s lawyers were indeed “outclassed and outmatched,” she had a constitutional right only to a decent defense, not to a great one.

Now the United States Supreme Court is reviewing a petition for a retrial, a filing that was joined by Mexico’s president-elect, Enrique Peña Nieto, who contends that there is a widespread perception that Mexican nationals cannot get a fair trial in Texas, and says that is “bad for the citizens of both our countries.”

While the Supreme Court ponders the retrial request, the judge in the original trial, Jon Wisser, wrote an unusual letter to the district attorney last month saying that in his view, there was “a substantial likelihood” that Ms. Jimenez was not guilty. The Supreme Court has instructed the district attorney to respond before it takes any action.

It has been a remarkable set of developments for what began as a relatively routine case. Charlie Baird, the judge whose retrial order was reversed, believes Ms. Jimenez’s story has received such attention because it demonstrates something fundamental and troubling.

“This case shows that the poor are not on an equal footing — it’s not a fair fight,” said Mr. Baird, who has also served on the Criminal Court of Appeals and is now retired. “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.”

Of the pathologist the defense eventually hired, “it would be hard to imagine a worse witness,” Mr. Baird said. “That’s what you end up with when you are given a pittance to hire an expert.”

The case of Ms. Jimenez offers lessons not only about the limits of the criminal justice system but about the lives of some of the millions of illegal Mexican immigrants striving to make it in this country. In an often tearful hourlong interview in prison, Ms. Jimenez recalled her decision to leave Mexico in 1999 at 17 when she came home hungry one day from school and found the refrigerator empty.

“My mother was a single mom, and I knew I had to do something to help her,” Ms. Jimenez said, sitting in a white prison uniform, speaking in careful, measured English learned in prison. “I threatened to quit school if she didn’t let me go to America.”

She arrived in Austin, Tex., where she worked as a housekeeper in a Hampton Inn and began studying for her high school equivalency diploma. Within a few years, she had a daughter, Brenda, and was pregnant with her son. She agreed to baby-sit for a neighbor, Ms. Gutierrez, who dropped off her son, Bryan, then a little over a year old, while she went to work at a restaurant with her brother.

Ms. Jimenez baby-sat for Bryan for seven months without incident. But one day in early 2003, while she was cooking and the two children were playing, she says, Bryan began to choke and turn blue. Ms. Jimenez says she tried to put her finger down his throat to remove the obstruction. She says she ran with him to a neighbor’s, where they called 911.

Emergency workers eventually removed a wad of paper towel from Bryan — five attached sheets, balled up and bloodied. By then, he had lost enough oxygen to be severely brain-damaged. His mother took him off life support three months later.

Medical experts brought in by the state testified that no 21-month-old could have put that much paper towel down his own throat, that his gag reflex would have stopped him. The only possible culprit, they said, was Ms. Jimenez, who, they surmised, must have grown frustrated with his crying. The jury agreed. She was convicted of murder and sentenced to 99 years in prison. She is eligible for parole in 2033.

At a 2010 hearing on whether there should be a retrial, 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. In their view, his death was most likely accidental.

Mr. Wisser, the trial judge, said in his letter to the district attorney last month that Ms. Jimenez had no motive, no history of such activity and no evidence of substance abuse.

“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,” he wrote.

Because Ms. Jimenez is here illegally, her mother, who sells tamales back home in Ecatepec, a suburb of Mexico City, has been denied a visa to visit her in prison. But Ms. Jimenez does have support. Consular officials visit, as do her children. Ms. Gutierrez, who has a 4-year-old daughter now, still lives in Austin with her brother, Cerafin Gutierrez, who was like a surrogate father to Bryan. They both work long hours and pay their taxes. They speak excellent English. They consider themselves Americans.

When asked whether Ms. Jimenez might have been wrongly convicted, Mr. Gutierrez walks to the kitchen and pulls off five sheets from the roll of paper towels. Can anyone imagine a child putting that much paper down his own throat, he asks.

Ms. Gutierrez weeps softly through the conversation, a drawing of Bryan on the wall above her head. When she turns on the Spanish-language television news, she sometimes hears reports about how Rosa Jimenez was wrongly convicted and is now rotting unfairly in prison.

Ms. Gutierrez said she never believed the death was an accident. “He never put paper towel in his mouth,” she said of Bryan. “He wasn’t retarded. He was a normal baby. She’s become some kind of symbol, but she’s not my symbol. Why isn’t the president of Mexico concerned about my baby?”

Ms. Jimenez, who spoke no English when her trial took place, now prefers reading in English. In prison, she has been on a waiting list for five years to take a class. Lately she has been reading about the women of the Bible.

She said she was moved by the story of Bathsheba, whose husband was sent by King David to die at the battlefront so David could take her as his wife.

“I imagine her saying to David, ‘You can take my body, but nobody can take my mind,’ ” Ms. Jimenez said.