Latest / Wrongful Conviction / #498 Maggie Freleng with Rosa Jimenez

Transcript

#498 Maggie Freleng with Rosa Jimenez · Wrongful Conviction

0:05
Speaker 1: All Rosa jumenaz Ever wanted was to be a mom.
0:09
Speaker 2: I read in an article somewhere about you that your
0:13
Speaker 2: daughter has a rose tattoo for you.
0:17
Speaker 3: Oh yeah, she does. To say that in the way
0:23
Speaker 3: that you always represent me by Roses.
0:26
Speaker 1: I first spoke to Rosa in twenty twenty for my
0:28
Speaker 1: podcast Unjust and Unsolved. She was in prison at the time.
0:33
Speaker 3: This call is being recorded and this subject to monitoring.
0:36
Speaker 1: I was actually scheduled to meet with Rosa in person,
0:39
Speaker 1: but because of COVID nineteen, all prisons were on lockdown.
0:43
Speaker 1: She called me the day we were supposed to meet.
0:45
Speaker 1: I'm so bombs. I really wanted to meet you in person.
0:49
Speaker 3: They say, extend that day.
0:51
Speaker 1: Are you staying safe?
0:53
Speaker 3: Yeah? Yeah, I was six the first week bomb Okay.
0:56
Speaker 1: Now, Rosa was lucky in prison. COVID nineteen was devastating.
1:01
Speaker 1: Incarcerated people died at over three times the rate of
1:05
Speaker 1: the free population. So I have cho and Rosa was
1:09
Speaker 1: at the highest risk. She was immunal, compromised from kidney failure.
1:15
Speaker 1: When she first got to prison, Rosa got hurt working
1:17
Speaker 1: in the fields picking vegetables and mowing grass. It was
1:21
Speaker 1: lots of walking and physical labor, and one day she
1:24
Speaker 1: felt a pain in her hip and went to the doctor.
1:27
Speaker 3: It was telling that you looked with the doctors, they
1:30
Speaker 3: tell you that you were lazy and that you didn't
1:32
Speaker 3: want to work.
1:33
Speaker 1: Rosa was prescribed in a proxy in and ivy profen
1:35
Speaker 1: for the pain and sent back to work.
1:37
Speaker 3: So before I got to work, I used to just
1:40
Speaker 3: take one peel, then come up some work, take another
1:42
Speaker 3: appeal because I'm already learning to sleep.
1:46
Speaker 1: Years of doing this damaged her kidneys, and when I
1:49
Speaker 1: first talked to her in twenty twenty, not only was
1:52
Speaker 1: she in pain, but she was dying.
1:54
Speaker 3: If not even vacim given to better my kidney. So
2:00
Speaker 3: I asked him if she can give me a transpident.
2:03
Speaker 3: Then she said no because she said, I don't want
2:06
Speaker 3: to offend you or anything. But yet you as a
2:09
Speaker 3: prisoner and everybody in prison, can I get a kidney
2:14
Speaker 3: transfer or any kind of transman, because you are the
2:19
Speaker 3: lower of a society.
2:21
Speaker 1: In her late thirties, Rosa was facing down death from
2:25
Speaker 1: a prison cell, but soon her life would change.
2:29
Speaker 4: My name is Rosa Humanez and I was wrongly convicted
2:32
Speaker 4: of injury to a child and murder. I was eighteen
2:37
Speaker 4: years in.
2:38
Speaker 1: Prison for love of for good. This is wrongful conviction
2:42
Speaker 1: with Maggie Freeling today. Rosa Jimenez. Rosa Jimenez was born
2:54
Speaker 1: in October nineteen eighty two and raised just outside of
2:58
Speaker 1: Mexico City.
3:00
Speaker 4: Little town is cooed at the pic. We were very
3:07
Speaker 4: poor at that time when I was little.
3:10
Speaker 1: Rosa's mom, Estella was single with five kids to take
3:14
Speaker 1: care of.
3:15
Speaker 4: She used to sell tamales in Mexico came to sign laws.
3:23
Speaker 1: Estella says she worked every day for those sometimes until
3:30
Speaker 1: two am, to make sure all her children stayed in
3:33
Speaker 1: school and got their education.
3:36
Speaker 5: Get out and.
3:40
Speaker 1: Estella says she never had a holiday or weekend off
3:43
Speaker 1: while her kids were young. But she didn't let her
3:50
Speaker 1: kids drop out of school, and that's what matters. Estella
3:53
Speaker 1: was a proud woman, just like Rosa.
3:57
Speaker 4: No one is going to stop me. That's me.
4:01
Speaker 1: Rosa went to college for business and tourism. She wanted
4:04
Speaker 1: to own a restaurant with her mom.
4:06
Speaker 4: And then of course I wouldn't have a bunch of
4:08
Speaker 4: kids and get married and be happy. That was me
4:13
Speaker 4: Rosa seventeen year old Rosa.
4:16
Speaker 1: But Rosa found focusing on college was difficult when her
4:19
Speaker 1: family was struggling with bills. She remembers coming home from
4:22
Speaker 1: school one day looking for a snack.
4:25
Speaker 4: I was hungry. You opened the refrigerator and you was
4:28
Speaker 4: nothing there, and my mom was like, you're hungry, and
4:31
Speaker 4: I was like, no, I was just going to get iced.
4:35
Speaker 4: But then I realized in that moment, then my mom
4:37
Speaker 4: couldn't do it no more by herself, so I decided
4:40
Speaker 4: to come over here.
4:42
Speaker 1: At seventeen, Rosa decided she was going to drop out
4:45
Speaker 1: of school and come to the United States to work
4:47
Speaker 1: and send money back to her family. How did your
4:50
Speaker 1: mom feel about you coming to the United States.
4:52
Speaker 4: Oh, she didn't want me to come. She begged me
4:56
Speaker 4: and begged me to go to school. But you know,
4:58
Speaker 4: when you're young, you like, no, I know what I'm
5:02
Speaker 4: going to do. This is what I decided to do,
5:04
Speaker 4: and I'm going to do it and no one is
5:06
Speaker 4: going to stop you.
5:07
Speaker 1: Do you regret coming here?
