"He was leading this double life, which the prosecution certainly was able to establish, but he seemed to be getting away with it. What changed?”
- Dunwoody defense attorney Esther Panitch.
BRUNSWICK -- Despite the prevailing public opinion that has already convicted Ross Harris in the death of his only child, proving he did so with malice is no slam dunk for the state.
They have no eyewitnesses. No DNA on a murder weapon. No irrefutable video. Just a mountain of circumstantial evidence. And one problematic witness.
“Ladies and gentlemen, at the end of this evidence there is going to be no doubt he’s guilty of every charge in this indictment,” Cobb County Senior Assistant District Attorney Chuck Boring said in his opening statement.
So did the prosecution, which rested its case Friday morning, meet the high threshold Boring set almost four weeks ago? Or will jurors accept the defense narrative casting Harris as a victim of circumstance and an overzealous lead investigator who rushed to judgment, ignoring evidence that might have absolved the former web developer?
“I don’t think they proved malice,” said Marietta defense lawyer Ashleigh Merchant, who has been following the case since the beginning. But it may not matter, she said.
“All of the evidence they got in will probably make the jury reluctant to give (Harris) the benefit of the doubt,” Merchant said.
And even if the six-man, six-woman jury determines that Harris did not intentionally leave his 22-month-old son locked in a hot car for nearly seven hours, he can still receive a life sentence for felony murder.
Dunwoody defense attorney Esther Panitch said that while the state laid out a thorough case for Harris’ guilt on the lesser charges, they failed to show conclusively what triggered Harris to allegedly kill Cooper on June 18, 2014.
“I’m at a loss to understand what happened to make him decide to do it that day,” Panitch said. “He was leading this double life, which the prosecution certainly was able to establish, but he seemed to be getting away with it. What changed?”
The state has implied that Harris’ breaking point came the morning of Cooper’s death after reading, on the social media app Whisper, a post by a mother who said she regretted having children.
Harris responded, “I love my son and all, but we both need escapes.”
“The defendant’s own words showed he was guilty,” Boring said in his opening statement.
Former Cobb prosecutor Philip Holloway said he expects the state will argue “that was the moment (Harris) made his decision, though it was an idea he had for some time.”
But for the jury to buy that premise they’ll have to believe Harris capable of such a monstrous act.
Harris to police: 'How is that against the law?'
After three weeks of testimony, much of it regarding Harris’ reckless sexual escapades, jurors might be able to make that leap. Surveillance footage of Harris’ interview with Cobb Police Det. Phil Stoddard on June 18 was especially harmful to the defense, Merchant said.
On it, Harris, asked to recount his day, noticeably pauses before failing to mention that, after lunch, he purchased light bulbs from Home Depot and then placed him in his car. By then Cooper had been inside the Hyundai Tucson for roughly three hours. Harris offered all sorts of detail about his movements that day but forgot perhaps the most important one, at least to investigators.
He can also be seen calmly questioning Stoddard on what constitutes murder under Georgia law. Informed by the detective that his actions caused his son’s death, Harris argued that it wasn’t intentional. “How is that against the law?” he asked.
The jail house video also helped counter the defense’s claim that Stoddard charged Harris on June 18 without cause, said Holloway, now a Marietta defense lawyer.
“His demeanor showed why police considered him a suspect in the first place,” he said.
But lead defense attorney Maddox Kilgore got the best of Stoddard after the detective pointed out that Harris’ photo gallery included photos of his son and his erect penis.
“So on the phone on the gallery is a picture of his sleeping son,” Stoddard said. “And it’s a beautiful picture. But on that same gallery there is a picture of his exposed, erect penis in a turgid state. … It says double life.”
“You done?” Kilgore replied.
Discrediting Stoddard was “everything” to the defense, said Merchant, who believes they inflicted damage to his credibility.
“Anybody who was listening carefully knows (the defense) pulled out some inconsistencies from his testimony,” she said.
'He knew what he was going to see'
No part of the evidence is as ambiguous as Harris’ return to his car after lunch.
It’s clear, in contrast to Stoddard’s initial testimony that Harris had a clear view inside his SUV, that his head remained above the roof of the car as he tossed the light bulbs into the front passenger seat.
“There was only one reason he would have thrown light bulbs,” Boring said. “He knew what he was going to see, and he didn’t want to see it.”
In the end, the jury’s decision on the malice charge could come down to a matter of inches.
“Some of the strongest evidence the state has is the close proximity inside the car between where Cooper’s head was and Mr. Harris’ shoulder,’ Holloway said.
No coincidence, then, that prosecutors concluded their case Friday with a 3D laser scan showing the exterior and interior of Harris’ SUV with a life-size doll depicting Cooper strapped into his rear-facing car seat. The defense contended the 3D video and stills did not provide an accurate depiction of the scene.
The laser scan shows that, had Harris merely glanced to the right, he could’ve seen his son’s head just a few inches away.
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