Javier Velez with his mom and dad.
An Egg Harbor City man accused in a crash that killed a sleeping 8-year-old boy in July will remain in jail after the state appealed a judge's decision to release him.
Edward Johnston, 25, was drunk, high and speeding when he struck the parked vehicle with Javier Velez asleep in the back seat, the state alleges.
The state moved to detain him, but Judge Donna Taylor found that his lack of criminal history and conditions she could put in place overcame the presumption of detention that comes with the first-degree charge.
The Atlantic County Prosecutor's Office responded quickly to that decision, getting the judge to grant a stay that will keep Johnston jailed pending an appellate court's response.
Orlando Velez was packing up his car after crabbing with his two sons July 23. Jerry was helping his dad, while older brother, Javi, laid down in the back seat and fell asleep.
Rescue workers extracted the trapped child. But Javier Velez died at the scene.
The road westbound was closed for several hours.
Johnston was taken to the AtlantiCare Regional Medical Center's Trauma Unit Atlantic City, where his blood was taken.
Toxicology reports showed marijuana in his system, "but that does not mean he was under the influence of marijuana," defense attorney Charles Nugent Jr. told the judge.
He added that Johnston's blood-alcohol content was "not high."
Chief Assistant Prosecutor Seth Levy disagreed with that assessment, saying the .122 is "way over" the limit of .08.
He also thanked Nugent for mentioning that Johnston was up for almost 24 hours prior to the fatal crash.
"It was a tragic accident," Nugent said.
"This was an isolated incident," he said. "If we cut that one night out of his life, he has lived an exemplary life."
Nearly a dozen character letters agreed, using words like humble, generous, compassionate and honest to describe Johnston, his attorney said.
Nugent also pointed to the public safety assessment used to help determine whether a defendant is held under bail reform. It put Johnston at the lowest risk for both failures to appear and dangerousness.
However, it still recommended he be held due to the presumption of detention in cases that carry a potential life sentence.
Superior Court Donna Taylor decided against detention, finding that there were conditions she could put in place to allow for Johnston's release.
The judge's ruling including revoking Johnston's driver's license and requiring him to attend Narcotics Anonymous or Alcoholics Anonymous meetings twice each week, with proof.
Johnston is employed in HVAC at Resorts Atlantic City, although the child's mother said the casino had said he was fired.
Kaylah Smith was upset with the judge's decision.
"A judge heard the prosecutor say, 'He killed a little boy,' and moments later, she released him," Smith said.
"Justice is not being served correctly," the grieving mother added. "If we have to sit around and suffer daily, why shouldn't he? Why should he be able to be home for the holidays, but my 8-year-old son will never be home with with us again? How is that fair at all?"
She expressed relief when BreakingAC informed her of the stay that will keep Johnston in jail for Thanksgiving.
"That was the right decision," she said. "Everyone was confused and shocked that that happened. It should not be any other way. He should not have been able to get out."
(Editor's Note: While the detention hearing was heard as a case where the presumption is for incarceration, the state Judiciary clarified that this is not such a case. The presumption was for release, with the burden still falling on the state to overcome.)
