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 |  terraformer | 

    “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.”

    I believe you are right, there are plenty of “Tools” involved in these prosecutions.

  2. #2 |  Aresen | 

    “Prosecutors don’t need more “tools” in these cases.”

    Doesn’t mean they can’t be tools. Gotta jack up that conviction rate.

    Don’t know if the prosecutor is elected or appointed; if the former, I hope his opponent in the next election makes this case the center of attack ads.

  3. #3 |  Aresen | 

    @ terraformer

    Curse your fast fingers! ;)

  4. #4 |  Yizmo Gizmo | 

    Au contraire. *Defendants* need more tools these days.
    Let’s start by giving them back the 4th Amendment,
    and all the other gov’t usurpations that led to a staggering 2.3 million Americans behind bars. The Prosecutors and politicians that put them there
    have demonstrated that they can’t be trusted anymore…

  5. #5 |  SJE | 

    OT: The US Park Service is getting a reputation locally for jackbooted thuggery. We had the “no dancing at the Jefferson Memorial”, then the “no recording Taxi Commission meetings.” Now we have a pedicab operator who was tasered twice for “assaulting a police officer” despite contrary statements from witnesses. It seems that the underlying story is that the Park Service has some contract with tour bus operators, and ANYONE doing anything near the National Mall (including Taxis), is considered “commercial activity.”

  6. #6 |  fwb | 

    Hell, we need fewer laws and more CONTROL over the persecutors, er prosecutors, and police. These servants need to be kept in their place by laws that make them 100% responsible for doing something wrong. There should be NO immunity. If they we not immune/protected, they would do a BETTER job. Immunity is an excuse to do piss poor work.

  7. #7 |  Immanuel | 

    I’m confused by the case. It is not illegal in most places (including as far as I can tell Georgia) to cross the street at an intersection just because there is no paint or sign indicating a crosswalk. It’s called an unmarked crosswalk and it is 100% legal and explicitly stated in the law that is legal to cross and drivers must yield. In certain cases the law explicitly states that pedestrians can cross at nonintersections as long as approaching traffic is far enough away to stop safely.

    Reading the Georgia homicide by vehicle law I see no way for a nondriver to be guilty. In short, we clearly have nothing to fear from new laws being applied without discretion because prosecutors can apparently charge people with laws that are totally inapplicable. And as far as I can tell juries flip a coin on the guilty/not guilty thing.

    The real travesty is the lack of sufficient recourse against the other guy. She may lose a year of her life, but he is likely to kill or seriously injure someone else.

  8. #8 |  Highway | 

    Prosecutors already have plenty of ‘tools’. Anyone who gets in their sights gets hammered with charges, nailed to the wall, and screwed out of the rest of their life.

    Or maybe it’s that too many prosecutors ARE tools.

  9. #9 |  The Ripper | 

    There’s no reason for a new law simply because the prosecution can’t prove its case on the original charges. This would just open the floodgates to dozens of ridiculous felonies (the ‘three strikes’ laws already come to mind).

  10. #10 |  Julian | 

    @Immanuel

    If might have something to do with the type of intersection. The rules at a “T” intersection could be different… especially for traffic passing straight through the intersection with no stop or yeild sign.

  11. #11 |  Marty | 

    there’s a huge disconnect between what happened and what’s being reported… This seems like a layup for a cub reporter.

    This report almost sounds like the prosecutor wrote it: http://www.wrdw.com/crimeteam12/headlines/Marietta_mother_convicted_of_vehicular_homicide_125560663.html

    surely, her attorney is advocating for her?!! I’m trying to find more info on this- it looks horrible.

  12. #12 |  Stephen | 

    “And a more complete understanding of justice.”

    I don’t think prosecutors have ANY “understanding of justice”. The word simply does not have the same definition to them as it does to the rest of us.

  13. #13 |  Roy | 

    The problem is that prosecutors, in general, are no longer seeking justice. They are seeking scalps – trophy cases in order to enhance their conviction rate. It doesn’t matter how serious or trivial the offense (or non-offense) might be, to them a conviction is a conviction.

    As long as a prosecutor’s career advancement continues to depend on conviction rate, this will continue to get worse.

