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After Eighteen Years Behind Bars for a Crime She Didn’t Commit, Rosa Jimenez Is Finally Free

Rosa Jimenez speaks to the press shortly after her release on January 28, 2021.
Rosa Jimenez speaks to the press shortly after her release on January 27, 2021.

Robin Jerstad for AP/Innocence Project

Rosa Jimenez didn’t sleep at all on Tuesday night. A judge had ruled earlier that day that the 38-year-old, who had been behind bars since 2003 for murdering a child, was likely innocent and deserved a new trial. The judge also allowed her attorneys to post bond. From a cell at the Mountain View Unit in Gatesville, Jimenez thought she might finally be going home to Austin soon. It would probably take a few days, she knew. More than anything, she thought, she wanted to get out in time to go to the Saturday wedding of her daughter, Brenda, who had been taken from her arms when the girl was a year old. 

In the morning, a guard told Jimenez that she was actually being released that very hour—and to get ready. But it wasn’t her lawyers who pulled up to the prison to take her away. It was a van from U.S. Immigration and Customs Enforcement (ICE). Jimenez wasn’t going home to Austin; she was being deported back to Mexico, a country she hadn’t seen since 1999. 

As I wrote last year, Jimenez was seventeen when she left her home in Ecatepec, a suburb of Mexico City, crossed the Rio Grande, and made her way to Austin, looking for a better life. She fell in love, had a daughter, worked as a babysitter—and then, in 2003, a 21-month-old in her care choked on a wad of paper towels. The wad was the size of a large egg, making police and doctors suspicious, and after the boy died, Jimenez (who was seven months pregnant with her second child) was arrested and tried for murder. Though she said the child died accidentally, the jury believed the police, ER doctors, and pediatricians who said it would have been impossible for the boy to cram the paper down his throat himself. Jimenez was sentenced to 99 years in prison.

But over the next decade and a half, numerous state and federal judges who looked at her case began piping up: something wasn’t right. There was no physical evidence against Jimenez, who also had no motive, no criminal record, and no history of violence. Her appellate lawyers hired experts who explained that, in fact, kids stuff all kinds of things down their throats—even large things—and that it would have been extremely hard for Jimenez to force such a wad down the boy’s throat. An accidental choking wasn’t impossible, they said; it was likely. The closer these judges looked, the more they doubted Jimenez’s guilt—as well as whether any crime had been committed. Twice Jimenez was granted a new trial, but twice the state of Texas fought back, so she never received one. By early 2020, no fewer than five judges had said that Jimenez deserved a new trial and was likely innocent.

Then, on Tuesday, Jimenez got judge number six—and this time she would finally get the justice she had sought. Karen Sage of the 299th district court in Austin held a public hearing via Zoom at which three experts in pediatric airways testified how their research and experience showed that it was much more likely that the boy had stuffed the towels down his own throat. “Bad things happen,” summarized Mike Rutter, a surgeon and professor of pediatric otolaryngology at Cincinnati Children’s Hospital, “and it doesn’t always mean someone is to blame.”

Jimenez’s legal team, led by Vanessa Potkin of the New York City–based nonprofit the Innocence Project, asserted that false evidence had been given at the trial—and that their client was innocent. Unlike at previous proceedings, this time Jimenez’s defense lawyers were joined by the prosecutor, newly elected Travis County district attorney José Garza, who agreed that Jimenez had been wrongly convicted. After two and a half hours, Judge Sage had heard enough. “I am in firm agreement,” she said, “based on the testimony and the exhibits I have heard, that at the very least Miss Jimenez is entitled to a new trial—at the very least—if she is not in fact innocent of this crime.” (The judge’s ruling must still be ratified by the Texas Court of Criminal Appeals.) Sage announced that she was allowing Jimenez to post bond.

