Clock ticking in Ross Harris murder case

Police and prosecutors building the case against Ross Harris face a ticking clock: Four weeks from today, if the grand jury has not indicted him, bond will be set for the Cobb County father accused of murdering his young son.

At this point, Cobb police have not completed their investigation of Harris, the AJC has learned. The big question, when the case moves into the hands of District Attorney Vic Reynolds and county grand jurors, will be whether police have amassed the evidence required to indict Harris on a charge of murder with malice.

The charges on which he was arrested and remains jailed – second degree child cruelty and felony murder – require a jury to find only that he acted with criminal negligence rather than with intent to harm. But police have said publicly that they believe Cooper Harris’ death was intentional, which may make it hard to try Ross Harris for anything less than malice murder, according to several trial specialists.

“It puts the D.A. in a horrible box,” said defense attorney J. Tom Morgan, a former DeKalb County District Attorney. “I don’t see any middle ground here. This is either a horrible crime worthy of the death penalty or a tragic accident.”

Cobb police and the district attorney’s office declined to discuss the investigation. They previously said it could be lengthy, particularly the work of scouring the contents of computers and other electronic devices belonging to Ross Harris.

One thing they have not done to date is subject Harris’ wife, Leanna, to repeated questioning.

Lawrence Zimmerman, the attorney for Leanna Harris, said his client has not been contacted by police since the week of her son’s death.

“There’s been no dialogue,” he said. “We don’t know what’s going on.”

Cooper Harris died June 18 after his father left him strapped inside a car for seven hours in the parking lot of the Home Depot office where Ross Harris worked. Harris later told police the death was accidental, that he forgot the toddler was in the car.

At Harris' July 3 probable cause hearing, prosecutors staked out a position somewhere between negligence and malice, a luxury that won't be available to them at trial.

At the end of that hearing, most legal observers viewed an acquittal as a long shot, at best. On the stand, Cobb detective Phil Stoddard reeled off a host of seemingly damning evidence: that Harris had sexted with several women while his son died, that he had searched the internet for information about death in hot cars, that both he and Leanna said things that struck police as suspicious in the hours after their son’s death.

But much has changed in the intervening seven weeks. Apparent exaggerations or even inaccuracies in Stoddard's testimony, many of them brought to light by the AJC, could make the prosecution's job that much tougher at trial, legal experts said.

For instance, Stoddard, the lead investigator in the case, testified that Harris sat in his Hyundai Tuscon for 30 seconds when he arrived at his office the day of his son’s death. In his closing statement, prosecutor Chuck Boring highlighted that time frame, implying that Harris knew he was leaving 22-month-old Cooper behind to die.

“That morning, he waits 30 seconds in that car … 30 seconds with that child right beside him,” Boring said.

But the AJC’s review of surveillance footage of the Home Depot parking lot showed that Harris exited the car in less than 15 seconds, during which he put the SUV in park, turned off the engine and collected his phone and computer bag.

Stoddard’s testimony that Harris had a “clear view” of his son when he returned to the vehicle on his lunch break was also contradicted by the tape, as was an insinuation that the suspect warily eyed a passerby who approached the vehicle, afraid the person might spot Cooper.

Similarly, a close reading of the hearing transcript suggests that the supposedly ominous items Harris viewed on the Internet were public service promotions designed to highlight the dangers of leaving children or pets in hot cars. Stuff, the defense might argue, that a conscientious parent or pet owner might watch.

So those elements of Stoddard’s testimony, which seemed so damning at the time, may even end up working to the benefit of Harris’ defense.

“The credibility of witnesses is going to be an issue in every case,” said former Cobb prosecutor Philip Holloway, now a criminal defense attorney. “That prior testimony can be used to impeach a witness.”

The D.A.’s office has its own investigators, who will supplement the work done by police detectives. Nevertheless, the manner in which police conduct their investigation can have a significant impact on how the case plays out in the courtroom.

Defense attorney Esther Panitch, who represented the wife of the man convicted in the sensational Dunwoody day care murder case, said investigators were entirely too trusting of the victim’s wife, Andrea Sneiderman.

The DeKalb D.A. later charged Sneiderman with complicity in her husband’s death, but dropped the murder charge against her immediately before trial.

“That was the opposite of this case, if you believe the police were overzealous in trying to prove (Harris) intended to kill his son,” said Panitch. “(Dunwoody) police never looked at (Sneiderman) as a potential suspect.”

Harris, in contrast, was charged with felony murder the day of his son’s death. (The law defines felony murder as a death that happens, perhaps unintentionally, during the commission of another felony.)

“Why did they make an arrest so fast?” said Morgan, posing a hypothetical defense of Harris. “You could argue police made up their minds right away – that this was a rush to judgment.”

Defense attorney Steve Sadow said he expects Harris’ defense team to argue just that. He said he would push prosecutors to defend those previous allegations of malicious intent, especially in light of the decision to reduce the child cruelty charge a couple of weeks after the death from first to second degree. (First degree requires prosecutors to prove malice; second degree requires only criminal negligence.)

“That’s a huge thing,” Sadow said. “Malicious intent is included in a first-degree child cruelty charge. Clearly this was presented by prosecutors as something that was planned. So why the change?”

Based on those inconsistencies, Sadow said, it would be easier to defend Harris on malice than criminal negligence, the basis of the current charges.

“It’s very difficult to explain to jurors what criminal negligence means,” he said. “It’s simply a fallback position to get a conviction.”

“If they can’t prove first-degree child cruelty, they don’t have a case,” Sadow said.

It is possible, of course, that police have found new evidence against Harris that prosecutors can argue reveals malicious intent. In any case, the first test of the strength of the case will be when Reynolds’ staff takes it before the grand jury.

However, indicting a suspect on a particular charge does not require that evidence meet the “proof-beyond-a-reasonable-doubt” standard required to get a conviction at trial.