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November 15, 2016

Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris

9859581_GA horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts.  This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me.  Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.  "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."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days.  Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory. 

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.  Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car.  Flat out."  If Cooper was visible, Boring said, "the defendant is guilty of all counts."  After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life."  To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument.  Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.  The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.  Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car.  Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:

1.  Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?

2.  Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" documentrequires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?

3.  Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?

November 15, 2016 at 05:09 AM | Permalink



Boiling is perhaps a little bit of editorializing. Not to mention it refers to cooking something in liquid which is heated. Roasting is, in my humble opinion, the more accurate nomenclature for the events which transpired.

Gallows humor aside, I don't find it particularly troubling when any prosecutor decides not to seek the death penalty. If what you're getting at in the parentheticals is the racially-biased nature of the criminal justice system, then of course we should all be horrified at it, though I'm not sure that this is the case with which to showcase that nature.

Posted by: Guy | Nov 15, 2016 9:00:37 AM

First off, the minimum sentence for murder in Georgia is life.


Second off, Cobb County rarely seeks the death penalty. There are no public defenders there normally, but death cases are defended by Georgia's elite Capital Defenders. Bringing them in delays a case for years and makes the result more uncertain.

Third, if there's a disturbing facet to the case, it's not that the sentence was too lenient. It's that Ross Harris would have STILL faced a mandatory life sentence even if the jury found that Cooper's death was due to negligence, rather than intentional conduct, based on the Second Degree Cruelty to Children felony murder charge.

Posted by: Andrew Fleischman | Nov 15, 2016 10:54:53 AM


Thanks. Reading about this case de novo my reaction was that it was neither intentional nor accidental but negligent. Yet it appears from your comment that that this mens rea distinction would not make any difference in terms of the sentence he was eligible for. I concur that this seems an anomalous result. It might also explain why the defense did not argue the distinction.

Posted by: Daniel | Nov 15, 2016 11:21:14 AM

Thanks for the link, Andrew, but the sentencing provision you like to says "(d) A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life." I assume this has to mean that the last option means life WITH THE POSSIBILITY OF PAROLE. Based on the article I linked in the main post, I assume that means in GA, no parole for 25 years but then a chance at parole.

So, unless I misunderstand the cite you gave, I stand by my view that the judge here has discretion to give LWOP or life WITH PAROLE. What am I missing?

Posted by: Doug B. | Nov 15, 2016 6:09:37 PM

That it's a 30 year minimum and rarely granted in murder cases.

Posted by: Andrew Fleischman | Nov 15, 2016 8:06:33 PM

Also, sorry, your 25-life confused me earlier. That's how we treat our aggravated child molestation statute, which requires 25 years in prison with life on parole.

Posted by: Andrew Fleischman | Nov 15, 2016 8:13:10 PM

Nothing about this story is consistent with an intentional murder. Other parents have done the same thing because we live in an age of distraction, stress and indeed escapism.

This seems like extreme prosecutorial overreach, not a case of seeking the trurth of what happened. It is really concerning when disproportionate minority impact, or racial disparity, becomes the main analytical lens. If all prisoners where white and all long sentences were for white people, would they be more just?

Posted by: Dan Jay | Nov 16, 2016 6:49:34 AM

Looking at statute, it seems like they proceeded on felony murder. The seven hours outside by himself in a car seems like a significant distinction between the typical involuntary manslaughter case where the parent was simply running inside the grocery store. (Georgia seems to still use a pre-Model Penal Code homicide statute which might also explain the difference between the charges in this case and the charges in other states.)

Posted by: tmm | Nov 16, 2016 10:46:28 AM

I think capital punishment should be reserved for cases where there is a minimum of doubt that the defendant intended to kill. "Beyond a reasonable doubt" is a fine standard for conviction, but I think the level of doubt for the needle should be lower than that. Just how much lower I don't know, but whatever the level is, I don't think this case reaches it.

It is a fact that parents sometimes do this by mistake. There is evidence that Harris did not do it by mistake. But I don't think it amounts to absolute proof.

For example, there are likely quite a lot of married men out there who sext with young, and even underage, women. Statistically, it is expected that sooner or later, one of them would do this by accident. I realize the evidence here is more than that ("we all need escapes"), but even that is subject to multiple interpretations.

Posted by: William Jockusch | Nov 24, 2016 1:22:26 PM

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