Attorney Steve Sadow asked Cobb County State Court Judge Kathryn Tanksley to drop all charges against his client. Nelson was convicted in July and sentenced to a year’s probation and 40 hours of community service, sparing her the three-year prison sentence she could have gotten for the charges. But Tanksley also made her the unusual offer of a new trial, which Nelson accepted.
Tanksley dismissed a charge of reckless conduct at the hearing Wednesday but said she needed more time to consider the defense’s request to dismiss charges of vehicular homicide and crossing a road in an unsafe manner. If Tanksley doesn’t dismiss the remaining charges, the trial is set to begin Oct. 25.
A new trial could wipe the probation sentence from Nelson’s record but could also mean a tougher penalty. Nelson said she’s willing to take that risk because she wants to clear her name.
“I would have hoped for it to be over today, but I’m optimistic,” Nelson said after the hearing. “The event itself is going to follow me forever. It follows me every day.”
Nelson was charged after her son A.J. was struck and killed by a van as they jaywalked across Austell Road at Austell Circle near Somerpoint Apartments in Marietta in April 2010. Nelson and her three children had just exited at a bus stop along a five-lane street after a long day. She was eager to return to her apartment complex across the street because it was getting dark, and she led her children to a median instead of walking to a crosswalk three-tenths of a mile away, according to court records.
Her daughter then darted safely across the street, but A.J. was struck and killed by the van when he followed. Nelson chased after them and was also struck and injured.
Sadow noted that two other women with a baby who crossed the street at the same time but who made it across safely face no charges.
“But for the tragedy, there would be no prosecution,” he told the judge. “We know that because the other individuals similarly situated were not prosecuted.”
Cobb County assistant solicitor-general Jimmy Newkirk argued that Nelson had an obligation to ensure that the roadway was clear and safe before crossing.
The van’s driver, Jerry Guy, has pleaded guilty to hit-and-run and was sentenced to six months in prison. According to court records, he had been drinking earlier in the day while taking pain medication, was partially blind in one eye, and had two previous hit-and-run convictions from 1997.
Sadow took on Nelson’s case free of charge because of “the wrongfulness of the prosecution,” he said.
“I don’t think a woman under these circumstances should be prosecuted in a criminal court for conduct that she has to live with every day of her life,” he said after the hearing. “She has to wake up every morning knowing that, but for what happened on that day, her child would be alive Criminal law was not designed in that way to punish. She didn’t do anything wrong … it’s a wrongful prosecution.”
Prosecutors have said they had little choice but to charge Nelson in her son’s death. But the case sparked outrage from activists who flooded the judge’s office with letters, held a rally and organized an online petition campaign that attracted more than 125,000 signatures.
“It’s a miracle in the morning that I can wake up with a straight head and take a ‘one day at a time’ approach and hope that I can get through the day and that everything is as normal as possible,” Nelson said. “I’m looking forward to this being over as soon as possible … Not a total victory, but I’m not dead yet.”
— The Associated Press contributed to this report