For three relentless hours, Ross Harris served as a prosecutor’s punching bag, his reputation leveled by one broadside after another.
By the time last week’s probable cause hearing was over, he had become one of the nation’s most infamous defendants — accused of intentionally leaving his toddler son in a sweltering SUV long enough to die.
But, while the public may have made up its mind about the baby-faced IT specialist, charged with felony murder and second-degree cruelty to children, legal experts say the case against him, while solid, is no slam dunk, especially if the charges are upgraded to indicate malice.
“Look at Casey Anthony,” said jury consultant Jeri Cagle, referring to the Florida mother found not guilty of killing her 3-year-old daughter despite what prosecutors thought was overwhelming evidence.
Harris, 33, contends he mistakenly left his 22-month-old son Cooper locked in his car seat for seven hours as temperatures inside the 2011 Hyundai Tuscon soared above 130 degrees.
The case has generated headlines worldwide, and with good reason. According to those who track the number of children who have died when left in hot cars, this is the first time a parent or guardian has ever been accused of doing so on purpose.
“This is unprecedented,” said Janette Fennell, president and founder of the advocacy group KidsAndCars.org. “I’ve examined over 700 cases in my career, and I’ve never heard of this before.”
Cobb Assistant District Attorney Chuck Boring said at last week’s hearing that evidence presented “has shown this was intentional.” However, the charges don’t yet reflect that.
Veteran criminal defense attorney Steve Sadow said the defense should push the prosecution to make up its mind on the issue of malice.
“I would want them to take a stand,” Sadow said. “And, if they didn’t, I’d exploit that. If they can’t make up their mind, that indicates they can’t prove it.”
Upping the charges raises the bar on the prosecution. “I’d be hoping for that if I was the representing him,” Sadow said. Charging Harris with intent to kill would make the defense’s job a little easier, he said.
By doing so, the prosecution would, in essence, identify Harris as “a monster” without peer, said former DeKalb County District Attorney J. Tom Morgan.
“I don’t see any middle ground — he intentionally murdered a child or it’s a horrible tragedy,” said Morgan, now a defense lawyer. “If they show premeditation, that he intentionally killed that child, then (Cobb District Attorney) Vic Reynolds can do nothing less than seek the death penalty.”
And that would present another challenge for the state. Could they prove that Harris — who, according to friends and family, was a doting dad — is a cold-hearted killer willing to let his son suffer one of the worst deaths imaginable?
“You’d almost have to show he was mentally ill, completely devoid of empathy,” said Decatur defense lawyer Bob Rubin. “Proving this was a purposeful act is full of hurdles, unless there’s a smoking gun out there.”
So far, the prosecution’s case is almost completely circumstantial, although that’s not unusual, said Gwinnett defense attorney Christine Koehler.
“If you push, push and push and then some of this stuff isn’t proven, that can really end up making the prosecution look bad,” she said, adding that, if Harris goes to trial, a change of venue is almost inevitable.
Ironically, the prosecution’s testimony about Harris’ sexting habits — alleging he was engaged in up to six different illicit chats with women he met online on the day of his son’s death — may end up helping the defense.
“They could argue that the sexting, something he was apparently very heavily involved in, was a distraction,” Rubin said. “Clearly, he wasn’t thinking about his son that day because he was so obsessed with women.”
Ultimately, the most important part of the trial may well be picking a jury. Finding open-minded jurors won’t be easy, said Cagle, who’s been advising lawyers through the process for 20 years.
In this case, the defense will be looking for a mix of skeptics who tend to distrust the herd mentality and optimists who simply can’t fathom someone subjecting their child to such a horrific death, Cagle said.
Of course, the prosecution is still building its case; Cobb Police Detective Phil Stoddard said investigators have just “scratched the surface.”
Sadow said he believes the defense faces an uphill battle.
Forgetting your child is in his car seat less than five minutes after putting him there will be a tough sell, he said. And Harris’ admission that, five days before his son’s death, he watched an online video about what happens to a child when left inside a hot car may prove too coincidental for jurors to accept.
“All the circumstances in this case, considered in their totality, don’t leave much room for maneuvering,” Sadow said.
About the Author