Back at Mountain View, Jimenez heard the news from Brenda, now 20, who had been watching the hearing. Jimenez told her, “Hold on,” then put down the phone and called out the news to her dorm. “Everybody started screaming and jumping around,” she told me. “They were yelling, ‘You deserve it, Rosa!’ and ‘We’re so happy for you!’” She also spoke with Potkin, who affirmed the good news and told her that there was a process involved—it might take a while to actually free her. But Wednesday morning at 6 a.m. the attorney boarded a plane to Austin. Though Jimenez had been granted new trials twice before, this time, she thought in her cell, it was really happening. This time she had the DA on her side, helping push her case forward. Jimenez, who suffers from stage-four kidney disease, could now finally get decent medical care—including a transplant. Being freed would save her life. 

Rosa (right) with her daughter Brenda shortly after her release on January 28, 2021.

Rosa Jimenez, right, with her daughter, Brenda, shortly after her release.

Vanessa Potkin

Rosa with her son Aiden shortly after her release on January 28, 2021.

Rosa Jimenez with her son, Aiden, shortly after her release.

Vanessa Potkin

Left:

Rosa Jimenez, right, with her daughter, Brenda, shortly after her release.

Vanessa Potkin

Right:

Rosa Jimenez with her son, Aiden, shortly after her release.

Vanessa Potkin

As convicted killers go, Jimenez is the sweetest you will ever meet. I found her gentle, humble, and direct, both in person and in letters. “I’m not going to give up,” she wrote me in September. “Some days I feel discouraged, sad, angry all at the same time, but I have faith and hope that all this is going to come to pass.” 

I wasn’t the only one who thought so. Lucía Gajá, a filmmaker from Mexico City, found Jimenez such a compelling subject that she made a documentary about her (2007’s Mi Vida Dentro) and is working on a second. “She’s very strong,” Gajá said. “She’s found a way to not be sad all the time. I mean, of course she’s sad, but you see her, and she lights up. She’s a beautiful spirit. She has a lot of love inside her.”

Jimenez’s strength would be tested to its limits on Wednesday. Potkin and the other lawyers on the defense team had already contacted prison officials about the logistics of picking her up. The lawyers knew they would have to deal with ICE too. Jimenez had been on the agency’s radar for years—during her recent appeals, it had issued an immigration detainer, an order to local law enforcement to hold her for 48 hours if she were released. Her lawyers planned to approach the agency about the arduous process of rescinding the detainer. Then on Wednesday morning Potkin—by now in Austin—learned from prison administrators that ICE agents were coming to Mountain View that morning, and Jimenez was being driven to Mexico. It was, an ICE official emailed the legal team, an “expedited deportation.” Potkin was crushed. “We’d come to this moment where the truth was finally acknowledged,” she says. “Now ICE was deporting her.”

Potkin didn’t get a chance to warn her client. The ICE van arrived at the back gate of the prison. Jimenez was handcuffed and put inside; she had no chance to say goodbye to any friends. The agents didn’t tell her where they were going, but they stopped in nearby Waco and took her to the ICE detention facility, where she was fingerprinted and told she was being deported to Mexico. The reality of Jimenez’s situation hit her hard. She’d just spent eighteen years fighting various agents of the American government—from police to prosecutors—and she had gotten a half-dozen respected judges on her side, demanding her freedom. She had won, or so she thought. Now she had to battle ICE, the most implacable American institution of all.

The van headed south on Interstate 35. Jimenez thought about the homeland that she hadn’t seen since she was a teen. What would she do? She didn’t have any money or spare clothes. Meanwhile, her attorneys were scrambling, talking to staff at ICE and the Mexican consulate. The consulate knew Jimenez’s case well. When she had first been arrested in 2003, she had called its Austin office, and officials had visited her in prison and attended her hearings. The Mexican government had taken an active role in her defense, financing her first appeals and speaking out on her behalf. “The citizens of Mexico and their government leaders have been shocked by Rosa Jimenez’s treatment in the Texas criminal-justice system,” Enrique Peña Nieto, then president-elect of Mexico, wrote in a brief filed in support of a 2012 appeal to the Supreme Court.

