In the appeal, Sadow argued that the Cobb County Solicitor’s Office presented insufficient evidence to prove she was criminally responsible for the death of her 4-year-old son, A.J. Newman.
“Had she not been [crossing the street] there, there would be no accident,” Sadow told the three appellate judges in the May 17 hearing. “But legally, she was not the cause of the child’s death.”
But Appellate Judges Charles B. Mikell, M. Yvette Miller and William M. Ray II disagreed.
“The trial court’s exercise of its discretion in granting a new trial based upon its finding that the verdict is against the weight of the evidence differs from a judgment of acquittal holding that the evidence is legally insufficient,” Miller wrote in an opinion released last week.
Nelson’s son was struck and killed on the night of April 10, 2010, as she returned home on the bus after a day out with A.J. and her two daughters.
They crossed Austell Road’s northbound lanes to the median rather than walking a half mile in either direction to crosswalks.
Witnesses told police that A.J. pulled away from his mother and darted into the path of an oncoming van, trying to follow his older sister, who had already made it safely to the other side.
Nelson and her toddler, whom she was holding while trying to save A.J., were also hit but were not seriously injured.
Jerry L. Guy, who pleaded guilty to hit-and-run in connection with the child’s death, served six months in jail.
In addition to second-degree vehicular homicide, a jury also found Nelson guilty of crossing outside of a crosswalk and reckless conduct.
Nelson faces a jail sentence of up to three years if convicted a second time.
“The worst thing is every time this comes up, she has to relive that horrible night and the loss of her son,” Sadow said of his client. “Of course, she still wants to clear her name, which is why we are going through with this.”
Cobb Solicitor General Barry E. Morgan’s office initially offered Nelson a deal of 12 months probation and community service, and upon conviction, the court offered the same sentence as an alternative to the retrial.
But Morgan challenged the appeal in a 29-page brief filed with the Court of Appeals.
“The State contends that a jury of [the] Appellant’s peers had ample evidence to support its verdict, and urges this court to deny [the] Appellant’s appeal,” Morgan wrote. “When a pedestrian chooses to cross a divided highway … outside the protection of a crosswalk, she risks her own safety [as] well as the safety of those with her.”
Miller’s opinion seemed to support Morgan’s statement.
“Nothing in the statutory language … prohibits a vehicular homicide conviction against a pedestrian or a non-driver in this regard,” she wrote. “In this case, Nelson’s vehicular homicide conviction … was predicated upon her alleged pedestrian crossing violation under [Georgia statute].”
Sadow said after the appeal that the state shouldn’t continue to prosecute the case.
“It serves no valid legal or judicial purpose,” he said in May.
On Tuesday, Sadow, on Nelson’s behalf, filed a notice of intent to file a petition asking the Georgia Supreme Court to review her request to halt further prosecution.
Nelson has until Sept. 19 to present the petition to the Supreme Court.