Portion of an Affidavit & Application for a Search Warrant filed by Cobb County police June 18 during the investigation of the death of Cooper Harris.

Atlanta news: is toddler’s death a case of murder?

One mystery in the case of Justin Ross Harris was at least partially solved on Saturday: why police charged him with the murder of his son just hours after they found Harris wailing over the toddler’s lifeless body in a suburban parking lot.

The news that Harris had researched how children die in hot cars, and that he told police as much that night, “obviously changes the entire thing,” said Atlanta criminal defense attorney Steve Sadow.

“It’s very damaging,” agreed Ashleigh Merchant, a Marietta criminal lawyer. But she and other veterans of the justice system stressed that the full picture of what happened to 22-month old Cooper Harris remains sketchy at best. If there’s one thing the new disclosure proves, they said, it’s that conclusions based on incomplete evidence are easily upended.

Saturday’s revelation emerged with the release of an application for a search warrant filed by Cobb police on the evening of June 18, the same day Cooper died. “During an interview with Justin,” the application says, “he stated that he recently researched, through the internet, child deaths inside vehicles and what temperature it needs to be for that to occur. Justin stated that he was fearful that this could happen.”

However suspect his explanation may appear in light of Cooper’s death, it’s not implausible, several experts said.

“Parents of young children are constantly thinking, ‘Can I run in and get some milk? Can I run in and get the dry cleaning?’” Merchant said.

In the face of that temptation, many probably turn to the Internet to help them gauge the risks involved, said forensic psychiatrist Peter Ash, an associate professor at Emory University.

“You can come up with scenarios in which he was actually doing it to protect the child,” said Ash, who directs Emory’s Psychiatry and Law Service.

Much will hinge on exactly what Harris searched for and how recently he did it, Ash and others said.

“If it was 24 or 48 hours (earlier), it will be hard to call it a coincidence,” Sadow said.

Also crucial, defense lawyers said, is precisely what Harris said and the context in which he said it. Did he volunteer the information unprompted, or did police ask him? Did they ask repeatedly?

“Your client is distraught, he wants to please the police,” Merchant said, outlining how a defense lawyer might try to undercut the revelation’s impact on jurors’ minds.

Harris’ personality and family relationships will also come into play, Ash said. “Is he a distractable kind of guy?”

From a psychiatric point of view, he said, it’s plausible that a father would be ambivalent toward his son, “with strong feelings in both directions,” and that he might act out his negative impulses without doing it consciously.

“I think it’s much more common than we realize for parents to have fantasies about things that would result in their children’s deaths,” he said.

When death occurs in commission of a felony

The swiftness with which Cobb police arrested Harris and charged him with murder and child cruelty brought a furious backlash from thousands of people who decried a rush to judgment.

Cobb officials, seemingly caught off guard by the ferocity of the reaction, pleaded for time and space in which to do their work. But their own actions were a virtual how-to for creating a media feeding frenzy: arrest a white, suburban and, to outward appearances, doting father; charge him hours later with a crime for which he could be put to death; provide facts slowly and grudgingly while also dropping dark hints and dispensing sensational allegations anonymously.

“There’s an undertone here that police almost think he did it intentionally,” said Decatur criminal defense attorney Keith Adams, speaking Thursday, before the warrant application was made public.

At present, though, the charges against Harris do not require any finding of intent.

The most serious charge, often referred to as felony murder, actually runs counter to the popular conception of murder as a deliberate, if not always premeditated, act.

Under Georgia law, if a person commits virtually any felony and someone dies during the commission of that crime, the perpetrator can be charged with felony murder. As with other kinds of murder, felony murder is punishable by death or by life in prison, with or without the possibility of parole. To get a death sentence, prosecutors must prove one or more “aggravating circumstances” prescribed in the law.

In this case, the underlying felony with which police have charged Harris is cruelty to a child. At first, on the night of his arrest, they charged him with first-degree child cruelty, meaning he acted with malice in harming his son.

On Wednesday, however, the child cruelty charge was downgraded from first degree to second degree. Under the law, that lesser charge applies when someone “with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.”

Alone, second-degree child cruelty is punishable by one to 10 years in prison. But it is a felony and can serve as the basis for the murder charge, which remains in place.

‘Either a terrible tragedy or a death penalty case’

Of course, the charges on which Harris was arrested and remains jailed are not necessarily the same charges on which he may be tried. It will be up to Cobb County District Attorney Vic Reynolds to decide whether to take the case before the grand jury and, if he does, what indictments to seek.

Neither the Reynolds’ office nor Harris’ attorney, Maddox Kilgore, would comment for this article. Cobb police, in response to emailed questions, refused to discuss specific evidence but said they have acted appropriately and have a sound basis for the charges against Harris.

Courtroom veterans said it’s a safe bet that the DA will seek indictments on as many charges as he thinks he can get a grand jury to go for — including murder with malice.

“The prosecutor has a lot of time to make that decision,” said former DeKalb District Attorney J. Tom Morgan, who said that from the outset Cooper’s death struck him as “either a terrible tragedy or a death penalty case.”

It’s unusual but not unprecedented for a parent to be charged with murder in such a case, said legal scholar Jennifer Collins. In 2003, Collins published an analysis of 130 cases in which children died after an adult responsible for their care left them in a hot car.

Those cases included a Michigan woman convicted of second-degree murder for knowingly leaving her two children in the car for three hours while she got her hair done.

But few cases are that clear cut, and Collins, dean of the law school at Southern Methodist University, said they generally pose “a terribly difficult decision for prosecutors.”

Nevertheless, her research found that more than half of adults involved in such deaths were prosecuted for some offense. The vast majority were convicted, though usually through a plea bargain rather than a trial.

In a couple of ways, Collins said, the charges against Harris do run counter to the norm: Fathers implicated in children’s deaths are less likely to be prosecuted than mothers or other caregivers; and white-collar professionals such as Harris are four times less likely to be charged than those who hold blue-collar jobs or are unemployed.

Negligence: ‘you know it when you see it’

As the charges stand today, the case against Harris would turn on the concept of criminal negligence. The Georgia Code defines that as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”

In practice, it’s much like pornography, Sadow said: Although hard to describe in the abstract, “you know it when you see it.” Clearly, though, he said, “it’s more than a simple mistake or inadvertence.”

In his experience and reading of the law, Morgan said, prosecutors would have to convince a jury that Harris knew or should have known Cooper was in the car.

If the case ever comes to trial, that is. Collins’ research shows that most such cases culminate in a plea agreement.

Given the facts that have emerged thus far, Sadow said, it would be difficult for Reynolds to agree to let Harris plead to anything less than the charges that now stand. “You run for re-election every four years, and you have to justify to your community why you would not go for felony murder,” he said. “I don’t see it.”

The choice for Harris, he said, would then be to accept felony murder with a life sentence and the possibility of parole after 30 years or to go to trial and risk even worse.

Merchant, too, said a trial may be attractive to prosecutors. If there is no clear evidence that Harris meant to kill his son, he falls into a category of people over which society is deeply split, she said. And often, in such cases, “the DA wants it to be heard by a jury.”

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