A woman found guilty in the death of her 4-year-old son when she jaywalked on a busy Cobb County street appealed her conviction Tuesday.
Raquel Nelson was granted a retrial last fall after a Cobb County jury found her guilty of vehicular homicide in the 2010 death of her son, A.J. Newman.
Tuesday morning her attorney, Steve Sadow, told the Court of Appeals of Georgia that the Cobb County Solicitor’s office presented insufficient evidence to prove that Nelson was criminally responsible for her son’s death, or to prove that the death wasn’t accidental.
“Had she not been [crossing the street] there, there would be no accident,” Sadow told the three appellate judges during his oral argument. “But legally, she was not the cause of the child’s death.”
He said the jury in the original case was never directed by Cobb State Court Judge Katherine Tankersly to prove Nelson’s guilt beyond reasonable doubt.
“The trial judge did not charge on affirmative burden of proof,” Sadow said in the state appeals courtroom.
Nelson sat quietly on a bench at the rear of the courtroom as her attorney spoke.
She remains charged with vehicular homicide and with crossing a roadway outside a crosswalk, and faces up to three years in jail.
Nelson’s son was struck and killed by an admitted drunk driver – Jerry L. Guy – 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 roughly a half mile in either direction to crosswalks.
A.J. pulled away from his mother and darted into the path of Guy’s 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.
Guy served six months in jail, while Nelson faces a jail sentence of up to three years.
The Cobb Solicitor General’s office did not provide an oral argument. But in a 29-page brief acquired from the Court of Appeals by the Atlanta Journal-Constitution, Cobb Solicitor General Barry E. Morgan questioned Tankersly’s decision to grant an appeal while defending the evidence used in Nelson’s initial conviction.
“After the trial, the trial court … without providing its rationale, granted appellant a new trial,” the brief said. “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’s brief identified two points to support denying the appeal:
1. “The meaning of the term ‘roadway’ in [Georgia’s statute for crossing a road outside a crosswalk] is unambiguous,” and Nelson “was charged with violating this statute because she crossed Austell Road … when it was unsafe to do so.”
2. “To adopt [the] Appellant’s assertion – that a pedestrian has the right of way across all lanes of traffic on a divided highway when she sets foot in the first lane of travel – would create chaos and danger for both drivers and pedestrians. 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.”
But Sadow argued that the incident was an accident and shifted the blame to Guy’s impaired driving, saying that motorists can’t expect to never have obstructions in their way.
“Testimony from [witness Yolanda] Williams was that she had sufficient time to stop,” Sadow said. “The driver of a motor vehicle has no right to assume that the road ahead of him is clear.”
After his arguments, Sadow said further prosecution of the case was pointless.
“It serves no valid legal or judicial purpose,” Sadow said.
The Court of Appeals has two terms, or up to six months, in which to make a decision. Until then, Nelson’s retrial, which had been scheduled to begin last November, is on hold.
Nelson acknowledged that it was difficult to sit by and watch, powerless, as her fate was decided.
“It’s hard, but all I can do now is wait,” she said.
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