Hard to believe; pedestrian guilty of vehicular homicide

Posted in Latest Reports

Date: July 18th, 2011, 10:08 pm

By Maria Saporta

It is an incredible “man bites dog” story.

A Cobb County pedestrian’s four-year-old son is killed by a hit-and-run driver who admittedly had been drinking. But it’s the mother who gets charged and convicted with vehicular homicide.

The mother, Raquel Nelson, was guilty of walking across Austell Road from the bus stop to her apartment complex with her three children. She had no car, yet she is charged with vehicular homicide.

Sally Flocks, founder of PEDS, a pedestrian advocacy organization, had told me a couple of weeks ago that this case was coming up and that she was going to testify in support of the mother.

But if the mother was found guilty, Flocks said it could have far-reaching implications on not only the rights of pedestrians, but of their legal vulnerabilities.

I had not kept up with the legal developments. And then on Monday evening, David Goldberg — who had been a colleague at the Atlanta Journal-Constitution — sent me a story he had written on the case, suggesting that I might want to post it.

The story of convicting a grieving mother who was only guilty of trying to cross the street is almost unbelievable.

Yet Goldberg gives a detailed account of the case, the numerous pedestrian fatalities that occur in metro Atlanta each year, and then he rightfully questions who should be viewed as the true guilty parties. The highway designers? Traffic engineers? Transit planners? The land-use regulators? Or all of the above.

Obviously the driver killed a four-year old boy with his car. But the problem is systemic of the kind of city we have developed — one where the rights of cars trump the rights of pedestrians.

The fact that six jurors actually ruled that Nelson was guilty is evidence that we have lost our way; and Goldberg’s story helps us realize how out of whack our car-obsessed our society has become.

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health_impact

I can't even believe how this decision would stand up legally. State code is actually pretty good about acknowledging pedestrian right-of-way (O.C.G.A. § 40-6-92): (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway. ... (c) Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.

As best I can tell, this occurred between two unsignalized intersections (Austell Cir and Sandtown Rd) so it was fully legal for the family to cross there. Entering the roadway is a vague term, but if they were already at the median when the driver was approaching, it would be hard to argue that they had not entered the roadway. Which meant they were not required to yield (implying that they did have the right of way).

Even if this is a bit ambiguous, it should be clear enough to make a jury think twice. Not to mention the fundamental requirement in state law that "A driver shall exercise due care in operating a motor vehicle on the highways of this state" and " No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection ... and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions." Anyone who operates heavy machinery on public roads is required, by law, to slow down in response to conditions so they can avoid losing control and can react in time to unexpected changes in conditions. If there was a group of pedestrians in the process of crossing the street, including small children, this driver should have slowed down enough to be able to stop in time if a child did run out into the road. We are all fooling ourselves if we think it's okay to do otherwise.

But fundamentally, Mr. Goldberg has it right. These are all individuals trying to make some sort of a rational decision in a completely dysfunctional system. Even if there had been a crosswalk, enforcement would be lax and the driver probably wouldn't have stopped for people in it. The needs of non-drivers were not adequately addressed by the road paid for with their own property and sales taxes (even if they rent, some of that goes toward the property tax). According to Census data (2005-2009 ACS), 10% of the households in the census tract at the crash location don't even own cars. I'm sure some people will make snide remarks about people who can't afford cars, but are they willing to raise the minimum wage so everyone can buy a car, and suffer the additional congestion that would result? At what point does the danger and lack of access faced by lower-income families become a civil rights issue?

We should have choices. We should be able to walk safely across the street where needed, not half a mile away. We should build streets that encourage people to drive safely and respectfully, that have sidewalks and crosswalks.

The Last Democrat in Georgia

@health_impact

The conviction and prosecution of this grieving mother by a jury of her "peers" and the Cobb DA isn't about "protecting the safety" of pedustrians and motorists, it's about sending a message to a segment of the population (the low-income segment without cars that is bus-dependent) that many long-time Cobb residents and the power structure of that traditionally ultraconservative suburban county believe is responsible for the blight and the perceived decline of the community they control from an exurban/suburban paradise into an urban cesspool.

Do you really believe that any of those six jurors who voted unianimously to convict, prosecute and sentence a grieving mother to a jail term that is longer than the self-admitted notoriously bad driver who hit her family then ran and attempted to hide could empathize with a young, single mother without a car who was just merely trying to cross a busy street to get to her home on foot after exiting the bus?

