ATLANTA -- Raquel Nelson faced a dilemma after she was convicted of vehicular homicide in the jaywalking-related death of her 4-year-old son: She could serve a year of probation for the conviction or risk a new trial and lengthier penalty for a crime she doesn't believe she committed.
On Tuesday, though, Nelson picked a third option. Her attorney asked the Georgia Court of Appeals to dismiss all criminal charges against Nelson, arguing that prosecutors didn't have enough evidence to charge her with any crime involving the death of her son A.J., who was struck by a hit-and-run driver as Nelson led him across the street.
"This was crossing the street with other people to get home," defense attorney Steve Sadow told the three-judge panel. "It was unfortunate. And it was tragic. But that doesn't make it a crime."
Nelson was charged after A.J. was struck by a van as they jaywalked across a busy five-lane road in suburban Atlanta, and the case against her sparked outrage from activists who flooded the judge's office with letters and gathered thousands of signatures on an online petition to support her.
She and her three children had just stepped off a bus at a stop in Marietta late on the night of April 10, 2010 to return to her apartment complex across the street. Nelson led her children to a median instead of walking to a crosswalk three-tenths of a mile away, according to court records, when her daughter darted safely across the street and her son tried to follow.
That's when he was fatally struck by an oncoming van driven by Jerry Guy, who had been drinking earlier in the day while taking pain medication, was partially blind and had two previous hit-and-run convictions from 1997, records show.
The decision to prosecute Guy, who fled the scene, was an easy one. He pleaded guilty to hit-and-run charges and was sentenced to six months in prison. But the move to charge Nelson, the grieving mother devastated by her son's death, struck many as an overreach.
Prosecutors didn't make any arguments at Tuesday's hearing, an unusual move that surprised observers. But the Cobb County Solicitor's Office said in a motion that Guy wasn't to blame for A.J.'s death and that he was only charged because he fled the scene after the accident.
"The officers determined that A.J. was killed because his mother walked with him into the roadway under unsafe conditions," the filing said. "Another driver could have just as easily been the one that hit A.J. In fact, there is evidence that another driver did almost hit the group after the collision."
She was convicted in July of second-degree vehicular homicide, reckless conduct and jaywalking and sentenced to a year of probation. But she accepted a judge's offer of a new trial instead. The reckless conduct charge was later dropped, but Sadow and Nelson came to court on Tuesday to request the other two charges, both misdemeanors, be dismissed as well. If the charges aren't dropped and the case goes to trial, Nelson could face up to three years in prison.
Sadow doesn't want the case to get that far. He argued that prosecutors didn't have enough evidence to charge her with any criminal wrongdoing in crossing the street, and urged the court to find that the death was caused by the van's driver and not his client's unfortunate decision.
"She has to live with this the rest of her life," he said. "And it's critical that there has to be a determination that she did nothing criminally wrong."
The court isn't likely to make a decision for months, but Nelson said she can't have closure until it does.
"The waiting is very hard, but hopefully this will come to an end," she said.