5:14
Speaker 4: That's a hard question, yes and no.
5:24
Speaker 1: Life in the United States would turn out to be
5:27
Speaker 1: everything and nothing like Rosa had planned for. Rosa's stepfather
5:35
Speaker 1: lived in the United States, so Rosa's plan was to
5:37
Speaker 1: go to Austin Texas and get settled with him.
5:43
Speaker 4: My stepfather's sister had two kids in Mexico. One was
5:48
Speaker 4: seven and another one was six, and she asked me
5:51
Speaker 4: if I can bring her kids, and if I bring them,
5:55
Speaker 4: she was going to pay the coyote.
6:00
Speaker 1: Rosa didn't have the means to come to the United
6:02
Speaker 1: States legally, so she made the harrowing journey into the
6:05
Speaker 1: country with a coyote a human smugglers reels. Estella says
6:17
Speaker 1: she spent every day worried and restless. Is that binstino
6:26
Speaker 1: praying that her daughter made it out alive. It's Estella
6:33
Speaker 1: did not want her daughter to cross the border, but
6:35
Speaker 1: Rosa took those children and did it anyway.
6:39
Speaker 4: I brough those two kids and I pretend that they
6:42
Speaker 4: were my kids. I was the only female, well, the
6:45
Speaker 4: little girl and I were the only females. They were
6:49
Speaker 4: like twenty five mens, dirty, and.
6:52
Speaker 1: You're seventeen year old and I'm.
6:54
Speaker 4: Seventeen year old with two kids. It was really scary.
7:00
Speaker 1: She remembers. One instance, the whole group was staying in
7:03
Speaker 1: one room for the night.
7:04
Speaker 4: No one can lay down in the middle of the
7:06
Speaker 4: night because we're standing up. It's crowded like the little
7:11
Speaker 4: bathroom with thirty people, and.
7:14
Speaker 1: She says a guy tried to touch her.
7:16
Speaker 4: I tell the guy not too like, don't come too
7:18
Speaker 4: close to me, and the other guys to start getting
7:21
Speaker 4: mad because hey, you're gonna respect this girl, you know.
7:26
Speaker 4: They tell him that if he comes close to me
7:28
Speaker 4: again that they were going to beat him up.
7:30
Speaker 1: Another man protected her and took it upon himself to
7:33
Speaker 1: watch out for her and the kids the rest of
7:35
Speaker 1: the trip.
7:36
Speaker 4: It was an older guy. I don't even remember his
7:39
Speaker 4: name that he was like, oh, like a father figure
7:42
Speaker 4: kind of like he didn't like, was protecting me and
7:46
Speaker 4: the kids. I never seen him up again, but you've.
7:51
Speaker 1: Thought about him all these years.
7:52
Speaker 4: Yeah, Yeah, sometimes I feel like they angels, you know,
7:57
Speaker 4: Like I mean that you show up to protect you.
8:01
Speaker 1: And your guardian angel.
8:02
Speaker 4: Yeah.
8:04
Speaker 1: When Rosa made it to the US, things didn't work
8:07
Speaker 1: out living with her stepfather, so she wound up with
8:09
Speaker 1: some friends she'd met at ESL school. She worked several jobs,
8:13
Speaker 1: including at a food truck.
8:15
Speaker 4: That was the worst experience ahead.
8:18
Speaker 1: Like in a food truck, Yes, how come.
8:22
Speaker 4: They're go and pick you up like at two o'clock
8:24
Speaker 4: in the morning and you don't finish working by ten pm,
8:29
Speaker 4: so you only have like a little gap to go
8:33
Speaker 4: to sleep. And it was horrible. The payment was like,
8:37
Speaker 4: I'm not even liing to you, like six dollars and
8:40
Speaker 4: fifty cents back then.
8:42
Speaker 1: But Rosa kept hustling and sending money back to her mom.
8:46
Speaker 4: That was my whole purpose in here to help her.
8:49
Speaker 1: And then Rosa met a boy, and her purpose changed.
8:56
Speaker 4: At that moment. At that he was myself.
8:58
Speaker 1: Eighteen year old feet well, like he.
9:01
Speaker 4: Is the man that I wanted to be with the
9:03
Speaker 4: rest of my life.
9:05
Speaker 1: How long were you here before you got pregnant?
9:08
Speaker 4: Now even a.
9:09
Speaker 1: Year she was still a teenager and she was pregnant,
9:15
Speaker 1: but she was thrilled. Nine months later, baby Brenda was born.
9:19
Speaker 1: In two thousand and two, Rosa's dream was coming true.
9:23
Speaker 1: If she couldn't get her degree, she wanted to be
9:26
Speaker 1: a wife and a mom. A year later, Rosa was
9:36
Speaker 1: pregnant again and had stopped working full time. She picked
9:40
Speaker 1: up babysitting gigs here and there, and eventually she found
9:43
Speaker 1: a steady gig caring for a friend's child a couple
9:45
Speaker 1: times a week. Brian Gutierrez was almost two years old.
9:50
Speaker 1: A few months older than Brenda, so it was perfect
9:53
Speaker 1: for Rosa because she gat care for her daughter and Brian.
9:56
Speaker 1: People who knew Rosa said that she loved that little
9:59
Speaker 1: boy like her own. On the morning of January thirtieth,
10:06
Speaker 1: two thousand and three, Brian's mom dropped him off with
10:09
Speaker 1: Rosa on her way to work at nine am. He
10:12
Speaker 1: and Brenda napped, and when they woke up, Rosa made
10:14
Speaker 1: them snacks, beans, egg cheese, and pico de gayo. Rosa
10:18
Speaker 1: says that both kids had colds that day and she
10:21
Speaker 1: was constantly wiping their noses. She used a roll of
10:24
Speaker 1: paper towels, and at some point she tossed the role
10:27
Speaker 1: in the couch, thinking nothing of it. She then let
10:30
Speaker 1: them watch TV and play while she made lunch. It
10:34
Speaker 1: was afternoon and Rosa was cooking in the kitchen. She
10:37
Speaker 1: says it'd been about ten minutes since she had last
10:39
Speaker 1: checked on the kids. Then suddenly, Brian walks in slowly
10:44
Speaker 1: with a hand on his throat. He appeared to be choking.
