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Why this hot-car death verdict could change things

Posted at 12:44 PM, Nov 17, 2016
and last updated 2016-11-17 12:44:00-05

It’s a verdict that could reverberate across the nation.

On Monday, a jury in Georgia found Justin Ross Harris guilty of murder in the June 2014 death of his 22-month-old son Cooper, who was locked in a sweltering SUV for seven hours while Harris was at work. Prosecutors argued that Harris, who was exchanging sexual text messages with women the day Cooper died, intended to kill his son because he wanted to be free of his family responsibilities.

Other parents have been convicted of manslaughter in hot-car deaths. But Harris’ case is unusual because he has been found guilty of malice, or deliberate, murder, legal experts say.

“Generally, incidents where parents leave their kids in the car have been treated as accidents or, if the parent knew the child was left behind — like going in the store for a few minutes — as a misdemeanor, a much lesser crime,” said Atlanta trial lawyer Page Pate, who specializes in criminal defense.

But the Harris verdict could change that, he said.

“In the past, if the police caught someone doing that, they would usually just get a citation and a fine if the child wasn’t injured. I think those cases will be treated more seriously now.”

CNN legal analyst Paul Callan agreed, saying the verdict could embolden prosecutors to be more aggressive in pursuing criminal charges against parents whose children are left to suffer for long periods in hot cars.

“The case will only set a direct precedent in the state of Georgia, but prosecutors throughout the nation will undoubtedly be influenced by the success of Georgia prosecutors and may choose to follow this success with prosecutions of their own in similar cases,” he said.

Cooper Harris

Cooper Harris

Grim statistics

Every year, there are dozens of recorded cases of parents accidentally leaving their children in cars. Statistics compiled by children’s advocacy group show that nearly 800 children have died in the US after being left in the back seats of cars since 1990. So far this year alone, 37 children have died in hot cars, according to the group.

The vast majority of these cases involve responsible parents who simply forgot their kids were in the back seat, said Janette Fennell, president of the advocacy group. Other factors such as alcohol, drugs or interaction with child protective services occurred in only about 10% of the cases, she said.

Fennell estimates that criminal charges were brought against parents or other caregivers in about 25% of the cases.

Harris is not the first parent to be convicted of murder in the hot-car death of their child. In 2012, a jury found Mollie Shouse, 29, guilty of wanton murder for leaving her 2-year-old son to die in an overheated car while she was in her Louisville, Kentucky, apartment, passed out on drugs. The “wanton murder” charge does not imply an intent to kill but an extreme recklessness showing no concern for human life. In other words, as described by Pate, “an accident, but an inexcusable one.”

A judge sentenced Shouse to 35 years. But the Kentucky Supreme Court threw out her murder conviction in 2015 on the grounds that Shouse should be retried on a second-degree manslaughter charge.

“While nonetheless reprehensible, the grief and self blame that follows such conduct could be viewed as strong punishment that calls for a lesser criminal offense than murder,” the court said in its ruling.

Hot car as ‘weapon’

Harris’ case is unique because his actions appeared to go beyond mere negligence, observers say.

“Prosecutors in the case said that Harris wanted to kill his child and use the hot car as a weapon,” said neuroscientist David Diamond, a professor of psychology at the University of South Florida who has spent 12 years studying fatal memory errors and forgotten children and has testified as an expert in criminal and civil trials.

“I do accept the possibility that any parent might want to harm a child. That’s why they had to investigate the case.”

Malice murder, as defined by the Georgia state criminal code, “shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.”

“Malice murder is intentional murder,” said Pate, who added he was not aware of another case where a person was convicted of malice murder for leaving their child in a hot car.

Harris’ lawyers claimed the boy’s death was a tragic accident brought about by a lapse in memory. But prosecutors described Harris as living a “double life” — an outwardly loving husband and father who also had extramarital sex in public places and paid for sex with a prostitute.

“This is one of those occasions where actions speak louder than words,” Cobb County Assistant District Attorney Chuck Boring said after the verdict. “He has malice in his heart, absolutely.”

Most parents in hot-car deaths were doing routine errands the day their child died, said Diamond, the psychology professor. But Harris’ illicit behavior with other women led authorities — and maybe jurors — to view him as more culpable, he said.

“In this case the ‘double life’ aspect was used by the prosecution to arouse suspicion as to his motives for leaving his child in the car,” Diamond said.

But Callan, the CNN legal analyst, said Harris’ attorneys may have a shot at a successful appeal on the grounds that his sexting and other illicit behavior, while reprehensible, was “totally irrelevant to the crimes charged and was used to improperly inflame the passions of the jury.”

‘Flawed memory systems’

Harris could face life in prison without parole at his December 5 sentencing. H. Maddox Kilgore, his defense attorney, said he plans to appeal the verdict.

Diamond said the evidence suggests Harris may have just suffered a lapse in memory.

“People want to categorize leaving a child in a car as different from all the other memory failures, but I say that is incorrect, ” Diamond added. “There’s a cruel twist to this, in my view. When a parent loses awareness, the brain creates a false memory… parents universally report when they exit the car they 100% believe their child is where it belongs, at home or daycare.”

Both Diamond and Fennell are urging Congress to pass the Hot Cars Act of 2016, a bill that would require automakers to add a system alerting drivers if a child is left in the back seat.

“My point of view is it’s not a matter of irresponsible parents, it’s a matter of having flawed memory systems,” Diamond said.

But the Harris verdict shows that a flawed memory may not be enough to get parents off the hook, said Pate, the criminal defense attorney.

“I think this case sends a strong message to parents that it’s never okay to leave a young child in the car and that police will scour your personal life — emails, Facebook postings, Internet searches, etc. — to try and determine malicious intent if the child is injured or killed as a result of being left in a hot car,” Pate said.

“And they will prosecute people even when they don’t have direct evidence that there was an intent to kill the child,” he added. “This case shows that intent to kill can be proven entirely by circumstantial evidence.”