  14. #14 |  Jerri Lynn Ward | 

    I found this in one of the comments. The link is too old:

    Some more background information on the incident from the Atlanta Journal-Constitution (http://www.ajc.com/news/ja​ywal

    On April 10, she and her three children — Tyler, 9, A.J., 4, and Lauryn, 3 — went shopping because the next day was Nelson’s birthday. They had pizza, went to Wal-Mart and missed a bus, putting them an hour late getting home. Nelson, a student at Kennesaw State University, said she never expected to be out after dark, especially with the children.

    When the Cobb County Transit bus finally stopped directly across from Somerpoint Apartments, night had fallen. She and the children crossed two lanes and waited with other passengers on the raised median for a break in traffic. The nearest crosswalks were three-tenths of a mile in either direction, and Nelson wanted to get her children inside as soon as possible. A.J. carried a plastic bag holding a goldfish they’d purchased.

    “One girl ran across the street,” Nelson said. “For some odd reason, I guess he saw the girl and decided to run out behind her. I said, ‘Stop, A.J.,’ and he was in the middle of the street so I said keep going. That’s when we all got hit.”

  15. #15 |  GaryM | 

    Saying “prosecutors need more tools” amounts to saying, “Make everybody guilty, and let the prosecutor sort them out.”

  16. #16 |  Jerri Lynn Ward | 

    Found correct link: http://www.ajc.com/news/jaywalkers-take-deadly-risks-527488.html

  17. #17 |  Kristen | 

    SJE – did you hear Vince Grey saying they’re considering regulation of the pedicabs? They don’t know what form the regulation would take, but they’re basically saying it’s gotta be regulated somehow, because, ya know, it exists.

  18. #18 |  J.S. | 

    I’ll have to look around for your OPR interview. Might remind that senator of the Mcminnville “party boy” case, originally charging middle school boys with felony sex abuse for spanking students in school:

    http://blog.oregonlive.com/breakingnews/2007/05/charges_reduced_in_mcminnville.html

  19. #19 |  Jim Collins | 

    We had the exact opposite happen near where I live a few years ago. A 2 year old shot and killed himself with a 9mm semi-automatic that was left in an end table drawer. There were no charges pressed, it was determined that the loss of the child was enough punishment. Thee was even a collection taken up for the parents. No I’m not anti-gun, just the opposite, but you figure out if a 2 year old has enough strength to work the slide on a 9mm?

  20. #20 |  Highway | 

    Looking at this issue of ‘implied crosswalks’ and whether there should be one in this case, I’m thinking that the answer would be ‘no’. Looking at the street (from the other thread, someone linked the mapping), there is sidewalk on both sides, but at the T-intersections, the continuous road side has no sidewalk ramp or break. It just continues along the roadway, and the sides with the intersection have ramps that only direct across the side street, where there is a crosswalk.

    And even in ‘implied crosswalks’, from what I’ve found, there is a responsibility to the pedestrian to yield right-of-way to vehicles. Pedestrians seem to only command right-of-way within marked crosswalks.

    But no matter what the law about crosswalks is, there is NO WAY that the mother should have been charged with anything.

  21. #21 |  Mattocracy | 

    Cobb County is a big time “law and order” municipality. There is no compassion for law breakers here. Nancy Grace has a lot of viewers in this neck of the woods.

  22. #22 |  Zargon | 

    Well, as far as I know, pedestrians command the right of way everywhere. Even if they’re obnoxiously jaywalking across a busy street, it’s my understanding that the driver is always at fault and the pedestrian never is.

    It seems to me more a matter of culture how much pedestrians push that. At my college town, people would step fearlessly into the street and expect cars to stop. Around where I am now, people tend to wait until they can get across the intersection without relying on drivers to stop or even slow down for them, even in clearly marked crosswalks. Even for the crosswalk in front of the hospital with a crosswalk sign in the middle of the road, people will wait until the coast is clear or until I’ve stopped for them.

    And, of course, this is yet another case of a prosecutor ruining multiple lives for a notch on their belt.

  23. #23 |  BamBam | 

    Radley, do you know where can I listen to you debate that idiot Lindsay? I wrote to him and included the link to your RT interview and suggested he stop killing liberty.

  24. #24 |  John C. Randolph | 

    To the typical shyster politician who becomes a prosecutor, “justice” means “winning”.

    -jcr

  25. #25 |  Stephen | 

    #19 | Jim Collins |

    I’ve been making my kid disassemble and reassemble my 9mm so much that he is just not interested in it any more. If you are going to have guns around children, make them boring.