10:48
Speaker 1: Rosa says she picked up Brian and rushed to the bathroom,
10:51
Speaker 1: slapped him on the back, then tried to pull out
10:53
Speaker 1: whatever was stuck in his throat, but nothing, so she
10:57
Speaker 1: ran to a neighbor's apartment for help. When emergency responders arrived,
11:02
Speaker 1: they were able to extract a wad of bloody paper
11:05
Speaker 1: towels from Brian's throat. Later it was measured at two
11:09
Speaker 1: and a half inches, almost the size of a tennis ball.
11:13
Speaker 1: When they got Brian to the hospital, he was alive
11:16
Speaker 1: but in critical condition, and police wanted to take Rosa
11:20
Speaker 1: to the station for questioning.
11:24
Speaker 4: I called Fidel and I tell him, hey, this happened,
11:29
Speaker 4: and you need to come home because they want me
11:33
Speaker 4: to go to the police's station to give a statement,
11:37
Speaker 4: but you need to take care of Brenda.
11:41
Speaker 1: At the station, detective Eric Dela Santos interviewed Rosa. He
11:45
Speaker 1: wanted to know how such a large wad of paper
11:48
Speaker 1: towels wound up down Brian's throat. In his mind, there
11:52
Speaker 1: was no way Brian could have swallowed that himself. It
11:55
Speaker 1: had to have been forced down. Della Santo's question Rosa
12:00
Speaker 1: for five hours, insisting she had shoved the paper towels
12:04
Speaker 1: down Brian's mouth. He said Rosa was mad that the
12:06
Speaker 1: kids were playing with the paper towels, shredding them and
12:09
Speaker 1: tossing them around the house. Rosa was terrified. Remember she
12:15
Speaker 1: was a new immigrant. Was everything confusing for you? Did
12:19
Speaker 1: you know you had rights?
12:20
Speaker 4: I didn't know I have rights. I didn't know anything.
12:24
Speaker 1: Rosa says she was unaware she didn't have to answer
12:27
Speaker 1: Delo Santo's questions, or that she had a right to
12:29
Speaker 1: a lawyer.
12:30
Speaker 4: In Mexico is so corrupted. You know, you bribe the
12:34
Speaker 4: police and you free, no matter why you do, you free.
12:38
Speaker 4: So I'll come to this country and I don't have
12:43
Speaker 4: knowledge or anything. The only thing I know is where
12:46
Speaker 4: I came from. So I think maybe if I have money,
12:53
Speaker 4: I can bribe the police, and you know, they let
12:56
Speaker 4: me out. I don't know. So I didn't have no knowledge.
12:58
Speaker 4: I don't have I didn't have anything. I didn't mean
13:01
Speaker 4: speak English, nothing.
13:03
Speaker 1: Dela Santo spoke Spanish, but Rosa says it was very
13:07
Speaker 1: difficult for her to communicate with him. While the government
13:10
Speaker 1: has to provide trained interpreters at trial, an interpreter isn't
13:14
Speaker 1: constitutionally guaranteed during police questioning, so it was just Delo
13:19
Speaker 1: Santos and Rosa and her head was spinning. Rosa was
13:23
Speaker 1: worried about Brian, and then she thought about Brenda. She
13:27
Speaker 1: begged Dela Santos to let her use the phone to
13:30
Speaker 1: call Fidel.
13:31
Speaker 4: When I call, he said, the CPS took Brenda like
13:35
Speaker 4: child Protective services, and I was just freaking out because
13:41
Speaker 4: I didn't know what child protective Services was or anything.
13:46
Speaker 4: So I was freaking out.
13:48
Speaker 1: When I first spoke with Rosa, she explained that desperation
13:51
Speaker 1: to me.
13:52
Speaker 3: I was like, like me, I can have Blenda back
13:58
Speaker 3: if I said whatever they wanted to. You wanted to
14:03
Speaker 3: say whatever you've been saying. Man, I say it, you know,
14:07
Speaker 3: but just let me try Branda back.
14:10
Speaker 1: Rosa eventually asked Dela Santos what would happen if she
14:13
Speaker 1: told him she did it, and he told her that
14:16
Speaker 1: she'd be able to go home and see her daughter,
14:19
Speaker 1: and after hours of questioning, Rosa says she considered just
14:23
Speaker 1: saying that she did it. Maybe when she tried to
14:26
Speaker 1: pull the paper towels out, she accidentally shoved them in further,
14:30
Speaker 1: but she didn't actually admit to hurting Brian and wouldn't
14:34
Speaker 1: speak further until she saw Brenda. So Dela Santos drove
14:37
Speaker 1: Rosa home while other officers prepared a warrant, and a
14:41
Speaker 1: few hours later, in the early morning hours of January
14:44
Speaker 1: thirty first, Rosa was arrested for injury to a child.
14:51
Speaker 1: Rosa sat in jail for months awaiting trial, pregnant with
14:55
Speaker 1: her second child, and on April eighteenth, two thousand and three,
14:58
Speaker 1: she started feeling contra fractions.
15:02
Speaker 4: I remember going to the hospital from the jail, and
15:07
Speaker 4: every time you had to go to the hospital, you
15:09
Speaker 4: had to go be in shackles.
15:11
Speaker 1: This is standard practice while in DJ custody, shackling prisoners
15:15
Speaker 1: who are giving birth with an officer assigned to watch
15:18
Speaker 1: over them.
15:19
Speaker 4: Is that police officer, you know, just watching you give?
15:24
Speaker 4: Sure you're not gonna escape what you are giving? Birned, Like,
15:29
Speaker 4: how can that happen? I mean, you and a lot
15:33
Speaker 4: of pain, you have contractions, you're pushing. How can you
15:36
Speaker 4: gonna start pushing and then run? I don't I don't
15:40
Speaker 4: see that possible. But it was very It was very sad.
15:48
Speaker 4: I remember that night. I have a female officer and
15:54
Speaker 4: she had to be there the whole time, and I
15:57
Speaker 4: was having like contractions, but I was not going in labor.
