Georgia Rules of Evidence Carry the Day in the Ross Harris Hot Car Death Appeal

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You have probably heard by now that the Georgia Supreme Court on Wednesday reversed the conviction of Ross Harris for murder for the death of his young child, Cooper Harris, who Ross Harris left in the back seat of a hot car for hours.  I think the Court got it exactly right.  Many people have some very strong opinions on both sides of this case. All you have to do is check the hashtag #RossHarris to see how polarized the public is on the case.  The reversal was certainly big news not only in Georgia, but Nationwide. This was a closely watched case.

This may be Justice Nahmias’s final opinion on the Georgia Supreme Court, and he is going out with a bang.  I never thought Mr. Harris should have been prosecuted for murder in the first place.  We know through neuroscience that it takes very little time or effort to distract our brains.  Just the slightest deviation in our typical routine can make you forget where you intended to go or that a baby is in the car with you. Season 2 of AJC’s podcast Breakdown makes this clear with even an example of an Arkansas judge, Judge Wade Naramore, who left his 19-month-old child in his car while he was in court, resulting in the child’s death. The judge’s 911 call is one of the most horrific calls you will ever hear. You’ll also hear about an elementary school principal who left her home early one morning with her baby in her car seat in the back seat. It was too early for her to drop the baby off at day care, so the school principal deviated from her typical, normal route to go pick up doughnuts. Then she drove to school. Hours later a teacher saw the baby in the back seat. They rushed to get her out but she was dead. That simple deviation to the doughnut shop made the elementary school principal forget her child was in the back in her carseat.  I urge you to listen to the AJC’s podcast. Season Two is called “Death in a Hot Car.”

Today, there are many tools a parent can use to help you remember your child is in the back seat, e.g., Baby in Car Seat Alarms, that sound an alarm and flash lights in your car if you forget your child in his car seat. There are phone apps, e.g., Kars 4 Kids Safety, or Backseat App, that alert you to check for you child in the backseat. Even the GPS app WAZE has added a Child Alert to remind you to check on your child before getting out of your car. This shows that anyone can make this mistake and now there are tools to help you not make it.  The National Safety Council has tracked children left in hot cars for over 20 years. It reported that in 2018, 52 children died being left in hot cars. Since 1998 over 800 kids were lost from vehicular heatstroke. Of these deaths, 24% occurred in employee parking lots, just like Cooper Harris.  This is telling.  For those who are adamant that “this would never happen to me,” we know through neuroscience that that belief is simply one created through a heuristic called “defense attribution.” “Defense Attribution” is defined as “bias or error in attributing cause for some event such that a perceived threat to oneself is minimized. For example, people might blame an automobile accident on the other driver’s mistake because this attribution lessens their perception that they themselves are responsible for the accident.” Our minds do this to us when there is something so horrific you can not imagine it ever happening to you.  We also know that the worse the event, the stronger the human mind insists it would never happen to me.  This is something personal injury attorneys often face with jurors in cases in which the injuries to the plaintiff are horrible.

Mr. Harris made a horrible mistake, but it should not have been prosecuted as murder.

The evidence presented at trial by the prosecution about Mr. Harris’s secret life as an apparent sex addict was admitted for the purpose of showing the jury he was a bad guy and not likeable, all to try to secure a conviction. It had nothing to do with the issue that was to be decided by the jury, i.e., did Mr. Harris intentionally leave his child in his car to kill him. Most of the evidence admitted by the prosecution was irrelevant to the main issue.  For example, the State admitted nine color photos, size 8.5 X 11 inches, of Mr. Ross’s erect penis. This had no relevance to whether Mr. Ross intentionally killed his child. As Justice Nahmias noted in the opinion: “Notably, at oral argument in this Court, the State’s counsel acknowledged that she did not know of a proper purpose for which the prosecutor introduced these nine, enlarged copies of pictures of Appellant’s erect penis.”
Harris v. State, S22A0092, 2022 WL 2230373, at *26 (Ga. June 22, 2022).

Justice Nahmias closes his opinion with this observation:

the jury also heard and saw an extensive amount of improperly admitted evidence. The jury heard several days’ worth of testimony from a dozen witnesses about Appellant’s extramarital (and sometimes illegal) sexual activities, saw hundreds of lewd (and sometimes illegal) sexual messages that Appellant exchanged beginning in 2013 with numerous young women and girls, and were given nine full-page color photographs of Appellant’s erect penis that ensured that the jurors did not miss the point that he was a repulsive person. Three sex crimes that Appellant committed against a 16-year-old girl were actually presented to the jury for verdicts (which were obviously guilty).
Much of this evidence was at best marginally probative as to the alleged offenses against Cooper, and much of it was extremely and unfairly prejudicial. We cannot say that it is highly probable that the improperly admitted evidence did not affect the guilty verdicts that the jury returned on the counts involving Cooper. If Appellant is to be found guilty of those crimes, it will need to be by a jury not tainted by that sort of evidence. For these reasons, we reverse Appellant’s convictions for the counts related to Cooper.
Judgment affirmed in part and reversed in part.

Harris v. State, S22A0092, 2022 WL 2230373, at *38 (Ga. June 22, 2022)

Our evidence rules make it clear such irrelevant evidence that is so obviously unduly prejudicial should be excluded. The Harris opinion is a primer on our evidentiary rules, particularly O.C.G.A. § 24-4-401, -402, -403 and -404. Every trial lawyer should read this opinion and put it in their trial notebook.  It will, undoubtedly, be cited many times in the future on character evidence. It is also a wonderful example that no matter how horrible the facts, our criminal justice system and evidence rules are there for a purpose, to ensure a fair trial under law.

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Ms. Clark is the co-host of the podcast “See You In Court,” sponsored by the Georgia Civil Justice Foundation.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.


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