“His routine, pretty much every day, he would get up with Cooper, have breakfast with Cooper, then prepare him for the day” and take him to daycare, Diamond said.
On this day, Harris had to be at work early for a meeting. He hurried out of the house, skipping his morning shave. He planned to drop Cooper off, hit the drive-through at Chick-fil-A and report to work, Diamond said.
While on the road Harris received a message the meeting had been delayed, Diamond said. So he decided to have breakfast with Cooper inside the restaurant, another break from routine.
“That is an essential factor,” said Diamond, referring to other cases he’s studied where kids were left behind in locked cars. “What’s essential is for the hippocampus to be reactivated to remind the parent the child is in the car.
But that didn’t happen, he said. There were no reminders, nothing on the front seat that he would’ve seen, nor any sounds from Cooper, who was strapped in a rear-facing car seat.
Kilgore testified he was concerned Diamond’s notes would be taken out of context to “put words in Ross Harris’s mouth.”
“We would have called Dr. Diamond to testify in this case if we hadn’t had to turn those notes over,” he said. Diamond would’ve discussed how the Harris case was consistent with others where the child’s death was precipitated by memory failure, Kilgore said.
The Marietta attorney also testified about his frustration with the judge preventing the defense from challenging misleading allegations leveled by Cobb County police investigators at Harris’ probable cause hearing.
“There was no question at all, ever, in our minds, that we would not be allowed to question a law enforcement officer who had given false testimony under oath in this very case,” Kilgore said.
He said the defense was hamstrung from the beginning by a “mountain and cavalcade of bad character evidence” against Harris revealing his sexual infidelities that was irrelevant to the question of whether he intentionally killed his son.
Judge Staley Clark has reserved three days for the hearing. She’s unlikely to grant the new trial ― judges rarely do, said Marietta attorney Ashleigh Merchant.
“This is an opportunity for the lawyers to put up evidence,” she said. “Whatever happens, it’s going to be appealed.”