How five jurors and one judge altered the course of the Justin Ross Harris trial

For three grueling weeks, Staley had presided over jury selection in the Ross Harris case, the highest-profile trial in her more than 30 years on the bench. She had directly questioned 85 prospective jurors one at a time. Testimony hadn’t even begun, and already the proceedings had cost the county up to $25,000.

Now she was pulling the plug. She had to.

In her chambers a few days before, Staley met with the lawyers for both sides. A record of that session is unavailable, but Staley disclosed the meeting from the bench later. She said the parties discussed some scheduling issues. And then they turned to what surely was concerning the judge: Cobb County didn’t like Ross Harris, accused of intentionally leaving his 22-month-old son in his SUV to die, and that hostility ran deep in the jury pool.

“I believe one juror said ‘rot in hell,’ ” Staley said from the bench last Monday, apologizing for saying the word “hell.” “I think another used the word pervert… . One juror even opined the defendant deserves the death penalty in this case.”

With that, Staley granted a last-minute defense motion for a change of venue, sending the trial right off the rails. Opening statements had been just a couple of days away. Now Staley had decided to start all over again in a different city in a different season. The new venue could be hundreds of miles from Marietta; the new trial probably won’t begin until September; and the move will cost taxpayers at least $100,000, said court administrator Tom Charron.

The Atlanta Journal-Constitution has analyzed patterns that developed in jury selection – arguments by the defense and prosecution, statements made by prospective jurors, decisions by Staley.

Ultimately her ruling to grant the change of venue turned on decisions she made early on, rulings she seemed to want to take back by the end of the process.

Judges do not comment publicly to the press about trials, and Staley declined to comment about this one.

‘She tried everything she could to be fair’

The selection process began with 239 prospective jurors.

Through “voir dire” (questioning the jury pool), the court decides which ones “qualify” for service and which ones should be removed for “cause,” such as bias or too much prior knowledge of the case.

Staley had given wide latitude to the lawyers in their questioning.Each potential juror was interviewed individually, which is rare, and the questions covered everything from their personal relationships to which TV shows they watched.

“I don’t know if I’ve ever heard of a case that allowed for that long of voir dire,” said Atlanta criminal defense attorney Bill Morrison. “It looks like she tried everything she could to be fair.”

Once Staley qualified at least 42 prospective jurors, the lawyers would then whittle that total down to the final 12, plus four alternates.

By last weekend, Staley had qualified 41.

Jury selection: the whole ballgame?

Jury selection is so important that some experts believe a case has been decided by the time the jury is seated, before any evidence or testimony are ever heard. And the conduct of the lawyers in the Harris case underscore this. When Juror 22 — they are all assigned numbers — said he liked to view pornography on the Internet, red flags went up for the prosecutors. Ross Harris used the Internet extensively to look for sexual partners: would Juror 22 be sympathetic to him?

So the prosecution set about discrediting Juror 22. They were so thorough that they investigated his statement that he attended school on a baseball scholarship. Prosecutors called as a witness the athletic director for the school in question. He testified that Juror 22 couldn’t have had a baseball scholarship, because the school doesn’t have a baseball team.

Juror 22 was excused.

Initially, the prosecution was more successful in persuading Staley to rule their way on qualifying jurors. Six of the first 22 were qualified over the defense’s objections. Later, the prosecution agreed to strike one of the six for cause, but Staley’s decision to qualify the remaining five would alter the course of the trial.

Staley acknowledged as much in that Thursday meeting in her chambers. The five were a problem, and it would be up to the state and the defense to fix it, she said.

“I suggested that you look at some of these early challenges for cause that I denied and perhaps you all coming to some agreements,” the judge said on Monday.

‘I’m going into this with a bias’

These five jurors were qualified by Staley, who seems to have had a change of heart about them later:

The defense asserted that all five were too biased against Harris to qualify for the jury. Staley qualified all of them. By the end of the process, however, she was asking the prosecution and the defense to figure out what to do with them. The risk was enormous: if Staley’s rulings on the five were later reversed on appeal, the whole trial could be nullified.

‘They don’t even have air-conditioning’

The onus was now on the state to see whether it could reach a consensus with the defense on the five jurors. Staley impressed on them the hardship and cost a change of venue would bring.

“We are talking about the likelihood we end up in possibly a rural community with very limited amenities away from our support system,” Staley said. “There are courthouses in Georgia that have no security. They don’t even have air-conditioning. Not many but I know at least one exists.”

The negotiation came down to something called peremptory jury strikes.

After the court qualifies enough jurors — in this case, 42 — the defense and prosecution go to work selecting the final 12 and alternates. Each side has nine peremptory strikes, which enable them to dismiss a juror for any reason other than race or gender. These strikes represent the last chance to seat jurors they want or exclude jurors they don’t want, and lawyers guard them closely.

Staley’s rulings on the five meant the defense would have to use five of its peremptory strikes to get rid of jurors who, Harris’ attorneys believed, shouldn’t have been there anyway. The defense wanted the prosecution to agree to disqualify all five and save those five peremptories.

Prosecutors held firm, agreeing to strike only two.

“The price of keeping this trial in Cobb would be the state conceding to every objection the defense made,” said Dunwoody attorney Esther Panitch, who is not connected to the case but has watched it closely.

For the defense, it was an easy call. If Staley’s words weren’t clear enough, her actions also spoke to her realization that a course correction was needed.

‘Pervasive knowledge and extreme opinions’

As jury selection wore on, Staley increasingly consented to defense challenges, even to jurors who seemed barely problematic, especially when compared to some of the earlier qualifiers.

Juror 51, a retired preschool teacher and grandmother, said she had initially believed that Harris was guilty but, after taking a second look at the case, became “more objective.” “I don’t know what happened,” she said. It’s unknown why the defense wanted her struck for cause. But it was telling, considering her rulings on previous jurors, that Staley yielded.

From the beginning Staley was aware that a change of venue may be necessary. Charron, the court administrator, said the possibility was discussed even before jury selection began. And many of the questionnaires that 239 prospective jurors filled out on the first day displayed an open hostility toward Harris.

“To say that the juror questionnaires show a pervasive knowledge and extreme opinions that are negative to the defendant is frankly an understatement,” she said in granting the change of venue.

Only the defense can request a change of venue, and Harris’ attorneys say they didn’t want one. Rather, they were “hoping beyond hope there might be a way that we would be able to get a fair and impartial jury here in Cobb County,” Bryan Lumpkin, a defense team member, said Monday.

By the time the judge qualified Juror 40, the mom who said she didn’t know whether she could be impartial, the defense knew it wasn’t likely. It wasn’t long before Staley shared their doubts.

Will the next jury be impartial?

Charron said the court hopes to have a new venue selected within two weeks. While much remains unsettled, it’s a safe bet the trial will occur this year, as Staley wants, Charron said. It won’t start before Labor Day but can’t start much later if it is to conclude before the holidays, he said.

Less certain is the location, though Charron said it will be outside the Atlanta media market in a place that can handle the influx of media, court personnel, attorneys and a large number of witnesses.

The leading contender is believed to be Brunswick in Glynn County, which, nine years ago agreed to provide facilities and jurors for a Cobb County death penalty trial. In 2013, Cobb returned the favor, playing host to the trial of a Brunswick teenager accused of fatally shooting a toddler.

Charron, expecting a smaller jury pool, said the selection process shouldn’t take as long.

Given the global media coverage of the case, however, there’s no guarantee the next jury, wherever it is, will be any more impartial than the first.