The attorney in the case of a Cobb County mother who was convicted of reckless conduct after her child was killed by a hit-and-run driver says evidence in the original case is insufficient to warrant a new trial.
Attorney Steve Sadow has filed pleas in Cobb County State Court asking Judge Katherine Tanksley to declare his client not guilty before a scheduled new jury trial Oct. 25.
The judge gave Raquel Lee Nelson of Marietta the option of a new trial after sentencing her July 26 to 40 hours of community service and 12 months' probation in the death of her child A.J.
A not-guilty verdict would clear her record.
On April 10, 2010, Nelson and her three children had exited a Cobb Community Transit bus at 10 p.m. and were crossing four-lane Austell Road to get to their apartment when they stopped on the median because of oncoming traffic. A.J. suddenly pulled away from his mother to finish crossing the street when a van struck and killed him.
Jerry L. Guy, the driver who admitted hitting A.J. when he pleaded guilty to hit-and-run, served six months in jail, despite having been convicted in 1997 of a similar offense. He was released in October and is serving the remainder of his five-year sentence on probation.
Nelson was convicted on three charges -- second-degree vehicular homicide, failure to yield by not using a crosswalk, and reckless conduct. They are the same charges she will face in the Oct. 25 trial in Cobb County State Court.
Cobb County Solicitor General Barry Morgan has said his office “will move forward” with the new trial and could not comment further because the case is pending.
Sadow, Nelson's new attorney, said that although a jury found her guilty the evidence in the first trial was not sufficient enough to warrant a conviction, and allowing the prosecution a second "bite at the apple" would be double jeopardy.
“The court did the right thing in granting or ordering a new trial,” Sadow said Tuesday. “Now we want the judge to consider the evidence wasn’t sufficient to convict,” which he said was not asked of the judge at the first trial.
“The judge should find her not guilty, and that should be the end of the case,” Sadow said.
If the judge decides to continue with the second trial, Sadow has filed another motion challenging the charges that were brought against Nelson.
The attorney contends that Nelson is being unfairly singled out for “selective enforcement” of the state’s reckless conduct statute. He said people cross busy streets every day and it isn’t considered reckless behavior.
It was only because there was a death in this case that Nelson was singled out, the lawyer said. He said the statute did not warn Nelson that her actions would be reckless.
“The reckless conduct statute doesn’t put someone on notice that crossing a street under those circumstances would be considered reckless conduct under the criminal law,” Sadow said.
The attorney said that before the accident occurred, others had also crossed the street, including one woman with a stroller, and if Nelson’s actions were reckless, the others’ actions also would be reckless.
Sadaw also said the nearest intersection on Austell Road where there was a marked crosswalk was three-tenths of a mile away from the accident scene, and state law did not require Nelson to use the crosswalk at that intersection.
“The tragedy doesn’t and shouldn’t determine whether there is violation of law,” Sadow said.
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