The Dueling Expert Problem: The Rosa Jimenez Murder Case

     In a court of law a phony hired-gun forensic scientist can be more persuasive than his more qualified or ethical counterpart. This is possible because jurors make judgments based on how expert witnesses look, act and speak. They do not analyze their resumes. A court room charlatan who can act the part can be more believable than a real expert. Phonies like Dr. Ralph Erdmann, Dr. Louise Robbins, Dr. Pamela Fish, Dr. Michael West and Fred Zain, to name a few, testified in hundreds of cases before they were exposed and defrocked. There are hundreds of private sector hired-guns whose expert testimony is for sale for any side that will pay. Moreover, crime lab personnel working in the various levels of government are often incompetent, or tailor their findings to the needs of police and prosecutors. In general, the field of forensic science has not lived up to its potential, and to an alarming degree, is either useless or downright corrupt. The dueling expert problem is one of the symptoms of this reality.

     Vanderbilt law professor Rebecca Haw, in an article about dueling experts, discusses the "99 to 1 problem." Haw writes: "All but one out of 100 available experts testifies that the earth is round, and one out of 100 disagrees testifies that the earth is flat. To jurors, it appears that scientific consensus on the subject is divided roughly 50-50."

     As the author of two books on the Lindbergh kidnapping case I've encountered something like the 99 to 1 problem in connection with hack true crime writers who make the case that Bruno Richard Hauptmann, the man executed for the 1932 murder of the Lindbergh baby was innocent. More than a dozen highly qualified questioned document examiners had identified Hauptmann as the writer of all the ransom letters. Since the 1935 trial several modern handwriting experts have analyzed the evidence and drawn the same conclusion. While only one  recognized forensic document examiner has expressed doubt regarding these findings, those who believe that Hauptmann was innocent claim that the handwriting evidence in the case is in dispute. In reality, the question of who wrote the Lindbergh case ransom letters has been settled for a long time.

     In researching my 2008 book Forensics Under Fire I noticed that forensic pathologists often testify against each other in shaken baby syndrome and sudden infant death cases. Coroners and medical examiners also face off against opposing forensic pathologists in suicide versus homicide cases and trials featuring the issue of whether a victim was intentionally poisoned or died of an overdose. Forgery and disputed will cases almost always involve opposing handwriting experts, a forensic science on the verge of being destroyed by phony practitioners. (The JonBenet Ramsey case caused a serious rift among qualified forensic document examiners.) Experts regularly disagree over the crime scene identification of footwear and tire impressions, blood spatter analysis, bite mark identification and the cause and origin of suspicious structural fires. Even government fingerprint examiners are now being challenged in court. Twenty years ago this was unheard of.

     The fact that two expert witnesses are on opposite sides of a forensic science issue doesn't necessarily mean that one of them is either a phony or corrupt. But it does mean that one of them is wrong. When jurors find the scientist who is wrong more credible than the expert who is right, criminal justice has been subverted. Forensic science is supposed to be the solution, not the problem.

The Rosa Olvera Jimenez Case

     On January 30, 2003, 19-year-old Rosa Olvera Jimenez and the boy she regularly babysat were alone in the 21-months old's Austin, Texas home. Around noon, Bryan Gutierrez turned blue and collapsed. Although paramedics pulled a wad of 5 paper towels out of the boy's throat, he had slipped into a vegetative state. Four months later he died.

      Jimenez, suspected of murdering the child from the onset, said she had inadvertently left a roll of paper towels in the living room while she prepared lunch in the kitchen. Bryan, his face blue, staggered into the kitchen and pointed to his throat. A few minutes later he collapsed.

     Charged with murder, Rosa Jimenez went on trial on August 25, 2005 at the Travis County district court in Austin. The prosecutor put two physicians and a medical examiner on the stand. The three experts testified that it would have been physically impossible for Bryan to have accidentally swallowed all of that paper. His gag reflex would have prevented that from happening. The fact the towels were stained with blood, according to these expert witnesses, supported the theory that the obstructive mass had been pushed into his throat by force.

     The Jimenez defense put Dr. Ira Kanfer, a forensic pathologist, on the stand. Dr. Kanfer testified that the victim could have accidentally choked himself with the paper towels. According to this forensic pathologist, the blood on the towels did not come from the inside of the victim's mouth, but from his lungs.

     On August 31, 2005, after eight hours of deliberation, the jury found Rosa Jimenez guilty of murder. The judge sentenced her to 99 years in prison.
   
     Defense attorneys filed a motion for a new trial on the grounds the state had not given the defense team enough money to hire a battery of experts to counter the prosecution's expert witnesses. Following the trial, two physicians who were pediatric airway specialists, and a forensic pathologist who specialized in the deaths of children, studied the case. All three of these experts believed that despite the gag reflex, Bryan Gutierrez could have accidentally choked on the paper towels.

     To counter the post-conviction findings of these new defense witnesses the prosecutor presented the analysis of an expert who agreed with the three doctors who had testified for the prosecution at the trial.

     In November 2005 the Travis County district judge who had presided over the case denied the defense motion for a new trial. Jimenez's attorneys appealed this ruling. Several months later, a Texas appeals court reversed the district judge and ordered a new trial based on the new evidence. The Travis County prosecutor appealed this decision to the state's highest court and in April 2012 that court, in an 8 to 1 decision, denied Rosa Jimenez a new trial. According to the justices, the new scientific evidence was not enough evidence to legally reverse the trial jury's finding of guilt.

     In the Jimenez murder case forensic science failed to establish how Bryan Gutierrez had died. It didn't matter to him but it meant everything to his babysitter who will probably die in prison. We will never know for sure if justice was done in this case.

     In the 1930's forensic science advocates such as law school dean John Wigmore and police chief August Vollmer believed that science in the court room would some day eliminate verdicts based upon emotion, guess work and legal gymnastics. That day may come, but notwithstanding cutting edge science such as DNA analysis we are not there yet.