Jaywalking mom taking big risk, experts say

By Marcus K. Garner

The Atlanta Journal-Constitution

Legal experts say a Marietta mother -- convicted for the death of her son in a jaywalking incident -- has taken a huge gamble by accepting a retrial offer in lieu of a year’s probation.

Earlier this month, Raquel Nelson, 30, said she “had no choice” but to be tried again in an attempt to clear her name and conscience.

She was convicted of vehicular homicide and other charges after she and her three children disembarked from a bus in April last year, and her son, A.J., ran from her grasp and was struck and killed by a vehicle.

“Legally, she’s taking a risk,” defense lawyer Bruce H. Morris said. “She’s giving up a sure-thing sentence because the cost would be the admission that she committed a crime that resulted in her child’s death.”

Emory University law professor Kay Levine concurred, suggesting Nelson’s actions were motivated solely by sake of principle, and could result in Nelson’s imprisonment.

“The projected sentence was so low: 12 months [probation] versus not being liable for the death of your son,” Levine said. “It’s a roll of the dice.”

As Nelson returns to trial, which begins next week, the legal landscape has changed for the single mother -- some of it possibly beneficial, some not.

She previously was indicted on charges of vehicular homicide, reckless conduct and crossing a road outside a crosswalk. During pretrial motions, a judge dropped the reckless conduct charge.

And the widespread attention the case drew earlier could influence the jury pool, following arguments from pedestrians’ rights advocates that the previous panel didn’t know all the circumstances.

“They’re certainly going to be more informed now,” Morris said.

However, Gwinnett County District Attorney Danny Porter said the prosecution should remain diligent even though Cobb County Solicitor General Barry Morgan has taken what is construed as an unpopular side.

“I’ve had cases before where the judges have even said, ‘Why are you trying this case?’” Porter said. “My answer was that it was a case that needed to be tried.”

On a Saturday night, Nelson and her three children had stepped off a bus and were trying to cross four-lane Austell Road to their apartment complex when A.J. pulled away from his mother’s hold as she stood on the median. He was struck by a car that didn’t stop. Jerry L. Guy, the driver who admitted to hitting A.J., served six months in jail after having been convicted in two similar offenses.

Former DeKalb County District Attorney J. Tom Morgan said he tried a similar case in the 1980s when he was the state’s child abuse lawyer. A mother witnessed her child killed on busy Buford Highway. The case had a different outcome.

“There were miles between the crossings, the mother lived in an apartment complex, she mother had gotten off a bus with her child, and was crossing the street,” Morgan recalled. “We decided not to prosecute.”

Although it seems many of Nelson’s circumstances are different this time, the same judge will preside. Cobb County State Court Judge Katherine Tanksley heard the first case and will oversee the retrial, which could be good and bad for the defendant, according to the legal analysts.

“What are the chances that the same judge is going to give a different sentence the second time around?” Levine asked.

Porter said Nelson’s lawyer, Steve Sadow, can’t ignore that history.

“One jury has already found her guilty,” Porter said. “If I was a defense attorney, I’d certainly be thinking about that.”

Still, the fact that Tanksley even offered the retrial is noteworthy.

“It’s an odd ruling,” Porter said.

“I’ve never heard of it,” Harris said.

Attorneys can request a retrial if they feel there were errors, and judges will often push for one when there is evidence of lawyer misbehavior or ineptitude in representing a client.

Tanksley simply cited Georgia statutes that allow for such judicial prerogative.

Levine, a former California prosecutor, said tying sentencing to an unsolicited retrial in an “either/or” scenario is unheard of, but said that should make the next outcome clear.

“It seems fundamentally inconsistent to me that the judge should believe those two things are equal,” Levine said. “If the judge thinks that she should have a new trial, she should overturn the verdict.”