I don't know the exact makeup of the jury, but I'm pretty sure there probably weren't any young bus-dependent single mothers without cars who live in apartments on that jury. I'm pretty sure that the jury likely consisted of aging, married homeowners, likely retired, who all drove to the courthouse in their own cars (because people with day jobs are not nearly as likely to report for jury duty).

To the demographic of long-time automobile-owning very conservative Cobb residents and homeowners that likely made up the jury, people like Ms. Nelson are the cause of everything that they perceive to be wrong with their beloved once-exurban community that conservatives like them once COMPLETELY DOMINATED in every since of the term socially, politically and population-wise. This is a segment of the population that hates the local bus service (CCT) and wants it abolished for fear that it is quickly turning once-exurban Cobb into something that is like urban inner-city Atlanta. To them, the bus service is bringing in low-income blight from Atlanta and driving all of the prosperity and younger like-minded conservative thinkers out farther into Cherokee and Paulding Counties.

The effect of this ongoing ideological and demographic power-struggle on prosecutions like this should not be underestimated as those who make up this very conservative cultural and ideological power structure in Cobb are very anxious and upset about the changes taking place in a community that has traditionally been a hotbed of lily-white ultraconservative ideology (home to ultraconservative icons and institutions like Lester Maddox, Larry McDonald and the John Birch Society) and that has for most of its existence seen itself as an exurban community that was a world away and far removed from the blight and ills of the more diverse and urban city of Atlanta.

Idiotic, callous and cruel prosecutions like these are a reflection of the angst this conservative power structure is exhibiting in seeing their beloved hotbed of ultraconservatism turn from a homogenous exurban paradise into a much more urban socioeconomic and ethnically diverse district of Atlanta.

There's no way on God's green earth that a grieving mother should spend more time in jail, much less even a day, than the bad driver who was under the influence of drugs and alcohol when he hit her and killed her son and who had previous convictions for two hit-and-run accidents on the same day, one of which caused serious injury to another driver.

LisaCiancio

Prosecutor who's responsible (btw, my info is from the Cobb Co DA, so I trust this to be credible): Barry Morgan, Solicitor General

Barry.Morgan@cobbcounty.org

inatl

This is a very disturbing story, Cobb should be ashamed of themselves. David Goldberg's story has the details that Sally Flocks describes, it is a disaster waiting to happen. And it did. Cobb should be sued for its utter disregard of pedestrians.

Sally Flocks

I visited the crash location prior to Raquel Nelson's trial. The bus stop where she and her children attempted to cross the street when her child was killed is located three-tenths of a mile from the nearest crosswalk, the equivalent of three city blocks. It is unreasonable to expect pedestrians to walk 1500 feet to cross the street.

In the section of Austell Road approaching Austell Circle, where the bus stop was located, a left turn lane increased the width of the four-lane divided highway to five lanes. It also narrowed the median to just 3 feet. On the evening of the crash, everyone who exited the bus made it to the median safely.

If the bus stop had been located just 140 feet to the north, the family would have been standing on a 16 foot wide median as it waited for a safe gap in southbound traffic. This would have given Raquel Nelson a much better chance of controlling her 4-year old child as they waited to cross. In addition, the final leg of their crossing would have been two lanes instead of three. When Mr. Guy’s vehicle plowed into the child, he was in the lane closest to the sidewalk. If the bus stop had been located properly, the child probably would have made it to the sidewalk by the time Mr. Guy sped by.

At the trial, the prosecutor defined "reckless conduct" as a gross deviation from what a reasonable person would do. Since everyone who exited the bus crossed at the same location as Raquel Nelson, her decision to cross their did not deviate from what reasonable people would do. Wasn't it more reckless for CCT to have located the bus stop at a location with a 3 foot wide median when a 16 foot wide median was available so close to the apartment building?

jals

Parents that put their families life in danger, simply because they are too lazy to walk to cross walks, must be held accountable. As I travel Spring Rd in Smyrna daily I consistently see mothers and fathers with two/three/four children in hand dart across the heavily traveled road. They stand in large groups in the median waiting for the next short break in traffic. Yet, the cross walks in this area are less than 25 yards apart. On top of this, there is a convenient pedestrian bridge that crosses the road. What kind of example are these parents setting for their kids? I think it is totally irresponsible to claim parents who put their kids lives at risk are innocent.

