Justin Ross Harris remains in jail on child cruelty and felony murder charges. Rumors have already started circulating that he may be considering some sort of plea deal to avoid the death penalty.
I have no doubt that the one-sided presentation of evidence by the State at his probable cause hearing came as a surprise to his family and other supporters. But the case is far from over. In many ways, it has only just started.
Having watched the probable cause hearing and read many media reports about this case, I understand why many people have already decided that he is guilty of murdering his child. Most folks have moved on to wonder why they haven’t charged the child’s mother, and why the District Attorney doesn’t go ahead and announce that he’s seeking the death penalty.
I have defended serious criminal cases in Georgia for over twenty years and, while I do not have nearly as much information as Harris’ defense team should have at this point, here are five steps that I would take immediately:
1. Tell Harris to stop talking!
I cannot count the number of clients I have had who made incriminating statements during jail visits and on phone calls with family members from the jail. I have to tell them over and over again that “THESE CALLS ARE RECORDED.”
Most jails have big signs right above the phones informing anyone who can read that their conversation is being both monitored and recorded. These calls are routinely screened by law enforcement for any incriminating evidence they can find. This is especially true in a high-profile murder case where the State is trying to prove the intent to kill from purely circumstantial evidence.
The warrants recently released state that Harris was discussing with his family how to collect proceeds from the life insurance he had on his son. There may be a completely legitimate reason for discussing this issue – the family needs funds to maintain a defense and, presumably, for other expenses – but this is not the time to discuss it. The investigation is ongoing and the police will use everything they can find to bolster their case against Harris. He shouldn’t be doing anything to help them.
2. Get all of the facts about what happened, and get them now
The defense is at a great disadvantage early in a case like this because they do not have access to all of the State’s evidence. However, there was a lot of evidence presented by the prosecution at the hearing last week. The defense team needs to get a transcript of that hearing and go through it very carefully.
The defense needs to find all potentially relevant witnesses and talk to them about what they know. And they need to do this immediately. Ideally, the defense will hire an experienced investigator to interview all potentially relevant witnesses and take their statements so they can be used at trial.
Witnesses do not have to talk to the defense, but many of them will do so out of a sense of fairness. Of course, Harris’ defense team needs to be careful to not in any way attempt to influence the witnesses’ statements or keep them from discussing the case with law enforcement.
Potentially relevant witnesses will include not just the people who were present that day, but anyone who knows anything about the circumstances of Cooper’s death or the financial and other personal issues going on with the family during this time.
Most defense lawyers would also consider obtaining a computer forensics expert so that they can decide how they will deal with the evidence of internet searches and other computer activity. While they will not have access to the actual computer forensics report at this point, they can request an opportunity to examine the same devices that were seized by law enforcement for an independent analysis. The sooner they start this analysis, the better for the defense.
Someone from the defense team also needs to go to the scene (the Home Depot parking lot and the shopping center where Cooper was pulled out of the car) and document it precisely. If the State proceeds on the theory that Harris was negligent in leaving his child in the back of the car, then what Harris saw and did that day will become incredibly important. The sooner that evidence is preserved, the sooner the defense will be able to use it to explain their theory of what happened.
Part of any criminal investigation is a frank discussion with the District Attorney about the State’s evidence. I would expect Mr. Harris’ current attorney has already done that, given his good relationship with that office.
While the District Attorney is under no obligation to tell them anything about their case at this point, I expect that this District Attorney will be upfront with the defense about the evidence they have and their theory of the case. Vic Reynolds is not the type of prosecutor to play games in any case, especially one that is this serious. There is no reason for the District Attorney to “hide the ball” when all of the State’s evidence will eventually have to be presented in court.
Many times, a District Attorney will provide the defense with its strongest evidence to attempt to convince the defendant to enter a guilty plea prior to trial. While I do not expect Harris to be considering a guilty plea at this point, there is no reason why his defense lawyers could not at least engage in those discussions to learn more about the State’s case.
Of course, there needs to be an honest sit-down discussion with Harris about the State’s allegations. To the extent there are any explanations for his prior statements and his computer activity leading up to Cooper’s death, his lawyer needs to know about them.
3. Someone needs to speak up for Harris and put forth a credible defense theory
While I strongly believe that Harris himself should not say anything at this point, I just as strongly believe that someone needs to speak up on his behalf.
I completely understand the strategy from Harris’ defense lawyer not to make comments about the case to the media. Many lawyers believe that it is always a bad idea to talk to the media about a pending case. The rules of this court and the State Bar of Georgia certainly support a lawyer’s decision to remain quiet. Personally, however, I do not think that “no comment” is the best comment in a case like this.
