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Atlanta Journal-Constitution reporters have been following the investigation into the death of 22-year-old Cooper Harris since police arrested his father in June. Read more of our comprehensive coverage and view video and photos at myAJC.com.
Lawyers for the Marietta father accused of intentionally leaving his son inside a hot car to die have asked the court to separate or bar much of the evidence prosecutors have outlined as central to the case against Ross Harris.
In a series of motions filed Tuesday, the defense argued that charges stemming from Harris’ alleged sexting with a girl younger than 18 are unrelated to the murder counts he faces and should be tried separately. The defense also sought to have evidence obtained from Harris’ computers and cell phones, as well as statements made by him and his wife, Leanna, ruled inadmissible on grounds that they were obtained in violation of constitutional protections.
Harris pleaded not guilty last month to the eight felony charges, including malice murder. His 22-month-old son, Cooper, died in June after spending seven hours in a sweltering SUV in the parking lot of the Home Depot office where his father worked.
Legal observers say the defense faces long odds in winning most, if not all, of their legal challenges to the prosecution’s evidence. But several said the process could still benefit the the defense by allowing Harris’ lawyers to probe the prosecution’s evidence in court before the trial.
“In Georgia, the defense has no right to conduct pre-trial depositions,” said Marietta defense attorney Philip Holloway, a former Cobb County prosecutor. “The motions process is viewed as the next best thing.”
If nothing else, Harris lawyer Maddox Kilgore will have the chance to get investigators — whose testimony at the defendant’s probable cause hearing has already come into question — back on the stand. Kilgore declined to comment on the motions Wednesday.
“If the defense believes the cops are lying, or stretching the truth, the more opportunities they have to cross-examine, the better,” said Dunwoody defense lawyer Esther Panitch.
An investigation by The Atlanta Journal-Constitution suggested that police overstated some of their evidence during the only hearing in the case to date. And assertions made by Cobb Police Det. Phil Stoddard on the witness stand were not entirely consistent with video from a surveillance camera at the Home Depot office complex where Harris worked.
The motions hearing was supposed to occur Monday but will be postponed. That’s because Kilgore has yet to receive evidence the prosecution is obligated to share in the legal process called discovery. When he does, another slew of motions could follow.
Getting the murder indictment tossed is considered the longest of shots, but some of the motions filed Tuesday could make for intriguing courtroom arguments.
The sexting charges, Kilgore argues, were added to the indictment “for the improper purpose of interjecting evidence of bad character against Defendant.”
The prosecution is likely to counter that the sexting serves as a basis for the criminal negligence charge against Harris, Holloway said.
Eliminating those counts wouldn’t necessarily prevent the sexting allegations from being introduced during trial.
“If the defense is going to try to introduce character evidence that, for instance, he’s a law-abiding citizen, a churchgoer, what have you, the prosecution will be able, during cross-examination, to introduce less favorable aspects of his character,” said Atlanta criminal defense attorney Steve Sadow.
Another challenge worth watching: the motion to exclude Ross Harris’ recorded conversation with his wife at the police station on the night of Cooper’s death, in which she allegedly asked him, “Did you say too much?” Kilgore argues that discussion is protected by Georgia’s marital confidence privilege and says police “created the atmosphere and impression of privacy” by leaving the couple alone in a room.
But recent changes to Georgia’s evidence code allow for exceptions to the spousal communication protection, including one that figures prominently in the prosecution’s case, Holloway said.
“I would expect the prosecution to argue that those conversations are admissible because this case is about allegations of child abuse,” he said.
A make-up date for the motions hearing has yet to be set. With the defense still awaiting discovery evidence, it could be delayed until the first of the year, Holloway said.
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