The Last Democrat in Georgia

Maria, I agree that this mother grieving the death of her four-year-old son should not be charged with vehicular homicide in this case especially when the driver who hit her and her family was illegally driving under the influence of both prescription drugs and alcohol, did not stop after the accident, did not report the accident and had a criminal record that included two hit-and-runs on the same day, one of which caused serious injuries to the other driver.

Cobb County's prosecution of Ms. Nelson follows a pattern of the strict punishment and prosecution to the fullest extent of the law by the county of pedustrians hit by motorists while crossing streets and not necessarily having the right-of-way to do so (there was a similar case earlier this year where a family of pedustrians with a mother and children were hit, seriously injured and killed crossing South Cobb Drive near Smyrna and the county pursued homicide charges against the pedustrian mother with no charges pursued against the driver).

It is well known that Cobb County actively pursues the prosecution of pedustrians hit by vehicles who are not in a marked crosswalk because the Cobb Police and District Attorney's philosophy is that the pedustrian would not have been hit and the accident would not have occurred if the pedustrian were not illegally crossing the street outside of a crosswalk and without the aid of a traffic signal, though in this case the accident happened on a stretch of Austell Road that is lined with lower-income apartments filled with tenants who are most likely to be pedustrians and on a stretch of road where there are no marked crosswalks for around to three-fourths of a mile (looks like the nearest marked crosswalk is about is just over a fourth-of-a-mile from where the accident occurred).

Cobb County has a reputation of abiding by the letter of the law in most respects when it comes to enforcement even of minor offenses as the county government is a strong believer and fervent practicioner of the "Broken Windows Theory" approach to law enforcement. But in this case the grieving mother has been punished enough with the death of her four-year-old son and prosecuting her and giving her a felony record for not having a car and attempting to cross a busy street to get to her residence directly across from the bus stop seems to be just a bit much at best and cold and callous overall.

Though it must be noted that the overreaching prosecution of pedustrians in Cobb County is but a symptom of a larger culture war of sorts between longtime Cobb County residents, a faction of which who believe the county government should do all that it can to keep the county a suburban haven for higher-income residents and even attempt to return it to it's exurban nature of yesteryear, and newcomers who are more racially, ethnically, socioeconomic and politically diverse than the longtime residents who basked in the glory days of when the county was a predominantly white, higher-income exurban ultraconservative political stronghold.

There's a very, very strong resentment amongst longtime Cobb residents that the county has turned into a community that is much, much, much more urban and even somewhat more cosmopolitan in nature as the county has been almost completely enveloped by a rapidly growing and urbanizing Metro Atlanta.

Many longtime residents think that the more diverse newcomers and the things that have accompanied them like lower-income housing and bus service are destroying Cobb County and the misguided prosecutions of pedustrians like Ms. Nelson are kind of a way to maybe deter more lower-income transplants from relocating into the county.

There's a very vocal contingent of ultraconservative longtime Cobb residents who seriously want to completely abolish the bus service in an attempt to stop the county from becoming more urban, but as the county has grown to become a community of close to 700,000 residents and a key part of the expanding urban core of Metro Atlanta it's obviously a little too late to turn back the clock to the days when Cobb County was an ultraconservative suburban/exurban stronghold that resembles something close to what Cherokee County is today (and Cherokee was the STICKS).

To the ultraconservative Cobb power structure and establishment, transit-dependent pedustrians like Ms. Nelson are a symptom of everything that's wrong with a rapidly-changing Cobb County and people like her need to be made an example of to send a message so that lower-income people like her will know that they are not readily welcome in the county like they may appear to be in Fulton, DeKalb and Gwinnett Counties.

You also need to take into consideration the totality of Cobb's history as a totally automobile-dominated ultraconservative high-income suburb/exurb as to why pedustrians may get very little, if any, sympathy from a power structure that is desperate to maintain its loosening grip on a rapidly changing county that may soon mean the end of the dominance by that power structure.

Cobb County's prosecution is much more than just a simple misunderstanding or even refusal to understand the issues that pedustrians face and is very much a politically motivated attempt by the current power structure and political establishment to maintain power that is steadily slippling away as Cobb less and less resembles the community of its post-World War II-era ultraconservative exurban/suburban glory years.