Charges against Ross Harris paint conflicting scenarios

Count 3: Felony murder, with the underlying felony being Cruelty to Children in the Second Degree — with criminal negligence he caused Cooper cruel and excessive pain by leaving him alone in a hot motor vehicle.

Count 4: Cruelty to Children in the First Degree.

Count 5: Cruelty to Children in the Second Degree.

Count 6: Criminal Attempt to Commit a Felony: Sexual Exploitation of Children — between March 1 and June 18 he asked a girl under the age of 18 to send him a photo of herself nude.

Count 7: Dissemination of Harmful Material to Minors — between March 1 and June 11 he sent sexually explicit messages to the same young girl.

Count 8: Dissemination of Harmful Material to Minors — between March 6 and June 15 he sent a photo of a male’s genitals to the same young girl.

Justin Ross Harris killed his son with cold-blooded intent or with extreme recklessness, according to the indictment handed down last week by Cobb County grand jurors.

Among its eight counts are three murder charges that rest on two very different theories of what transpired June 18. One theory is that Harris deliberately and maliciously left his 22-month-old son in his car on a hot summer day. The other contends he was criminally negligent but not malicious when he left the toddler alone in his office parking lot.

Georgia law allows for conflicting theories to be in the same indictment, and prosecutors often employ such tactics, giving jurors a range of options on which to convict. The risk is that jurors will conclude that prosecutors don’t have a firm grasp of what happened.

“You have to decide to give a jury different options or to go for broke” on a single theory, said Gwinnett County District Attorney Danny Porter. “It’s not unusual to have different theories of your case in an indictment.”

At some point during the trial, however, prosecutors will have to choose which path to take, Porter said. “That’s when it really becomes interesting.”

Atlanta criminal defense attorney Jeff Brickman said he used the multi-option strategy when he served as a state and federal prosecutor. But it can be a double-edged sword, he said.

“It takes into consideration that a jury might not buy your theory of one count in the case but might buy your theory on another count,” Brickman said. “The downside is the jury may think that the state doesn’t even know what its theory of the case is.”

Harris’ lawyer, H. Maddox Kilgore, tried to drive home just that point after the grand jury indicted his client.

“In the last couple of months, we’ve had two warrants, a lengthy probable cause hearing and now an indictment that includes three counts of murder,” Kilgore said. “But we still don’t know what the state’s theory is.”

“The truth is Cooper’s death was a horrible, gut-wrenching accident,” he said. “It was always an accident. And when the time comes and we work through the state’s maze of theories at trial, it’s still going to be a terrible, gut-wrenching accident, and all the eccentricities, moral failures of Ross’ life aren’t going to change that fact.”

Cobb District Attorney Vic Reynolds declined to comment for this story.

On the day of the indictment, Reynolds said he will soon decide whether to seek the death penalty against Harris. Cobb prosecutors could also put Harris on notice that they will seek a sentence of life in prison without parole should he be convicted of any of the murder counts.

Cooper died June 18 in a Home Depot office parking lot. That morning, Harris was supposed to take the boy to day care on his way to work. But after stopping for breakfast at a Chick-fil-A, Harris strapped Cooper into his car seat and drove instead to his office, leaving the child inside the family’s Hyundai Tucson. Temperatures inside the SUV rose to more than 100 degrees during the day, police say.

In addition to one count of malice murder, Harris is also indicted on two counts of felony murder. That charge applies when a person causes a death, perhaps unintentionally, during the commission of another felony – in this case child cruelty.

Harris faces two counts of child cruelty, which, like the murder counts, are somewhat at odds with one another.

One is cruelty to children in the first degree, which says he maliciously exposed Cooper to cruel and excessive pain by leaving him in the hot car. The other is second-degree cruelty to children, which requires prosecutors to prove Harris acted with “criminal negligence.”

Under Georgia law, Harris can be found criminally negligent if prosecutors convince a jury that he knew Cooper would be in peril if left in the hot car, and if Harris consciously disregarded that risk in a way no reasonable parent would.

Porter, the Gwinnett district attorney, described it this way: “It’s a negligence that rises to the level of an abandoned and malignant heart.”

But the second-degree count is basically nonsensical, said Atlanta criminal defense lawyer Don Samuel.

To convict Harris on this charge, Samuel said, jurors would have to conclude that Harris knew he left Cooper in the car – and how is that negligence, rather than malice?

“If he didn’t know the child was in the car, he’s not criminally negligent because he didn’t know the risk existed,” Samuel said. “That’s why I think it’s malice murder or nothing else. It can’t be in between. Either he killed him on purpose or he didn’t kill him on purpose.”

It would be different if Harris had decided to leave Cooper in the car to run an errand, because Harris would have been fully aware of the risk, said Samuel, who has authored five books on criminal law. But that wouldn’t be the case if he had a mental lapse and believed he had taken Cooper to day care.

If a Cobb jury ultimately convicts Harris of one murder charge that requires a showing of intent and another that rests on a finding of negligence, it would likely cause a mistrial because the counts are so inconsistent with one another, Samuel said.

The remaining three counts against Harris have to do with the element that shocked and outraged people across the country when Cobb police revealed it during a July 3 hearing.

While Cooper was dying, they said, Harris sent sexually explicit texts, including images of his genitals, to as many as six women. The indictment says he illegally sent sexually explicit messages and photos to a girl under the age of 18. From March 1 until the day of Cooper’s death, Harris asked the girl to send him nude photos of herself, the indictment alleges.

Prosecutors may try to show that Harris was too consumed by this activity at a time when he should have been thinking of his child, Marietta criminal defense lawyer Ashleigh Merchant said.

“It’d be better (for the defense) if he’d been messaging his pastor or his child’s doctor to schedule the next visit,” she said. “The prosecution could crucify him for this. They could say, ‘While your kid was broiling, you’re in there sexting.’”

For this reason, Merchant said, Harris’ lawyers should try to remove the sexting charges from the indictment and ask that Harris be tried separately on those counts. His lawyers could argue these acts had nothing to do with Cooper’s death and, if presented to a jury, the allegations are so inflammatory and prejudicial there is no way Harris can get a fair trial on the murder charges, she said.

Atlanta defense attorney Bruce Morris said prosecutors will likely contend Harris’ sexually explicit texts are relevant in showing his state of mind. “But unless they’re linked to what he was doing on June 18 when he should have been paying attention to his child, then they’re unrelated to the incident and are being thrown in there to make him look bad and destroy his character,” he said.

Harris' close friends have told the AJC he was a devoted father who was smitten with Cooper and that Ross still loves his wife, Leanna. Harris' brother, Michael Baygents, has said he and his brother were planning a family cruise and settled on Carnival Cruise Lines after going online and finding a Carnival ship with water slides for their children.

But during the July hearing, Cobb Police Det. Phil Stoddard described several factors that led prosecutors to believe Harris’ acts were criminal, not accidental. Harris had looked at material online about the dangers of hot cars, he had visited a website where people talk about living child free, and both he and Leanna said things that struck police as suspicious in the hours after their son’s death, Stoddard said.

The very fact that prosecutors are considering the death penalty probably signals that they have found more incriminating evidence against Harris than was presented at the hearing, Atlanta defense attorney Page Pate said.

“They must have found something else during their forensic review,” Pate said. “To even talk about the death penalty, they must have something we don’t know about.”