Foley Attorneys Help Secure New Trial Recommendation for Convicted Murderer

A team of Foley attorneys has helped persuade a U.S. magistrate judge to recommend a new trial for a Texas woman serving a 99-year prison sentence for the 2003 murder of a 21-month-old boy.

Magistrate Judge Andrew Austin, in a 50-page report and recommendation, found that Rosa Estela Olvera Jimenez was denied her constitutional right to present qualified medical experts at her 2005 trial who could have testified that Bryan Gutierrez’s death was likely a tragic accident.

Jimenez, then a pregnant 20-year-old with a 1-year-old daughter, was babysitting the boy when he choked to death on a wad of paper towels. The defense contended that Bryan, who liked to play with paper, put the paper towels in his mouth and accidentally swallowed them while Jimenez made lunch. But prosecutors, who maintained that it was physically impossible for a 21-month-old to have accidentally swallowed such a large amount of paper, insisted that Jimenez must have stuffed the wad down his throat.

The Foley team, which includes partner Joanne Early, senior counsel Rachel Kingrey O’Neil, and associates Sara Brown and Sadie Butler, have spent five years working on the case pro bono. Jimenez is also being represented by the Innocence Project.

In his report and recommendation, Austin said that any time person stands convicted of a crime she did not commit, a significant injustice has occurred. But if Jimenez is not guilty of the crimes of which she’s been convicted, he added, the injustice is particularly acute.

“The record does not reflect what happened to her baby daughter when she was arrested, or who took custody of the child she delivered in jail. But those children are now 15 and 16 years old. 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,” he wrote. “It is this type of injustice that the Great Writ is meant to prevent, and the issuance of that writ here is well-warranted.”

His recommendation will now be reviewed by U.S. District Judge Lee Yeakel, who will consider any objections by the parties and then decide whether to vacate Jimenez’s conviction and order a new trial. The case may then be appealed to the Fifth U.S. Circuit Court of Appeals.

Read the additional coverage:

KXAN, “Heated Hearing Over Future of  Babysitter Convicted in Austin Child’s Choking Death”

Statesman, “Judge Questions Plan for New Trial in Overturned Murder Conviction”

Statesman, “U.S. Judge Backs New Trial for Rosa Jimenez in Boy’s Choking Death”

Statesman, “Conviction Tossed Out in Death of 1-Year-Old”