BRUNSWICK — It was the elephant in the room that wasn’t going anywhere, resting firmly on Justin Ross Harris’ slumping shoulders for all to see.
In his first real opportunity to frame the circumstances surrounding the death of Harris’ 22-month-old son, Cooper, in June 2014, defense attorney Maddox Kilgore decided to address the braying pachyderm directly.
“Ross Harris is responsible for his child’s death. It’s his fault. There’s no doubt about it,” Kilgore said. According to the prosecution, Harris did it intentionally to pursue a lifestyle free of the encumbrances of children and marriage.
Later, Kilgore told the 6-man, 6-woman jury they were going to hear plenty about Harris’ immoral, sexually charged behavior. “He’s earned every bit of the shame that’s coming his way,” he said.
“He was unfaithful to his wife, you’re going to hear about that,” Kilgore continued. “You’re going to hear about very embarrassing, graphic sexual matters, vulgar language.”
They were admissions that had to be made, and, from the vantage point of lawyers closely following, but not affiliated with, the case, Kilgore did so deftly. Dunwoody defense attorney Esther Panitch said it “bought him credibility” with the jury, while Marietta defense lawyer Ashleigh Merchant said, “By owning up and saying, yep, he’s got a bad character, we’ll give you that, that really takes that sting out of the state’s case.”
It all led up to this:
“As (Harris) sat in his office on his phone, like every other day, texting away, saying God knows what, we know something that he didn’t know,” the former Cobb prosecutor said. “That’s why we’re so disgusted about it. But that doesn’t change the fact that at the time he was doing it, he was clueless.”
Kilgore may have gotten an inadvertent assist from an unlikely source late Tuesday afternoon, just before he was scheduled to deliver his opening statement. Lead prosecutor Chuck Boring had just presented a well-received, unsparing takedown of Harris’ character before his son’s death and demeanor the day of it.
But due to an unspecified issue with one of the jurors, Kilgore ended up getting 15 hours to digest Boring’s remarks instead of the 15 minutes intended.
“I thought Maddox had a great benefit of being able to rest the night and weave back into his opening with things he saw the state say bad about Ross,” said Lawrence Zimmerman, who is representing Leanna Taylor, married to Ross at the time of Cooper’s death. She’s expected to be called by the prosecution even though she has maintained her son died accidentally.
“(Kilgore) was able to show the jury, here’s what the state said. Here’s what they didn’t tell you and here’s why,” said Zimmerman, who is close friends with Harris’ defense team.
By focusing on contradictions in the state’s case, Kilgore was able give jurors a reason to be skeptical about testimony from prosecution witnesses, Merchant said.
“(T)hey didn’t call (Lead) Detective (Phil) Stoddard a liar flat out but they said essentially he had lied previously and that he’d misled the judge in the warrant application and in the preliminary hearing,” Merchant said. “And they brought out a lot of inconsistencies, and I thought that was very smart of them.”
The bumps in the road experienced by the state during the first week of testimony illustrate the challenges they face in proving Harris intended to kill his only child.
“There is no smoking gun in this case,” said Marietta defense lawyer Philip Holloway, another former Cobb prosecutor. “They have to prove malice through circumstantial evidence.”
And some of that circumstantial evidence is purely subjective. The state repeatedly asked witnesses at what would become a crime scene — the Akers Mill Square parking lot Harris turned in to after he says he first noticed Cooper’s lifeless body strapped in his car seat — to assess the defendant’s behavior in the minutes following the gruesome discovery.
“He was distraught. Everybody grieves in a different way,” witness Dale Hamilton testified. “It’s hard to say if it was believable or not.”
Cobb County Police Officer Brett Gallimore was less circumspect, testifying he found Harris’ demeanor to be inauthentic.
That isn’t what Gallimore seemed to be communicating in his police incident report, however. He wrote Harris was “acting hysterical” and appeared “extremely upset.”
“I felt like he was acting hysterical. Not hysterical, but acting,” Gallimore said Wednesday in an attempt to clarify his report.
It led Kilgore to move for a mistrial — denied by the judge — saying Gallimore “came out of the box with stuff that wasn’t in his report, totally and completely different. And we have the right in defending Mr. Harris to bust him on it and show the jury exactly what was in his report.”
Merchant said she can’t understand why Superior Court Judge Mary Staley Clark is allowing witnesses to be asked their lay opinions in interpreting the defendant’s grief. Everyone deals with trauma differently, she said.
Meanwhile, the prosecution’s case was not without its powerful moments. Jurors are unlikely to ever forget the crime scene photographs of Cooper, his body in a state of rigor mortis, his knees slightly bent, arms to his side.
“The pictures reminded the jury that, regardless of intent, this beautiful child died a torturous death,” Panitch said.
Photos of Cooper’s car seat, and its proximity to Ross Harris’ head in his 2011 Hyundai Tuscon, also left an impression, according to Panitch.
“The fact that his head was mere inches from his dad either speaks to Ross Harris’ cold heart or how reckless he was in being the protector of his only child,” she said. “Either way, it’s a murder under the law.”
Holloway cautioned that each side will experience plenty of ups-and-downs over the next six weeks.
“Both sides are very well-represented. They are well-known for doing their homework,” he said. “It has all the makings of a legendary trial.”
Testimony is tentatively scheduled to resume Tuesday morning, Cobb Superior Court Administrator Tom Charron said.
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