16:02
Speaker 4: And I was like literally praying to go on labor
16:04
Speaker 4: because I didn't know who was the other officer was
16:08
Speaker 4: gonna be and I didn't want it to be a male.
16:12
Speaker 4: And I'm you know, with your legs all open and shackles,
16:17
Speaker 4: and like I was scared. I was scared. I was
16:21
Speaker 4: really scared.
16:24
Speaker 1: After a few hours of labor, her son, Aiden was born.
16:27
Speaker 1: Did they let you hold him?
16:29
Speaker 4: No?
16:30
Speaker 1: You didn't even get to hold your son.
16:32
Speaker 3: No.
16:32
Speaker 4: I had to beg later on when I went to
16:34
Speaker 4: the room, I had to beg the nurse to let
16:39
Speaker 4: me hold my kid. Because of the nature of the crime.
16:42
Speaker 4: They didn't let me get close to Aiden.
16:48
Speaker 1: Because Rosa was charged with a crime against a child,
16:50
Speaker 1: she wasn't allowed near anyone under eighteen, not even her
16:55
Speaker 1: newborn son. However, in a moment of grace or sympathy,
16:59
Speaker 1: once they were alone, the nurse let Rosa hold Aiden
17:03
Speaker 1: for a little while. But as one baby came into
17:07
Speaker 1: the world, another left. Brian Gutierrez succumbed to his injuries
17:12
Speaker 1: and died just over a week after Aiden was born.
17:16
Speaker 1: Ros's charges were upgraded to felony murder two years later.
17:20
Speaker 1: Rosa went to trial in August two thousand and five.
17:23
Speaker 1: She was tried in Travis County Criminal District Court by
17:27
Speaker 1: Gary Cobb and Alison Wetzel.
17:30
Speaker 4: This trial is.
17:30
Speaker 6: About something that happened to a little boy named Brian
17:34
Speaker 6: on January thirty of two thousand and three.
17:36
Speaker 4: He was twenty.
17:36
Speaker 1: One months old. He lived in North Austin with his.
17:40
Speaker 6: Mother, Victoria, and with her family, and he was a
17:46
Speaker 6: healthy baby. He was a happy baby, and his family.
17:50
Speaker 1: Loved him very very much. Doctors and first responders who
17:54
Speaker 1: took the stand for the prosecution all said it would
17:57
Speaker 1: have been impossible for Brian to have shoved the paper
18:00
Speaker 1: towels down his throat on his own. His gag reflex
18:03
Speaker 1: would have pushed them out. Someone had to hold him
18:06
Speaker 1: down and push the wat of paper towels past the reflex.
18:11
Speaker 1: How much do you think racism played into Rose's case?
18:16
Speaker 7: Racism played a huge role in Rosa's case. She is
18:21
Speaker 7: one of other people that we know about who women
18:25
Speaker 7: of color in this jurisdiction at this time period, who
18:30
Speaker 7: ended up being prosecuted in cases where children were injured
18:34
Speaker 7: in accidents.
18:35
Speaker 1: Vanessa Pupkin is the director of Special Litigation at The
18:38
Speaker 1: Innocence Project.
18:40
Speaker 7: It's something that we see throughout the country when it
18:43
Speaker 7: comes to children who die or are injured and if
18:48
Speaker 7: the parents are people of color, there's a rush to
18:51
Speaker 7: call this a homicide or some type of abuse.
18:55
Speaker 1: And it's hard to argue when you hear Wetzel in
18:58
Speaker 1: her own words at trial. Here she is questioning Detective
19:02
Speaker 1: Delo Santo's on the stand about his interrogation with Rosa.
19:06
Speaker 6: And despite being from Mexico, she's very intelligent, wouldn't you agree?
19:14
Speaker 4: I think she's a smart lady.
19:17
Speaker 6: And did it appear to you that she manipulated you
19:20
Speaker 6: at the end of the interview by getting you to
19:24
Speaker 6: bring her daughter to you?
19:26
Speaker 4: You know, I'm gonna say yes. I don't think she
19:28
Speaker 4: ever intended to tell me if she.
19:31
Speaker 1: Did this, that she did it. In Rosa's defense, her attorney,
19:37
Speaker 1: Leonard Martinez, called multiple witnesses who said Rosa was a
19:41
Speaker 1: peaceful person who was not quick to anger. But that
19:45
Speaker 1: was pretty much it.
19:47
Speaker 7: She just had woefully an adequate counsel. Her trial counsel
19:51
Speaker 7: only consulted with one expert. That expert had no experience
19:56
Speaker 7: in pediatric pathology.
19:59
Speaker 1: In fact, none of the experts that trial did not
20:02
Speaker 1: even the prosecutions, but the expert hired by Rosa's lawyer
20:07
Speaker 1: was particularly bad.
20:09
Speaker 7: He had not done any publishing except for one article,
20:14
Speaker 7: which was how to turn a murder into an accident?
20:18
Speaker 7: So could you imagine when that came out in front
20:20
Speaker 7: of the jury what that did to his credibility.
20:25
Speaker 4: It was a disaster.
20:27
Speaker 1: Rosa sat through a week long trial believing that, even
20:30
Speaker 1: though she was confused by the proceedings and what people
20:32
Speaker 1: were saying, everything was going to be okay.
20:36
Speaker 4: I believe in the United States system. I believe the yeah,
20:40
Speaker 4: we're not corrupted. I believe the yeah, we're going to
20:43
Speaker 4: search the truth and the truth we're going to set
20:46
Speaker 4: me free.
20:48
Speaker 1: But on August thirty first, two thousand and five, Rosa
20:51
Speaker 1: was convicted of injury to a child and felony murder.
20:55
Speaker 1: She was sentenced to ninety nine years in prison.
20:58
Speaker 2: I remember during your trial you were getting all this
21:00
Speaker 2: information through a translator.
21:02
Speaker 4: Yes, correct.
21:04
Speaker 2: What was that like when you found out you're convicted?
21:06
Speaker 2: Did you understand at that moment what was happening?
21:12
Speaker 4: No? Two, I mean she's saying that they convict me
21:17
Speaker 4: to ninety nine years in prison, But it was like, no,
21:21
Speaker 4: it cannot.
