Justin Ross Harris sits in a Georgia jail, awaiting trial on charges of felony murder and second-degree child cruelty for the June 18th death of his son, Cooper.
As the facts of the “Hot Car Dad” murder case began to spill out, I was immediately skeptical of dad’s story. I was in Atlanta around that time (experiencing the heat and humidity firsthand), and I participated in a re-creation of the alleged crime scene, using an identical Hyundai Tucson and a child seat, positioned in exactly the same way Justin Ross Harris said his 22-month-old son Cooper Harris was: center position, rear-facing.
All I could think was: “He couldn’t not see his son.”
But what of the cases from all over the country, both men and women, who have truly lost their children to a momentary lapse? How is it that any parent can forget about their child? Is it possible that there was something occurring in the mind of Justin Ross Harris that many of us simply can’t wrap our heads around?
A review of “hot car” deaths shows that automobile-related “death by hyperthermia” (the official name of this awful demise) is an equal opportunity tragedy. There is an excellent article on hot car deaths in The Washington Post that challenged my views on the fundamental question of how this could possibly happen. As it points out, parents who have accidentally killed their kids come from all walks of life, and include the rich, the poor, and everything in between. It’s happened to such a wide cross-section of people, from every level of education and occupation, that it is difficult to say who is at risk. And none of us think it could happen to us. And yet each year, several dozen of us are wrong.
And what’s more baffling still is that the way these events are handled by law enforcement and prosecutors varies considerably around the country. In roughly 40% of the cases, prosecutors review the facts and determine that the death was a terrible accident, that no crime was committed. In another 60% of the cases, on very similar facts, other prosecutors decide to bring criminal charges.
Even though each case is unique, based on its own unique facts, this class of cases, these “hot car” deaths, are more alike than they are different. In fact, the real difference in the decision of whether to prosecute appears more driven by geography than by the case itself. Some authorities see a hot car death and see an accident, one that is so horrific that the parent punishes themselves more than the court system ever could. Other prosecutors look at nearly identical cases and decide that they involve a level of recklessness, such a failure to act as a reasonable person, that criminal prosecution is required.
And of course, in those cases where a child doesn’t die, but is merely injured as a result of being left in a hot car, the same analysis applies. Was it an accident? Or was it criminal negligence?
Memory experts, and parents who have tragically walked this path, will tell us that the human brain is far from a perfect mechanism, and that when subjected to stress, plus deviation from routine, we can forget. And the mechanics of forgetting small things (where did I put my keys?) and big things (where did I put my baby?) are essentially the same. If we’ve ever done one, we are capable of doing the other. And yet at the same time it seems inconceivable.
So, was I too quick to judge Justin Ross Harris?
I returned to Gene Weingarten’s article in The Washington Post. One thing all of the hot car deaths had in common was a fundamental belief that the death was truly unintentional. The dispute was whether that accident was such a degree of negligence that it should be criminally prosecuted.
After further reflection, I don’t believe that analysis applies to Justin Ross Harris. It appears to me that this was no accident, that it was purposeful, and that the hot car was used as an instrument of death, just as sure to kill as a bullet fired from a gun. Every time I turned around, more damning material was revealed: the witnesses descriptions of overacting as CPR efforts began, the internet searches concerning how long it takes animals to die in the heat, the sexting from his office that day, and that at one point during that sweltering June day, dad returned to his car right after lunch to deposit something on the front passenger seat. Unlike the other hot car deaths, I kept returning to the fundamental point, that on these facts, in this unique case, it couldn’t be an accident. He couldn’t not see his son.
The Hyundai Tucson is described as a “compact sport utility vehicle.” When we did our recreation, I really got how “compact” it was. When I experienced how small that space was, and I recalled the view of the backseat that’s unavoidable as one enters the driver’s side of the car, all I could think was: “he had to see his son.” If it was indeed an accident, how could seeing that car seat not trigger his memory?
Based on the medical evidence at the probable cause hearing, the judge agreed with me that he couldn’t not see his son. The lunch hour visit to the car was considered especially compelling, since by that time experts suggest Cooper Harris was dead, that rigor mortis had set in, and that the stench in the car was overwhelming. He couldn’t not see his son!
And now the latest news is that Leanna Harris has “lawyered up.” While both the innocent and the guilty alike are entitled to have lawyers guide them through the complex legal process, I would not be surprised to see charges coming against mom. According to what’s been reported, and witness testimony at the probable cause hearing, when mom arrived at daycare to pick up her son, and told not there, her initial reaction was that “Ross must have left him in the car.” There were no facts known to support that notion at the time. And when Leanna Harris’s mother wondered to her daughter why she was so unemotional upon learning of her son’s death, she replied that she “must be in shock.” People who are in shock aren’t able to self-diagnose that they are in shock! Adding to the mounting suspicion is that Leanna never asked to see her son, only her husband. Their conversation wasn’t centered on the tragedy that just occurred, but instead what could it mean to Justin’s employment? What could be most damning was the question from Leanna Harris (when police put her in an interview room with Justin to observe them together): “Did you say too much?”
Law enforcement loves to have a co-defendant in a case. When there are two people accused, it is common to offer a deal to one to elicit testimony against the other, to inspire a defendant to “flip” in order to save their own skin. It’s common. So it will come as no surprise to me to learn that charges are being filed against Leanna, or that Leanna has cut her own deal in return for testimony against Justin.
Because if that car was an instrument of death, if this was no accident, it was something else: first-degree murder.
Darren Kavinoky is a criminal defense attorney at The Kavinoky Law Firm in California. He is the creator and host of “Deadly Sins” on Investigation Discovery, a TV legal analyst and keynote speaker. He is on Twitter and Facebook.
Photo: AP Photo/Marietta Daily Journal, Kelly J. Huff, Pool