The case of the jaywalking mom who was convicted of second degree vehicular homicide after her child was killed by a driver inspired compassion in the courts and outrage in the blogosphere, but thus far none of that has changed her legal status.
Raquel Nelson lost her attempt to have the Georgia Court of Appeals void her conviction Aug. 30. Following that decision, Cobb County Solicitor General Barry Morgan said he will continue with his prosecution of the case, once it’s returned to him from the appellate courts, saying he’s simply following the law. And Nelson’s lawyer, Steven Sadow, said he will pursue her appeal with the Georgia Supreme Court.
“We have filed a notice of intent to apply for certiorari in the Supreme Court,” Sadow said in an email Friday.
Nelson’s 4-year-old son, A.J., died on April 10, 2010. His head was crushed by a van that struck him as he attempted to cross Austell Road, a four-lane highway with a turn lane and a raised median strip, with his mother and two sisters, ages 8 and 2, according to court records.
Nelson, a single mother who at the time did not own a car, was returning from a day out with her children to celebrate A.J.’s birthday. They had stepped off a bus and were crossing the highway toward their apartment complex. The nearest crosswalk was 50 yards away. It was dark — about 9:15 p.m.
Nelson testified she was anxious to get her children home. She started across the street from the bus stop with other adult passengers. They stopped on the median to wait for traffic. But A.J. let go of her hand and darted into the traffic lanes without her, she testified. As she ran to catch him, carrying her toddler, all three were hit by the van.
The driver of the van was later found and arrested for leaving the scene. He admitted to taking oxycodone pain medication and consuming “two swallows” of beer earlier in the day.
He also said he had glaucoma in the eye that would have been closest to A.J., whom he said he never saw. He hit A.J. while swerving to try to miss the others, he said. Evidence did not show drugs or alcohol in his system at the time, according to court records.
Vision impairment was not ruled out as a contributing factor, but the record noted perception and reaction are negatively affected at night. “The officers ultimately concluded that Nelson’s actions, and not the driver’s actions, caused A.J.’s death due to her failure to safely enter the roadway,” according to a footnote in the appeals court opinion.
Last year a Cobb County State Court jury convicted Nelson of misdemeanor voluntary manslaughter. At Nelson’s sentencing, before a courtroom packed with supporters, reporters and cameras, Judge Kathryn Tanksley offered the sentence that prosecutors first presented as a plea deal — one year of probation with no jail time. Tanksley also offered to waive or reduce the applicable fees.
Then Tanksley presented another option on her own initiative: a new trial. And the judge advised Nelson that she had the right to change lawyers.
Nelson chose the new trial and found a new lawyer, Sadow, who then filed a plea in bar on the ground of double jeopardy, contending that her retrial was barred because the evidence was insufficient to sustain the conviction at the original trial. Tanksley denied the plea in bar, and Nelson appealed that decision.
The Court of Appeals affirmed Tanksley’s denial of the plea in bar, noting that the trial judge did not say the evidence was insufficient when she offered the new trial. The appeals court opinion examined the evidence, including testimony from eyewitnesses and Nelson.
“In our review, we likewise conclude that the evidence presented at trial was sufficient to support the jury’s guilty verdict. Consequently, the trial court did not err in denying Nelson’s double jeopardy plea in bar,” the appeals court said.
The court cited O.C.G.A. § 40-6-393 (c), which says that any person who causes the death of another, without an intention to do so, by violating traffic laws commits the offense of homicide by vehicle in the second degree.
“We note that the instant appeal presents a case of first impression in Georgia where a pedestrian or the parent of a child pedestrian has been criminally charged and convicted of second degree vehicular homicide after being struck by a vehicle while crossing the roadway in an unlawful manner. Nevertheless, nothing in the statutory language … prohibits a vehicular homicide conviction against a pedestrian or a non-driver in this regard,” the opinion said.
“This court cannot usurp the jury’s fact finding role in order to reach a different result,” the appeals court decision stated. Citing Bohannon v. State, 230 Ga.App. at 835(1)(b), the appeals court quoted, “While we have the greatest sympathy for [Nelson's] plight, this court must interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky, or as in this case, the heart-rending misfortune of the unlucky.”
The opinion concluded, “Since there was evidence authorizing the jury’s verdict, double jeopardy does not bar Nelson’s retrial. Therefore, the trial court’s denial of Nelson’s plea in bar was proper.”
The appellate case is Nelson v. State, A12A0812.