Initially, Harris had many supporters who defended him. Even people who did not know Harris signed an online petition to try to convince the District Attorney not to charge him for Cooper’s death. Most of that support vanished after the probable cause hearing. While Harris and his family appear to have the support of their family, close friends and fellow church members, public support for Harris is virtually non-existent at this time.
While public opinion does not determine whether Harris is guilty or not guilty of these charges, it can influence the way the case will be charged and tried in court. While I believe the District Attorney will eventually make his charging decisions based on the evidence, it will be very difficult to ignore public opinion, especially the opinion of the people in Cobb County who elected him. If there is a strong public outcry that Harris get the death penalty, then I believe the District Attorney will have to consider that opinion in making his decision.
I already think it will be difficult to find an unbiased jury in this case, but the absence of any publicly-stated defense to these charges will make it even more difficult to find someone who has remained impartial.
Another reason the defense should be making some sort of statement on Harris’ behalf is that the courtroom is not the only place where Harris is being tried. If the defense expects to have solid character witnesses to use at trial, then those character witnesses need to feel secure about testifying on Harris’ behalf.
People who would like to support Harris will find it difficult to justify the type of conduct that is being discussed in the media. If the character witnesses believe that everyone has already convicted Harris, and that his defense lawyer has no detailed response to the charges, then they may have second thoughts about testifying on his behalf at trial. This is certainly true if this trial is televised or otherwise covered extensively by the media. No one wants to be personally associated with a monster that killed his child, especially if that person has not put forth any sort of explanation as to how this tragedy could have occurred.
4. Consider a mental evaluation
I’m sure a lot of people are thinking that there must be something mentally wrong with a person who could kill his child. While that is obviously true, having “something wrong with them” does not present a legal defense.
There are two types of mental conditions that are usually relevant in a criminal trial. The first is whether the person is competent to stand trial. That type of mental illness means that the person either is clearly mentally challenged or has a very low-level IQ. That does not appear to be the case here.
The second is whether the person was legally insane at the time of the act. Proving legal insanity is very difficult to do. At this point, I’m not aware of anything about Mr. Harris that suggests he was insane at the time he left his son in the car.
This case presents another mental issue to consider. If Harris has some mental condition that causes him to be especially forgetful then that condition needs to be explored and explained as soon as possible. Such a condition could be a factor in determining whether Harris’ conduct was intentional or even criminally negligent under Georgia law. This is the type of defense that cannot wait until trial to be developed. The defense should retain a psychiatrist to visit the jail and conduct an evaluation with Harris.
I’ve had clients undergo these evaluations several times. The defense does not have to produce the results of such an evaluation to the State unless the defense intends to present that evidence at trial. I see no reason to wait on such an evaluation considering the potential use of the death penalty in this case and the fact that the grand jury will likely have to indict it within a couple of months.
5. Be ready to file a legal challenge to any murder charge based solely on negligence
There are facts about this case that make the application of Georgia law somewhat unique. Researching these issues now may allow Harris’ defense team to raise a strong legal challenge to his prosecution for murder.
Under Georgia law, a person can be charged with felony murder when that person commits a felony that ultimately results in another person’s death. The State does not have to prove that the defendant intended to kill the person. Instead, the State need only prove that the defendant committed the underlying felony which ultimately led to the other person’s death. The felony murder statute is very broad under Georgia law and has been upheld many times.
What makes this case unique is that, at least at this point, the State is pursuing felony murder charges based upon a felony that requires only criminal negligence. While there is nothing in the felony murder statute that precludes this theory, it is not something that is usually done.
I recently had a case where our firm was representing a mother who left her children at home while she and her boyfriend went to get something to eat. Unfortunately, while they were absent, a space heater started a fire in the apartment and the children died.
The case was tragic, but the State did not pursue felony murder charges against the mother. We filed a motion immediately after the first indictment which had charged her with felony murder based on criminal negligence. Our argument was that a person should not be charged with a crime as serious as murder when the State cannot prove that that person intended to commit a crime. In our view, being criminally negligent does not warrant a murder charge.
It appears that the Georgia Supreme Court has not directly addressed this issue in child cruelty cases. I believe a well-researched argument to the District Attorney at this point could convince him not to pursue felony murder charges based solely on criminal negligence. Of course, if the State pursues first degree child cruelty charges then this argument will not work.
Harris’ defense lawyer has many years of experience in both prosecuting and defending murder cases in Cobb County. I am certain that he is doing what he believes is in his client’s best interest. He may be considering the very same things that I am suggesting, and my suggestions are not meant to criticize his representation in any way. Regardless of the strategy the defense team chooses, they need to start using it now.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.