Prosecutors and Grieving Parents

Monday, July 18th, 2011

When I’ve pointed out some hypothetical situations where an innocent parent or caretaker could be unjustly charged with the death of a child—cases where a parent may be guilty of poor decisions or bad parenting, but hasn’t broken any laws—the response is usually that prosecutors would never a grieving parent or caretaker under those scenarios. If you’re a regular reader of this site, you’re probably already darkly chuckling at the naivete of that assumption. There already seems to be a rush to find criminal culpability when a child dies. This ProPublica investigation, which coincidentally came out just before the Casey Anthony verdict, documents a number of child death cases in which law enforcement officials have pressed for and won criminal convictions when the evidence strongly indicated that the death was an accident.

Enter the Marietta, Georgia, case of 30-year-old Raquel Nelson, which has been bandied about in the comments section the last few days. Last April, Nelson was crossing a street with her three children when her 4-year-old was struck and killed by a car. She was crossing at an intersection, but was apparently not in a designated crosswalk. The driver who killed her had been drinking, taking painkillers, and was blind in one eye. He also has two prior hit-and-run convictions. Nelson and her daughter were also struck and injured. Residents of Nelson’s apartment building have complained to the city about the intersection. The nearest crosswalk is a half mile away.

If we have as little to fear from overly aggressive prosecutors as supporters of Caylee’s Law claim, we could expect the prosecutor in this case to show some discretion and mercy for Nelson, right? Yes, she admits to jaywalking. Yes, she erred, and subjected her kids to unnecessary risk. But she just lost her son. It’s hard to fathom a more punishing, heartbreaking sentence. Moreover, the underlying “crime” here was a misdemeanor, one most of us commit every day. So mercy, right?

Of course not. Nelson was charged with second-degree vehicular homicide. Which is insane. She was convicted last week. When she’s sentenced later this month, she could spend more time in jail than the man who struck and killed her son. The prosecutor will say he was just enforcing the law. The jury will say they were just applying it. Both are excuses to duck responsibility (prosecutors can decline to bring charges, juries can nullify). But if both are true, then the time to prevent unjust the unjust application of well-intentioned laws is to anticipate those applications while the laws are being written and proposed. That means interpreting the most ridiculous, merciless, farfetched possible applications of the law, then assuming that somewhere, some prosecutor will attempt to apply the law in exactly those ways.

This morning, I debated Caylee’s Law on Oregon Public Radio with the legislator proposing the law in that state. He said prosecutors need another “tool in their toolbox” to go after bad parents like Casey Anthony. At the same time, he also acknowledge tha cases where the law would be necessary were probably extremely rare. (Challenge to supporters of this law: Find me three other cases where a parent failed to report a missing child for days on end, was widely suspected of killing that child, but was acquitted of murder charges in court.) But just because legislators intend for the law to be used in very limited circumstances doesn’t mean prosecutors won’t attempt to use the law more frequently.

Prosecutors don’t need more “tools” in these cases. They have plenty. They need more discretion. And empathy. And a more complete understanding of justice.

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56 Responses to “Prosecutors and Grieving Parents”

  1. #1 |  John David Galt | 

    I see “discretion” (on the part of police and prosecutors) as the core of the problem. Police and prosecutors are human beings, and if they are allowed to make choices as to what the law means or who deserves to be charged, they will make those choices in ways that uphold their prejudices, which violates the rule of law.

    As far as I’m concerned, the system is supposed to work only as follows.

    1. Lawmakers have a duty to make only “bright-line rules”, rules that make it absolutely clear who is breaking the law and who is not. Judges have a duty to enforce this requirement on lawmakers by always interpreting in favor of the defendant any part of a law that can be read more than one way.

    2. Lawmakers have the additional duty to draw those “bright-line rules” in such a way that every single person who violates them deserves what the law will do about it. Juries have a duty to enforce this requirement by refusing to convict defendants who don’t deserve it.

    3. Police and prosecutors have the duty to enforce every law, every time. They are not to be allowed discretion because that will result in profiling; and they are not to presume to decide whether or not a person is violating the law: that power belongs only to judges and juries. (If people are violating a law so frequently that it’s impractical to obey this commandment, then the law is in violation of #1 or #2 and must be discarded.)

    4. Neither police nor politicians are entitled to issue arbitrary orders or bust people for “contempt of cop”, and no law can validly give them that authority. Those powers belong only to judges. Any exceptions for emergency situations should require a judge, not a politician or cop, to order them.

    5. Neither politicians, nor police, nor prosecutors, nor judges must ever have immunity from either prosecution or lawsuit if they violate anyone’s rights under the Constitution. Victims must be allowed to prosecute such cases themselves if the state won’t. And in any such case, the presumption that the ordinary citizen is innocent must trump the presumption that the accused official is innocent.

  2. #2 |  Cyto | 

    I’ll add to Gault’s list: If the very name of the effing crime has the word “vehicular” in it and you do not own, posses or drive a vehicle, then by definition you cannot possibly be guilty of the crime in question.

  3. #3 |  c andrew | 

    CSP Schofield said,

    The more I read this blog, the more I think we need to give juries something stronger to work with than nullification. Something along the lines of “We find the defendant not guilty, and the Prosecutor an egregious waste of air. We recommend that he be hanged.”

    While not quite as viscerally satisfying, I think that any criminal jury, once they’ve rendered a verdict in the case at hand, should be able to re-convene themselves as a grand jury and indict anyone in the process they just witnessed; Prosecutor for suborning perjury, Deputy for lying on the stand, expert witness for same, etc. I don’t think we should exclude the judge, either.

  4. #4 |  Patty Bee | 

    Aside from an over-reaching prosecutor, here’s another point from

    “Nelson, 30 and African-American, was convicted on the charge this week by six jurors who were not her peers: All were middle-class whites, and none had ever taken a bus in metro Atlanta. In other words, none had ever been in Nelson’s shoes.”

  5. #5 |  bacchys | 


    I listened to the podcast of the Oregon show. You did a good job, but I’d hoped you’d have mentioned the Fifth Amendment and what it would mean with respect to these laws (assuming the Court hasn’t gutted it further by the time one of these cases gets prosecuted).

  6. #6 |  Mike | 

    A question: even given that the law can (somehow) be stretched to cover this case, what’s the incentive to do it? No prosecutor is going to run for re-election or higher office on the basis of putting a bereaved jaywalker in jail. Is it purely about conviction number and rates, do you think? Or does it get spun as “punished a criminally negligent parent”?