21:22
Speaker 5: Be lestas busy a level that act. Where have you seen.
21:33
Speaker 1: Estella was there watching her daughter get tried and sentenced,
21:37
Speaker 1: and she didn't understand what was happening either. She says,
21:40
Speaker 1: she asked Rosa's lawyer to please translate to tell her
21:44
Speaker 1: what was going on.
21:46
Speaker 5: It is.
21:54
Speaker 1: That was the last time she saw her daughter in person,
21:56
Speaker 1: and Estella says, there are simply no words to describe
22:00
Speaker 1: that kind of pain. At twenty two years old, everything
22:11
Speaker 1: Rosa had ever dreamed of was gone.
22:16
Speaker 7: You know, here's so many people these days talk about like, oh,
22:18
Speaker 7: their career, what they want to be, and she wanted
22:20
Speaker 7: to be a mother.
22:21
Speaker 4: That was her thing that she wanted very much.
22:25
Speaker 1: But now her kids were being taken from her. Fidel
22:29
Speaker 1: was young and had no means of caring for them.
22:32
Speaker 1: In fact, he disappeared from Rosa's life shortly after her conviction.
22:36
Speaker 1: So Rosa's children were put in foster care while her
22:39
Speaker 1: mom fought for custody from Mexico. Brenda and Aiden were
22:43
Speaker 1: placed with a family who will call the Smiths. At first,
22:47
Speaker 1: Rosa says, the Smiths would bring her kids to see
22:49
Speaker 1: her in prison.
22:50
Speaker 4: But then they start asking me for an adoption, to
22:54
Speaker 4: sign papers, and I tell them no. So then that
22:58
Speaker 4: we sit, says starts getting you know, far away and
23:02
Speaker 4: far away.
23:03
Speaker 1: Rosa felt like she was being manipulated, like.
23:07
Speaker 4: If you give them to adoption to us, then you're
23:11
Speaker 4: going to be able to see them more often. But
23:14
Speaker 4: if you don't, then you're not going to be able
23:16
Speaker 4: to see them. And then part of me was really sad,
23:21
Speaker 4: and part of me was like, I'm not going to
23:23
Speaker 4: give my kids to adoption. They're my kids, So she didn't.
23:28
Speaker 1: Did you think you were ever going to get out
23:31
Speaker 1: to be able to be a mom to them? Was
23:33
Speaker 1: that part of your decision making?
23:36
Speaker 4: Honestly? I mean when you in prison, Maggie, like you
23:44
Speaker 4: believe in God, you have this strong faith and you
23:48
Speaker 4: believe because you don't have nothing else. They strip you
23:53
Speaker 4: from your kids, your family, everything that you dream of.
23:56
Speaker 4: You don't have no more. So the only thing that
23:59
Speaker 4: you have is God. That's it. So you hold into
24:04
Speaker 4: with you old God with everything you had in you
24:07
Speaker 4: because you don't have nothing else. So part of me
24:13
Speaker 4: believed that I was going to go home, but the
24:16
Speaker 4: realistic part of me was telling me, you're not one.
24:21
Speaker 4: You don't have no money, you don't have no support,
24:24
Speaker 4: you don't have no family here, so how are you
24:27
Speaker 4: gonna get out you're not.
24:30
Speaker 1: Brenda and Adam were raised by the Smiths, and as
24:33
Speaker 1: the years passed, Rosa got to see them less and less.
24:37
Speaker 1: She tried to be a mom from prison, but it
24:39
Speaker 1: was fruitless. They became strangers, both races.
24:46
Speaker 5: To pay.
24:50
Speaker 1: Estella says she tried to get a visa twice to
24:52
Speaker 1: come here and visit Rosa, but both times it was.
24:56
Speaker 5: Denied let very soon, but for this week.
25:06
Speaker 1: Official told her it was because Rosa was in trouble
25:08
Speaker 1: with the state.
25:10
Speaker 5: Almost for.
25:19
Speaker 1: Rosa was only allowed a handful of very short international calls.
25:24
Speaker 1: So for eighteen years they stayed in touch through letters.
25:30
Speaker 5: Scat.
25:33
Speaker 4: Yes, through letters, but it's like so hard, like I
25:37
Speaker 4: s in a letter and she will get that letter,
25:39
Speaker 4: like in fifteen days, twenty days so and then for
25:43
Speaker 4: her to write me. Sometimes the letter get lost, so
25:48
Speaker 4: it was not a good communication.
25:53
Speaker 1: In one of those letters, Rosa had to tell her
25:55
Speaker 1: mom she had kidney failure and the outlook was not good.
25:59
Speaker 1: When I first spoke to Rosa, she was waiting to
26:01
Speaker 1: start dialysis.
26:03
Speaker 3: The only thing they for me is through and then
26:08
Speaker 3: one minute left. Eventually, when my kidneys dropped m they
26:15
Speaker 3: had to pick another unit. When they do dialysis and
26:19
Speaker 3: then after that that will be it. He said, a
26:22
Speaker 3: person can only live with dialysis of seen years.
26:26
Speaker 1: The clock was ticking for Rosa, but fortunately the story
26:30
Speaker 1: of a young Mexican immigrant wronged by the American legal
26:33
Speaker 1: system was making headlines.
26:38
Speaker 7: Rosa had the support of the Mexican government. She had
26:41
Speaker 7: been working with the consulate.
26:43
Speaker 1: Since trial Vanessa Potkin. Again, they had.
26:46
Speaker 7: Stood by her for close to two decades, trying to
26:50
Speaker 7: get counsel, hiring lawyers, and were very supportive throughout the
26:55
Speaker 7: entire process.
26:57
Speaker 1: An attorney named Bryce Bingett was hired by the Mexican
27:00
Speaker 1: Consulate to work on Rosa's case. In twenty eighteen, he
27:04
Speaker 1: took a job with the Innocence Project and brought her
27:06
Speaker 1: case with him.
27:07
Speaker 7: At that point, there had been already some medical evidence
27:12
Speaker 7: developed to suggest that Rosa had been convicted of something
27:16
Speaker 7: that was an accidental choking.
