Court Dismisses Expert Witness Lawsuit Against Professional Association

Expert Witness Testimony Frees Woman Unjustly Convicted of Murder

Written on Tuesday, February 23rd, 2021 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness, Working with Experts

Last year, ExpertPages called attention to the difference that expert witnesses might have made in the prosecution of Rosa Jimenez. Prosecutors in Travis County, Texas claimed that Jimenez caused the death of a child by stuffing paper towels down his throat.

No witness saw Jimenez place paper towels in the child’s mouth, but medical experts testified that no child would be capable of swallowing a wad of paper towels. The experts cited no studies and conducted no experiments to support their opinions.

An ER doctor testified that the child’s gag reflex would have pushed the wad out of Bryan’s mouth if it had not been forced down his throat. A forensic pathologist testified that Bryan’s throat was too narrow to ingest the paper towels. The other two experts simply testified that the towels could not have become lodged in the child’s throat accidentally.

As it now concedes, the prosecution’s case rested entirely on the testimony of its medical experts. The Travis County Conviction Integrity Unit of the District Attorney’s Office now admits that its prosecutors “presented  no  evidence  of  motive,  prior  mistreatment,  substance  abuse,  or  any  other  evidence  to  support  its  theory that [Jimenez] perpetrated an unprecedented attack on a young boy  in  her  care.”

Jimenez’s defense attorney was not given the funding it needed to present highly qualified experts. The defense managed to call a medical examiner who opined that the choking could have been accidental, but the expert had no pediatric training and did not belong to any forensic science organizations.

The one-sided presentation of expert testimony convinced the jury of Jimenez’s guilt. A judge sentenced her to 99 years in prison. Until recently, her efforts at overturning her conviction were consistently rebuffed.

State Concedes New Expert Evidence Is Persuasive

With the help of the Innocence Project, Jimenez marshaled new expert testimony to refute the opinions of the prosecution experts. Her attorneys gathered affidavits from four leading pediatric otolaryngologists: Dr. Michael J. Rutter, Dr. Douglas Sidell, Dr. Ron Mitchell, and Dr. Karen B. Zur. All of the experts specialize in pediatric airways, including the removal of foreign bodies from a child’s airway. They all agreed that a child can accidentally swallow the quantity of paper towels found in the child’s throat.

In addition, the doctors all agreed that it is very unlikely that one person, acting alone, would be able to stuff paper towels down a child’s throat. One of the doctors noted that he can’t even place a tongue depressor in a struggling child’s mouth without the assistance of another adult.

In addition, a prosecution expert, Dr. Elizabeth Peacock, admitted that her testimony was mistaken. She no longer believes that the child’s death could not have been accidental. After reviewing the information provided by the defense experts, she conceded that their knowledge of pediatric airways is superior to her own.

While the Conviction Integrity Unit, perhaps as a face-saving measure, suggested that the medical understanding of pediatric airways has evolved since Jimenez’s 2005 trial, qualified experts could likely have offered the same opinion at Jimenez’s trial if she had received the expert witness funding she needed. They could at least have testified to the absence of scientific support for the opinion that it would be “impossible” for a child to swallow paper towels accidentally.

Jimenez Released

Texas Judge Karen Sage agreed that Jimenez is innocent. She ordered Jimenez released on bond pending further proceedings in the case. Jimenez was released just in time to attend her daughter’s wedding.

The Innocence Project reports that U.S. Immigration and Customs Enforcement officers had told Jimenez that “we’re taking you to Mexico and doing an expedited deportation.” Perhaps realizing that taking an innocent person into custody after her release by a federal judge would not reflect well on an agency that has been directed to take a more compassionate approach to immigration enforcement, USCIS changed its mind and decided not to hold Jimenez in custody. Her freedom, at least for the moment, has been made possible by diligent defense lawyers who found the expert witnesses that Jimenez needed.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

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