AUSTIN (KXAN) — A woman tried and convicted of murdering a baby may be given a new trial, or be released from prison altogether.

On Tuesday in federal court, a magistrate judge questioned attorneys about the plan to re-try Rosa Jimenez.

In 2005, Jimenez was convicted in the death of a 21-month-old child in her care. According to testimony from the original trial, the boy choked on a wad of paper towels.

At the time, prosecutors argued Jimenez intentionally forced the paper towels down the baby’s throat. The Innocence Project, which supports Jimenez, said she has always maintained her innocence and that the child’s death was a tragic accident.

“We have since presented leading experts in pediatric choking who described similar incidents of accidental choking and confirmed that nothing about this case suggested foul play,” a spokesperson from the Innocence Project said on their website.

United States Magistrate Judge Andrew Austin issued a recommendation for a new trial or for the release of Jimenez in September 2018, on the basis she was “deprived of her Sixth Amendment right to a fair trial” due to the lack of qualified medical experts in the original proceedings.

In 2019, United States District Judge Lee Yeakel concurred, overturning her conviction and ordering a new trial.

In Tuesday’s hearing, the state’s attorney’s moved to “stay,” or halt any legal proceedings, while they appeal that order from Judge Yeakel.

The state also brought up concerns that Immigration and Customs Enforcement agents could try to take custody of Jimenez and deport her, if she was to be transferred from the prison back to the Travis County Jail for a new trial.

The state’s attorneys said it seemed “mandatory that we hand her over to immigration” because of a current ICE detainer in place, due to her undocumented status.

When asked for evidence of why this would happen, the state called it “reasonable speculation.”

Judge Austin responded that he was “frustrated” with the ambiguity, asking the attorney to sit down.

Judge Austin asked representatives from the Travis County District Attorney’s office if District Attorney Margaret Moore was wanting to re-try the case.

“Has she read the four judges orders that say there is likely an innocent woman in jail?” Judge Austin asked.

Judge Austin closed his remarks by saying, “It’s distressing to me that we are treating this like an average case.”

Judge Austin filed his recommendation on Wednesday morning, denying the state’s attorneys the “stay” they had requested. He wrote that the Court did not believe there “was a strong likelihood that the State would be successful on appeal.”

According to the court documents, “that would mean the Court also believed that its decision is likely in error. Courts, this one included, rarely if ever enter rulings that they believe are probably wrong, and the Court certainly did not do so in this case.”

He also addressed the questions regarding her immigration status, saying, “this is thus not a case where the State will simply open the door to the prison and either let Petitioner walk free or hand her over to ICE.”

Instead, he wrote, she’ll be moved to custody in Travis County to wait for a new trial.

This means an original February 25 deadline for her retrial or release, remains in place.

These filings come years after an order for a new trial filed by now Retired Appellate Judge Charlie Baird.

“It was the last thing I did as a judge,” Baird said, describing the night in 2010 he drove to the clerks house after hours on New Year’s Eve to deliver the order.

He said the evidence presented in the original trial was “very shaky.” Plus, he saw no indication of a motive for the murder. Finally, he said the new experts in her appeal explained how it could have been an accident.

His decision was overturned, but he stands by it.

“If she is not actually innocent, then she is certainly deserving of a new trial,” Baird said. “Why the state of Texas continues to contest that? I just do not know.”