  26. #26 |  Lefty | 

    I live in a city so I end up jaywalking frequently. I don’t think I would do so with a 4 year old however. That seems needlessly careless and maybe legally negligent. A homicide charge is way over the top however.

  27. #27 |  Monica | 

    Prosecutors also need integrity, and sadly we all know from reading The Agitator that many will step over anyone in their way to look “tough on crime.” We have far too many laws in their toolbox as it is.

  28. #28 |  Rich | 

    Perhaps I missed it but why is the name and adress of this prosecutor not made public by the media. They may enjoy immunity from the law but those who hire them should not enjoy immunity in the voting booth. Who hired him and who is gonna fire him. They never name names and they should.

  29. #29 |  Anon | 

    Yeah, of course we can trust prosecutors to use their discretion to only target those the law was intended to target, even when it doesn’t say so in the law’s text. That’s why the first prosecution which used provisions of the “Patriot Act” was against that most nefarious type of terrorist: a brothel (I think here is where I read about that).

    An Stephen @ #19: Good idea; I did the same with my AR-15.

  30. #30 |  C. S. P. Schofield | 

    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.”

  31. #31 |  Highway | 

    Zargon, I thought that was the case as well, but it turns out that it’s just not true. You might think it is because of the way people push the issue, but it’s not. This is the first one I could find and it describes Georgia.

    http://peds.org/resources/pedestrian_right_of_way/

    At best, it’s legal to cross the streets, but outside of a crosswalk pedestrians must yield to cars. So the question about this case then comes back to whether it was an ‘implied crosswalk’ or not. And while it’s at an intersection one way, it’s certainly not an ‘intersection’ on the far side of the road, where there’s no sidewalk ramp or break in the sidewalk.

    But I reiterate, charging her with vehicular manslaughter is abhorrent.

  32. #32 |  hamburglar007 | 

    @19,

    If the gun is already locked and cocked all you have to do is pull the trigger.

  33. #33 |  Mike T | 

    #21,

    Whenever I get a morality lecture from the law-and-order, beat-them-to-a-pulp types, the beatitudes shut them up…

    “Blessed are the merciful for they shall be shown mercy.”

    The opposite is also true (which even most “I’m not religious but I believe in God” types subconsciously accept):

    “Cursed are the merciless for they shall face the wrath of a righteous God.”

  34. #34 |  Leon Wolfeson | 

    Start by eliminating the idea of electing people to judicial offices, which inevitably leads to “hard on crime” crackdowns, to be popular.

    Sometimes, you really DO want career civil servants.

    For that matter, it’s why the CPS, a separate service to the Police, control most charging situations in the UK. They routinely tell the police there’s no case to answer, based on a “public interest” test they have to apply in every case.

    It’s not perfect, but it’s better than allowing the police to do it themselves. (The CPS was set up after a string of police charging abuses, for that matter)

  35. #35 |  Justthisguy | 

    As a native-born Georgia boy, I wish I still lived there. I would so love to get up an old-fashioned lynch mob against that lying Prostituting Attorney, and not hang him, that would be too much, but definitely strip him nekkid, smear hot tar all over him followed by chicken feathers, and ride him out of Cobb County on a rail.

    With video.

  36. #36 |  Justthisguy | 

    I betcha the Prostituting Attorney is either a Baptist or a Socialist. You know, the religions which most require their adherents to mind other peoples’ business?

  37. #37 |  Mike T | 

    With video.

    Why do you think YouTube was invented ;)

  38. #38 |  Rojo | 

    Radley, I’m glad that you mentioned that juries can nullify. I’m a big supporter of jury nullification, even if I find (some) of the politics of (some) of the people pushing it to be anathema.

    Jury nullification is a no-brainer to me. Why require jury trials if not as a protection against unjust law?

    I passed by the Portland, OR, courthouse some years ago and this group that was clearly exercised almost entirely about the Randy Weaver and Waco cases was passing out jury nullification pamphlets. Both those cases were travesties of unwarranted governmental violence and overreach, but I also find the politics of Weaver and Koresh to pretty awful as well. Nevertheless, this leftist (libertarian) took a look at the fliers to see if I agreed with the specific material and happily helped in handing them out once I saw that I agreed.