Jimenez was a special case, and so, after a flurry of phone calls between lawyers and American and Mexican officials, as the van cruised somewhere south of Waco, the consulate successfully intervened. “We always do it if we detect a humanitarian-type case,” said Felix Herrera, consul for protection and legal affairs at the Austin office. “We always collaborate with ICE.” (Asked how ICE approached the Jimenez case, the agency told Texas Monthly, “ICE makes custody determinations on a case-by-case basis, in accordance with U.S. law and Department of Homeland Security policy. … Individuals can be released from custody based on the facts and circumstances of their cases.”) When the consulate shared the news with Potkin, she got in her rental car and headed south. 

Jimenez, meanwhile, wasn’t told about any of the negotiations on her behalf. She sat in the back of the van and watched as it exited the freeway into San Antonio and parked in the lot of a large building. She was taken inside and told for the second time that day that she was being released. She had no idea what to think—especially when the agent told her, “Someone needs to come pick you up.” Jimenez borrowed a phone and called Brenda, who gave her Potkin’s number. Potkin answered and Jimenez told her they were actually releasing her—but she needed a ride. “I know,” the lawyer replied. “I’m here.” 

Potkin came inside to arrange the official transfer—and Jimenez fell into her arms. “I started crying like a little baby,” she told me. Potkin didn’t have to tell her the obvious: She was finally free. The two women walked out and saw a crew of news reporters with cameras and microphones. Her eyes still red, Jimenez, wearing a striped pullover and holding two bags with all her worldly possessions, approached them. She looked exhausted yet spoke calmly, thanking her lawyers, the consulate, and Garza. Eighteen years behind bars had not eroded her kindness, and she gamely answered reporters’ questions, smiling broadly when one journalist asked her a question in Spanish. “I speak more English now than Spanish,” she said in English, then gamely reverted to her mother tongue to answer his question.

Asked what she was going to do first, Jimenez said she’d be going to church. And she wasn’t going to miss Brenda’s wedding, which will take place in College Station on Saturday. “The most important time of her life,” she said, as her eyes filled with tears, “and I’m going to be there.” 

Jimenez was once one of the most reviled people in Texas—a child killer from another country. Now reporters were hanging on her every word. She was asked how she had changed in prison. The ordeal taught her a great deal about gratitude, she said. “Before, you just go through the world and you don’t stop and admire the little things. Now, they’re there, you’re able to see them and value them and know that this was taken away from you—but you have it now. I felt that God has opened doors—and you have to value every single moment from now on.” 

Rosa Jimenez with her attorney Vanessa Potkin shortly after her release on January 21, 2021.

Rosa Jimenez and her attorney, Vanessa Potkin, speak to the media shortly after her release on January 27, 2021.

Robin Jerstad for AP/Innocence Project

The Innocence Project is working on getting Jimenez a place to live and a nephrologist, or kidney doctor. She needs dialysis and, eventually, a transplant. And she needs to connect with her children and her mother, who is still in Mexico and whom she hasn’t seen since 2005. Because she had been convicted of killing a child, Jimenez wasn’t allowed to even hold her kids after she went to prison. While other mothers would hug and kiss their children on visiting day, she could only talk to hers through the Plexiglass window. As they grew up, they grew away from her. Last summer she and her son, Aiden, then 16, finally began talking regularly. He created an Instagram account titled FreeRosaJimenez. “Our phone calls are like a big roller coaster,” Jimenez wrote me in a letter. “We never had a relationship, and right now we are trying to learn each other.” It wasn’t until a year ago that Jimenez was able to hug Brenda, who had just turned 18. The two have grown closer ever since. 

Wednesday night, after one of the longest days of her life, Jimenez, staying in a home near downtown Austin, lay in bed staring at the ceiling. “I didn’t want to go to sleep,” she told me. “I didn’t want to go to sleep and wake up in prison again, find out all this was a dream.” Finally, around 3 a.m., she got up. The idea of going outside came to her. In prison, she could only leave her room at certain times. But now she opened the door and walked out onto the porch and into the night. She looked around at the other houses. She stared up at the full moon. 

It was chilly, so after a few moments she walked back in, lay down again, and waited patiently for the sun to rise. 

Tags: Crime, News, Child Abuse, Rosa Jimenez, the Innocence Project, Wrongful conviction

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