27:20
Speaker 1: Over the years, her case has been looked at by
27:22
Speaker 1: multiple judges.
27:24
Speaker 7: Five judges at different points that had reviewed Rosa's case
27:27
Speaker 7: and said she's likely innocent, this is a miscarriage of justice.
27:32
Speaker 1: One of those judges, Charlie Baird, wrote that Rosa's trial
27:35
Speaker 1: was quote fatally affected by constitutional error. I remember that
27:41
Speaker 1: expert Rosa's defense attorney used. Judge Baird said that in
27:44
Speaker 1: his decades long career, his court had quote never seen
27:49
Speaker 1: such unprofessional and biased conduct from any witness, much less
27:53
Speaker 1: from a purported expert. Still, Rosa remained in prison In Texas.
28:00
Speaker 1: The Court of Criminal Appeals has final say on innocence claims,
28:04
Speaker 1: and it refused to give Rosa a new trial. It
28:07
Speaker 1: was relentless. Then finally, in twenty twenty, she was granted relief.
28:13
Speaker 7: So she had a federal court review her case and
28:16
Speaker 7: say her trial lawyer was deficient. The trial council never
28:23
Speaker 7: consulted with any expert that could have meaningfully told the
28:27
Speaker 7: jury what.
28:28
Speaker 1: Could have happened in this case. None of the witnesses
28:31
Speaker 1: called were experts in pediatric airways.
28:34
Speaker 7: It would be like having a problem with your heart
28:38
Speaker 7: and going to a foot doctor. Both doctors, but you
28:42
Speaker 7: can't get your opinion from the foot doctor.
28:45
Speaker 1: So Rosa was granted a new trial, but again someone
28:48
Speaker 1: got in the way. The Texas Attorney General's office appealed
28:52
Speaker 1: the decision, a process that could have taken years. Years
28:56
Speaker 1: Rosa likely didn't have as a person with kidney failed.
29:00
Speaker 1: You're in a pandemic, so how did you get her out?
29:06
Speaker 7: We saw an opportunity at that point to say, okay,
29:10
Speaker 7: let's figure out who are the top pediatric NT doctors
29:18
Speaker 7: in the country, perhaps the world, and let's submit Rosa's
29:22
Speaker 7: case to them. Let's say, here's this incident, this is
29:25
Speaker 7: what happened with the child. Is this intentional? Could this
29:29
Speaker 7: be an accident? What happened here? And all of these
29:33
Speaker 7: doctors had the same reaction. They were like, wait, this
29:37
Speaker 7: woman's in prison, she was convicted. They couldn't believe it.
29:42
Speaker 7: This was an accident, and the idea that this could
29:45
Speaker 7: have happened intentionally is so far fetched.
29:50
Speaker 1: They said. The gag reflex would actually have pulled the
29:53
Speaker 1: wad further into Brian's throat instead of expelling it, like
29:57
Speaker 1: experts testified to at trial.
30:00
Speaker 7: I completely turned on its head the evidence that had
30:02
Speaker 7: been used at her trial and exposed that that evidence
30:06
Speaker 7: had been false.
30:09
Speaker 1: Following an evidentiary hearing, the trial court recommended that Rosa's
30:12
Speaker 1: conviction be vacated, and on January twenty seventh, twenty twenty one,
30:17
Speaker 1: she was released on bond, but her troubles were far
30:21
Speaker 1: from over. Rosa had been released from prison, but she
30:28
Speaker 1: wasn't free.
30:29
Speaker 7: The issue was that because of her immigration status while
30:34
Speaker 7: she was in prison, a deportation order had been lodged
30:38
Speaker 7: against her. And so if somebody has any type of
30:42
Speaker 7: hold by ICE, when their conviction is vacated, ICE is
30:46
Speaker 7: notified and ICE has two days forty eight hours to
30:51
Speaker 7: come pick up that person and take them into ICE attention.
30:54
Speaker 4: And in my mind, I was like, they leave me
30:56
Speaker 4: in Mexico, like great coming back, But part of me
31:02
Speaker 4: was scared because I don't know Mexico anymore. You know,
31:07
Speaker 4: I left when I was seventeen. Now I'm almost forty.
31:10
Speaker 4: And if they leave me at the border with no money, nothing,
31:15
Speaker 4: how I'm gonna call on mom. How I'm gonna get
31:18
Speaker 4: all the way to Mexico.
31:21
Speaker 1: Meanwhile, Vanessa was in New York frantic.
31:24
Speaker 7: We had an immigration lawyer trying to see if they
31:26
Speaker 7: could you get in touch with ICE. We're calling, We're like,
31:30
Speaker 7: is there any update on Rosa's situation.
31:33
Speaker 1: She learns that Immigration was coming to pick up Rosa
31:36
Speaker 1: in Texas that day.
31:38
Speaker 7: So I decided, I was in New York, I'm gonna
31:42
Speaker 7: get on a plane and fly to Texas.
31:44
Speaker 1: Vanessa was getting rapid updates.
31:47
Speaker 7: And then the next email we get is they've decided
31:50
Speaker 7: to expedite deportation.
31:55
Speaker 1: Then she got an email that Rosa had been picked up.
31:59
Speaker 7: So by the time I land in Texas, Rosa was
32:02
Speaker 7: in a vehicle and we're just told that she's going
32:05
Speaker 7: to be deported. It really did feel like being run
32:09
Speaker 7: over by a mac truck.
32:10
Speaker 4: And we are like, how are we.
32:11
Speaker 7: Going to push this truck off of us and get
32:14
Speaker 7: from underneath this? If she gets deported, she's never coming back.
32:18
Speaker 7: That's just like the end of it. She wants to
32:20
Speaker 7: see her children. Her children are waiting for her to
32:22
Speaker 7: come out. We are just like in our minds having
32:28
Speaker 7: this vision that she is in a car and like
32:30
Speaker 7: being driven to go across the border.
32:34
Speaker 1: As we're speaking, Rosa was in a van with two
32:38
Speaker 1: ICE agents.
32:39
Speaker 4: I see them talking among themselves, and they keep looking
32:42
Speaker 4: back at me, talking among themselves and looking at me.
