Raquel Nelson plugged her ears with her fingers and held back tears Wednesday.
For the second time this year, she had to listen to a Cobb County assistant solicitor accuse her of being responsible for the death of her 4-year-old son, A.J.
Once more, she faced jail time, defending herself against charges she’d been convicted of before – vehicular homicide, reckless conduct and crossing a dark Marietta street outside a crosswalk one April Saturday in 2010.
But this time, things were looking better for her.
A Cobb County State Court judge on Wednesday dismissed the reckless conduct charge against Nelson, and will decide before the Oct. 25 trial date whether to drop the remaining charges.
“I’m optimistic,” Nelson said. “It didn’t exactly end the way I though it would. I had hoped that it would all be over today.”
The other two charges remain, although Judge Katherine Tanksley said she would consider the pretrial request of Nelson’s attorney, Steve Sadow, to dismiss the case.
"The state needs to have evidence that there was gross deviation from the statutes" she's charged with violating, Sadow said.
Nelson’s plight, in the meantime, has captivated a nation sympathizing with single mothers like her who have been seemingly left behind by sprawling communities growing more and more beyond the reach of pedestrians and public transit users.
When she was convicted of the same offenses in July, members of the NAACP and the Rev. Al Sharpton’s National Action Network were on hand to show support as national reporters from ABC, Reuters and CNN looked on.
Nelson was facing up to three years in prison for vehicular homicide – after losing her son and being hit herself by an apparent serial hit-and-run suspect who got six months in jail for his part in the incident.
When Tanksley offered Nelson a choice between the one-year probation sentence the solicitor’s office recommended or a second chance at the trial, Nelson opted for the do-over.
“I don’t have a choice,” she said Wednesday, when asked how she was able to continue.
On the night her son was killed, Nelson had been out with A.J. , her 9-year-old daughter and toddler on her arm, and had missed a Cobb County Transit bus back to their apartment.
Arriving home around 9 p.m., she had the choice of taking her children walking a half mile in either direction to lighted crosswalks before walking back to her apartment, or taking the more direct route across Austell Road.
She and other bus riders took the shorter path and crossed Austell Road, waiting on a median, looking both ways to be certain the way was clear, then stepping into the roadway to complete the trek.
When her older daughter ran to the sidewalk ahead of her, A.J. pulled away from his mother and darted into the street. An oncoming van driven by Jerry L. Guy sped up, witnesses testified in the earlier trial, and hit A.J., along with a terrified Nelson who was holding her toddler while trying to save her middle child.
Wednesday in court, assistant county solicitor Jim Newkirk argued that Nelson was guilty of the charges because she didn’t do an adequate job of keeping A.J.’s hand from slipping out of her grasp and running into the street.
“It’s very foreseeable that the child could’ve been in danger [while crossing the street] if she doesn’t hold his hand,” Newkirk said.
Tanksley, who heard the first case, challenged Newkirk’s reasoning.
“So you’re saying you only get charged with a crime if you don’t make it across the street?” the judge asked.
Sadow noted that one of the witnesses of the April 2010 incident, Ashley Jones, also crossed the street with a small child, but wasn't charged with reckless conduct or not using the crosswalk.
"If this statute is not unconstitutionally vague in this situation, why [isn't] ... Miss Jones charged with reckless conduct?" Sadow asked the court. "But for the tragedy, there would be no prosecution."
Nelson has said all along that she wanted to be cleared completely of the charges against her. That is why she can sit through another trial, she said after the hearing.
“The event itself is going to be with me forever,” she said, reflecting again on Wednesday’s small win. “It’s not a total victory for me. But I’m not dead yet.”
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