    One thing that I’ve often accused my leftist brethren and sistren of (and right-wing and centrist libertarians are guilty of this as well), is of selective attention to state injustice based on political belief. It was disgusting to me the way that the left ignored the patently obvious abuses surrounding the Weaver and Waco cases based primarily upon the victims politics.

  39. #39 |  Rojo | 

    … and by “leftist (libertarian),” I mean anarchist, just to be clear.

  40. #40 |  Cyto | 

    The last driver test I took in Georgia actually had a multiple choice question about pedestrian’s right of way. The correct answer on the test was “the Pedestrian always has the right of way”. This was in the early 90’s, so things may have changed since then. And of course the driver’s test and the law may not be the same thing…

  41. #41 |  Rojo | 

    While I’m commenting, I’d like to point you to this post by Daniel Larison, mostly because I’d like to see a pie fight: “Weakened Book Industry Suffers Another Body Blow, Libertarians Cheer”

    http://www.amconmag.com/larison/2011/07/18/weakened-book-industry-suffers-another-body-blow-libertarians-cheer/

    I don’t like Larison’s politics much, as far as I’ve been able to discern them, but he is valuable for living in the real world when it comes to multiple foreign policy issues and I do find myself agreeing with his ultimate conclusions on many, many things, Libya being number one among them right now (although I’d probably emphasize different things if I were making the argument).

    …but….

    Pie fight!

  42. #42 |  SJE | 

    Cyto: There is often a difference between what the law says and the prosecutors and police enforce. Most pedestrian laws give right of way to the pedestrian, and generally defer to the weaker party. e.g peds v cyclists, cyclists v cars, cars v trucks, etc.

    However, there is enough wiggle room in the law and there are many many cases where the cops and prosecutors will find a way to punish the injured party if they are “impeding traffic”

  43. #43 |  Jeff | 

    “And empathy.”

    So small-L libertarian is code for Obama socialist? That explains so much!

  44. #44 |  Rojo | 

    Calling Obama a socialist is just silly.

  45. #45 |  Jozef | 

    I work in Marietta, so I know a thing or two about the overall setting in which this happened. No, not the exact place or even the neighborhood, but the mindset of the people here. Marietta is the administrative center of Cobb county – a county that doesn’t want to integrate into the greater metro Atlanta transit system because it would make it easier for undesirables to move into the county. Correlated to this is the car culture in Cobb, which is much more prevalent than elsewhere in Atlanta. While Atlanta itself is very pedestrian-unfriendly, with few sidewalks that often look only a little better than forest paths, much of Cobb Co. has just paths on the sides of the road. As a result, the mindset in any kind of car-pedestrian collisions is against the pedestrian from the beginning, and it’s very difficult to change people’s views.

  46. #46 |  A Large Bottle of Catchup | Truth and Justice For All | 

    [...] Balko extends his remarks and opposition to efforts to pass so-called “Cayley’s Laws,” with a real-life example of a woman [...]

  47. #47 |  Rojo | 

    @ 43 ….and suggesting that Balko is an “Obama socialist” is even sillier.

  48. #48 |  Windy | 

    @ #43 Jeff, a small “l” libertarian is still libertarian, just not a member of the Libertarian Party. We non-party member libertarians still believe in the libertarian principles of “live and let live”, voluntaryism, and making no aggression against others. Calling us ANY kind of “socialist” is more than just silly, it shows a complete lack of any knowledge about libertarianism in general and about us in particular. You should really educate yourself about libertarianism before you spout off about it in future. Argue against our ideals based on real knowledge, not your own skewed and untrue beliefs.

  49. #49 |  Jeff | 

    Since when is the comments section of this blog sarcasm-impaired?

  50. #50 |  Rojo | 

    Oh, that’s me. I didn’t realize it was sarcasm. I am, apparently, sarcasm impaired. My apologies.

    In my defense, however, that was some pretty telegraphic sarcasm.

  51. #51 |  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.

  52. #52 |  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.

  53. #53 |  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.

  54. #54 |  Patty Bee | 

    Aside from an over-reaching prosecutor, here’s another point from http://t4america.org/blog/2011/07/18/prosecuting-the-victim-absolving-the-perpetrators/

    “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.”

  55. #55 |  bacchys | 

    Radley,

    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).

  56. #56 |  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”?

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