32:47
Speaker 4: Why can I hear anything? They sing, and they started
32:52
Speaker 4: getting phone calls and phone calls and phone calls, And
32:57
Speaker 4: in my soul, my car, you something happened, like not bad,
33:04
Speaker 4: but something happened.
33:06
Speaker 1: Vanessa was getting out from under the mac truck.
33:09
Speaker 7: And I think it was ultimately the intervention of the
33:12
Speaker 7: Mexican government reaching out, because next thing you know, we
33:17
Speaker 7: were informed, oh, you can go get Rosa in San Antonio.
33:23
Speaker 1: Instead of going to the border. Rosa was taken to
33:25
Speaker 1: a detention center in San Antonio. Her deportation was intercepted.
33:30
Speaker 1: The agent told her to call someone to pick her up,
33:32
Speaker 1: so she called Vanessa for advice, thinking Vanessa was still
33:35
Speaker 1: in New York. Then Rosa sees someone walking towards her.
33:40
Speaker 4: She had a mask on her and I was like,
33:42
Speaker 4: I wonder, who's that lady. And then she come in
33:47
Speaker 4: and hug me, and I'm still like, like, what is
33:52
Speaker 4: this lady hugging? And then she's like you okay.
33:57
Speaker 1: Rosa was more than okaya.
34:00
Speaker 8: She was freem overwhelmed.
34:06
Speaker 1: Estella remembers seeing a press conference of her daughter online.
34:10
Speaker 9: I'm just so overwhelmed right now and I don't think
34:12
Speaker 9: I can really talk. But I just want to say
34:15
Speaker 9: thank you to all the people that stood behind me
34:18
Speaker 9: all these years.
34:22
Speaker 1: Moral she says. Rosa was standing there in front of
34:27
Speaker 1: the microphones, carrying a bag over her shoulder, and she
34:34
Speaker 1: says it broke her. She was happy and sad all
34:48
Speaker 1: at once. She cried seeing her daughter finally free.
35:04
Speaker 5: Even more, but she.
35:07
Speaker 1: Was carrying all the hopes and illusions of nearly two
35:11
Speaker 1: decades in a little bag over her shoulder. Rosa remembers
35:19
Speaker 1: the first time she was able to speak to her
35:21
Speaker 1: mom on the phone.
35:26
Speaker 4: It was nice to hear her voice. I remember I
35:31
Speaker 4: was crying and she was like, don't cry anymore. That
35:37
Speaker 4: is sober.
35:38
Speaker 1: That journey so over, and a new one was starting.
35:43
Speaker 1: A week later, Rosa was at Brenda's wedding, trying to
35:46
Speaker 1: catch up on the eighteen years she's lost from her kids' lives.
35:51
Speaker 4: When you come home, you want everything that they took
35:56
Speaker 4: from you back you wanted at the same exact mean
36:00
Speaker 4: you ow, you want to back, You want the love,
36:02
Speaker 4: you want your kids. You want everything. When I say
36:06
Speaker 4: everything is everything that they took from you, you want
36:08
Speaker 4: to back. But the sad thing is that you cannot
36:14
Speaker 4: get those things met. And you head your kids are
36:21
Speaker 4: still small. Everything is like in like everything stopped and
36:27
Speaker 4: now you ow and you realize that nothing has stopped you.
36:32
Speaker 4: Life is stopped, but no one's life has stopped.
36:36
Speaker 1: Brenda Roses little girl was an adult now in her twenties.
36:43
Speaker 1: Vanessa was at the wedding as well, and she says
36:45
Speaker 1: the day was complicated.
36:48
Speaker 7: Because you had, you know, her daughter was getting married.
36:50
Speaker 7: It's like this most important moment. And there was some
36:54
Speaker 7: beautiful parts where Roses going to the hotel room before
36:57
Speaker 7: and she's putting out her dress and getting her may
37:00
Speaker 7: get ready. But then at the ceremony itself, you saw
37:04
Speaker 7: that the mother who had really raised Rosa's daughter was
37:10
Speaker 7: occupying that space of the mother of the bride, and
37:14
Speaker 7: Rosa was there as not a spectator, but just like
37:20
Speaker 7: in such a weird position, And how bittersweet that would
37:24
Speaker 7: be to be able to be at that moment and
37:26
Speaker 7: see your daughter and see this monumental moment happening in
37:30
Speaker 7: her life, but also feel so disconnected from the experience
37:36
Speaker 7: and all that had transpired since she was two years old,
37:39
Speaker 7: which was when Rosa went away.
37:43
Speaker 1: Life had moved on without her.
37:57
Speaker 10: As prosecutors, we have an obligation to ensure the integrity
38:01
Speaker 10: of convictions and to seek justice.
38:04
Speaker 1: On August seventh, twenty twenty three, Travis County District Attorney
38:08
Speaker 1: Jose Garza dismissed Rose's murder charges and she was officially exonerated.
38:14
Speaker 10: Dismissing Missyimenez's case is the right thing to do. Our
38:20
Speaker 10: hearts also continued to break for the Gutierrez family. In
38:24
Speaker 10: this case, our criminal justice system failed them. It also
38:30
Speaker 10: failed Rosa Chimenez. Our hope is that by our actions today,
38:37
Speaker 10: by exposing the truth that Missimnez did not commit the
38:42
Speaker 10: crime for which she was accused, that we can bring
38:47
Speaker 10: some sense of closure and peace to both families.
38:53
Speaker 1: That same day, Rosa also became a grandmother.
38:57
Speaker 2: You didn't get to really raise Brenda, but you got
39:00
Speaker 2: to meet her daughter.
39:01
Speaker 1: And what was that like?
39:05
Speaker 4: Oh? That was at that moment I thought, oh my god,
39:10
Speaker 4: everything that I lost or they took or they robbed me,
39:16
Speaker 4: I can live again with my grand baby. I can
39:20
Speaker 4: experience all those things and teach her how to walk
39:24
Speaker 4: and you know, be there for her, give her everything
39:30
Speaker 4: that I have. But they didn't happen like that.
39:35
Speaker 1: Things didn't work out as planned, and Rosa doesn't have
39:38
Speaker 1: a relationship with either of her kids right now. Both
39:41
Speaker 1: Aiden and Brenda have lived with her since her release.
39:44
Speaker 1: They tried to build a bond, but it never worked out.
39:47
Speaker 4: So my kids, they're already grown. They don't know me.
39:52
Speaker 8: I don't know them, and Rosa didn't know herself. I
39:57
Speaker 8: was trying to figure out myself. I didn't know who
39:59
Speaker 8: I was when I came out from person. I didn't
40:02
Speaker 8: know who I was, what I want, what I like?
40:05
Speaker 8: I didn't know.
40:07
Speaker 1: Is there a piece you can make with losing your kids?
40:12
Speaker 4: No, No, it's like I can. I don't know if
40:17
Speaker 4: I can relate to actually a mother that has lost
40:20
Speaker 4: their kids. But it's really hard to know that you
40:26
Speaker 4: have kids and you can see them or they cannot
40:30
Speaker 4: call you whatever. You know, it's really hard. It's sad.
40:34
Speaker 4: It's really sad, Like I'm in this house and I wish,
40:39
Speaker 4: you know, like my kids can come and visit and stay,
40:45
Speaker 4: and they don't.
40:48
Speaker 1: On September of this year, Rosa flood in New York
40:51
Speaker 1: to get a kidney transplant.
40:54
Speaker 7: You know, some people go many years without being able
40:58
Speaker 7: to find it donor.
41:01
Speaker 1: This seems pretty fast that she got a donor.
41:04
Speaker 4: It was I think that happened. I guess she touched.
41:08
Speaker 7: Somebody out in the world. Hopefully this new kidney supports
41:19
Speaker 7: her in a very long, healthy life, and you know,
41:25
Speaker 7: she's never going to be a whole in the sense
41:27
Speaker 7: that she's never going to be able to get that
41:28
Speaker 7: time back or the relationship back.
41:30
Speaker 1: With her children.
41:31
Speaker 7: And I think coming to terms with that has been
41:34
Speaker 7: hard for her because you spend so much time fighting
41:38
Speaker 7: to try to get to something that you're never going
41:42
Speaker 7: to fully be able to get back to.
41:45
Speaker 1: But Rosa's busy building a new life.
41:47
Speaker 9: O God.
41:51
Speaker 1: She lives outside of San Antonio in a brand new
41:54
Speaker 1: house overlooking the vast Texas Plains with her chihuahuas, Tequila
42:00
Speaker 1: and to see plus a few more. There's two more
42:06
Speaker 1: dogs that live here.
42:07
Speaker 4: We have five.
42:08
Speaker 1: You have five dogs.
42:11
Speaker 2: So you might not have your human children as close anymore,
42:14
Speaker 2: but you have your dog children now right.
42:17
Speaker 4: Oh yeah, I love them.
42:20
Speaker 1: And she has her wife, Mary Jane.
42:22
Speaker 4: She's the only person that has been there for me
42:25
Speaker 4: and it has the patient to teach me. And I
42:28
Speaker 4: know she gets frustrated, but she's there for me. She
42:33
Speaker 4: knows the damage that presented to me like a lot.
42:39
Speaker 4: I have a lot of damage, you know, And she
42:42
Speaker 4: has to put up with all them, you know, and
42:44
Speaker 4: like teach me a little by little. Hey, the world is.
42:48
Speaker 1: Okay, and that Mary Jane's urging. Rosa is still trying
42:53
Speaker 1: to stay in touch with her kids.
42:55
Speaker 4: She's like, so just text them, let them know you
42:59
Speaker 4: love them, let know that you think about them. And
43:01
Speaker 4: if they don't respond, that's their choice. But you're doing
43:05
Speaker 4: what a mother needs to do.
43:08
Speaker 1: And she keeps looking towards the future. Once she's healed
43:11
Speaker 1: and her immigration status has worked out, she says she
43:13
Speaker 1: wants to travel first to Mexico to visit her mom,
43:17
Speaker 1: who she hasn't seen since her trial in two thousand
43:19
Speaker 1: and five, then somewhere for her and Mary Jane.
43:24
Speaker 4: My word was suggesting a what are those things called
43:31
Speaker 4: where you go in a boat, A cruise, A cruse?
43:35
Speaker 1: Yeah, oh, I could see you on a cruise. I
43:37
Speaker 1: think you'd like that.
43:39
Speaker 4: And I was like, do they all loud dogs? And
43:41
Speaker 4: just like no, and I'm like, oh, what are we
43:43
Speaker 4: going to do with the girls?
43:48
Speaker 1: Life doesn't have perfect endings, but Rosa is grateful.
43:52
Speaker 4: Nonetheless, angels were behind me the whole time.
44:02
Speaker 1: Thank you for listening to Wrongful Conviction with Maggie Freeling.
44:06
Speaker 1: Please support your local Innocent organizations and go to the
44:09
Speaker 1: links in the episode description to see how you can
44:11
Speaker 1: help and to learn more about the practice of shackling
44:14
Speaker 1: women who are giving birth. Check out an article I
44:17
Speaker 1: wrote for Rolling Stone well linked to it as well.
44:20
Speaker 1: This episode was written by me Maggie Freeling, with story
44:24
Speaker 1: editing and sound design by senior producer Rebecca Ibarra. Our
44:27
Speaker 1: producer is Kathleen Fink. Our mixer is Josh Allen, with
44:31
Speaker 1: research by Alison Levy and additional production help by Jeff Cliburn.
44:35
Speaker 1: Executive producers are Jason Flam, Jeff Kempler, and Kevin Wordis.
44:39
Speaker 1: The music is by three time OSCAR nominated composer Jay Ralph.
44:43
Speaker 1: Make sure to follow us on all social media platforms
44:46
Speaker 1: at Lava for Good and at Wrongful Conviction. You can
44:49
Speaker 1: also follow me on all platforms at Maggie Freeling. Wrongful
44:53
Speaker 1: Conviction with Maggie Freeling is a production of Lava for
44:55
Speaker 1: Good podcast in association with Signal Company Number one