Mimesis Law
8 August 2020

Ross Harris: Even Negligence Would Have Been Murder

November 16, 2016 (Fault Lines) — Ross Harris has been convicted of malice murder for the death of his son, Cooper.  In many ways, it was a slam-dunk case. The State had evidence that Ross Harris had left his son to die in a hot car for seven hours, on the very same day that he “sexted” six women.

Despite a strong defense, which included his wife saying that he had always loved his son and been a good father, evidence that a detective lied at a probable cause hearing to generative negative publicity, and the testimony of a memory expert, Ross Harris has been convicted of malice murder for the death of his son, Cooper.

The State argued successfully that he deliberately killed the boy so that he could live a “child-free” life. Despite the testimony of Harris’ wife, the jury believed that theory. That means that Harris will receive a minimum of life in prison, only coming up for parole thirty years into his sentence.

Some have already come out in opposition to the ruling, believing that Cooper’s death was the result of simple negligence. The defense argued, with the help of a memory expert, that Harris had simply forgotten his child, as so many other parents do, and that he had never had any intent to harm him. There has been a lot of coverage of the controversy. But there has been almost none about the most salient point of the case:

Ross Harris’ intent never mattered.

Ross Harris was charged with malice murder, sure. Under Georgia’s lax malice standard, that just means that he intended for Cooper to die when he closed the door and left him in the car. But he was also charged under Georgia’s felony murder statute. As we’ve discussed previously, under the felony murder rule, a death that occurs over the course of a felony is treated exactly the same as a deliberate murder.[1]

Harris was charged with two “predicate” crimes that led to Cooper’s death: first degree cruelty to children (deliberately harming a child) and second degree cruelty to children (negligently allowing a child to come to harm.) What would be the sentence if the jury found that Harris was merely negligent when he left Cooper in the car? Life in prison, parolable in 30 years. Sound familiar?

The only way to avoid this outcome would be for Harris’ attorney to successfully persuade the jury that Cooper’s death had been an accident, and that the accident involved no negligence whatsoever. The instruction is straightforward:

An accident is an event that takes place without one’s foresight or expectation, that takes place, or begins to exist, without design.

If you find from the evidence in this case that the incident that is the subject matter of this case occurred as a result of misfortune or accident and not as a result of a criminal undertaking or criminal negligence, then it would be your duty to acquit the defendant.

There’s a bit of a problem with this. In most jurisdictions, a death resulting from criminal negligence is usually charged as something like “involuntary manslaughter.” Under New York law, for instance, a killing based on reckless disregard for a substantial and unjustifiable risk of harm is involuntary manslaughter, and when the defendant fails to perceive that harm, it’s just negligent homicide, a Class E felony (the least serious).

But in Georgia, through simple charging sleight of hand, a prosecutor can turn that involuntary manslaughter into a straight-up murder, and leave it to the defense lawyer to try to get the judge to charge involuntary manslaughter as a lesser included.

What’s even worse than letting crimes of criminal negligence lead to murder charges? Georgia also allows for felony murder charges for convictions that have no meaningful intent element.  In Georgia, aggravated assault (placing someone in fear of injury with a potentially deadly instrument) is a general intent crime, meaning that even if you didn’t mean to scare someone, just your intentionally doing something that cause them to fear harm, is enough to convict. What does that mean? Justice Blackwell of the Supreme Court of Georgia summarizes it well:

To illustrate, suppose that you are driving down an Interstate highway, and you intentionally steer your car into an adjacent lane, having carefully checked to see that the lane is unoccupied and that you might safely change lanes. If you missed another vehicle in your blind spot, and if by encroaching upon its lane, you cause the driver of the other vehicle to apprehend an imminent and violent injury, you have committed an assault… one that may well be aggravated by your use of the vehicle… Under the precedents of this Court, most farmers and teachers, peace officers and preachers, lawyers, and members of this Court, as well as many members of the General Assembly, would be felons, saved from prosecution only by the grace of a prosecuting attorney.

So in short, charged properly, even if Ross Harris had been driving his car perfectly normally, and had gotten into an accident that killed his child while switching lanes, it would only be the grace of the prosecutor that saved him from a mandatory life sentence.

Intent means something. There is a difference between meaning to kill your child and forgetting him in the car. There is a difference between negligently allowing a death and having it happen to you because you switched lanes at the wrong moment. Yet all the power behind these sentencing distinctions end up left in the hands of the prosecutor, and how he chooses to indict each case.

Maybe the jury was right that Ross Harris meant to kill his child.  Maybe it wasn’t mere negligence. But that should be a distinction with a difference.  Until the Georgia General Assembly fixes the law, it won’t be.

[1] Most jurisdictions specify that only certain felonies can be felony murder predicates. In Georgia, everything is fair game.

6 Comments on this post.

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  • Jay
    16 November 2016 at 10:13 am - Reply

    Uh, parents forget their kids huh? You got any kids buddy? Just leaving them places? For seven hours? Nice…

    • william the stout
      16 November 2016 at 11:26 am - Reply

      Yeah, they do.


      The linked article may well be the best piece of journalism I’ve ever read. And for reference, I’m the father of four mostly grown children.

      Not saying that it has any application specific to the Harris case because I haven’t been following the Harris case so I don’t have any facts. Just figured that Jay may enjoy a different perspective.

      If Georgia law would not allow for anybody to make a distinction between an intentional act and an accident, then Georgia law needs to be changed. Fat chance, I know……

      • Andrew Fleischman
        17 November 2016 at 9:44 am - Reply

        Georgia actually HAS recently passed a second degree murder statute to cover negligent child deaths. The problem is that a creative prosecutor can still get around the statute through creative charging.

        There’s actually a Georgia case where a guy was convicted of vehicular homicide felony murder. That is to say, he killed someone in a car accident (a felony punishable by up to 15 years) and that felony led to the death of the person, so felony murder. Nuts.

    • bacchys
      16 November 2016 at 1:05 pm - Reply

      Google is choked up with Harris links, but around the time Harris was causing the death of his son a judge in Georgia did the same thing: left his child in a hot car and the child died. The judge was convicted of a much, much lesser offense than Harris has now been, and it was settled with a plea deal.

      People forgetting their kids in the car happens. A lot.

    • bacchys
      16 November 2016 at 1:08 pm - Reply
  • bacchys
    16 November 2016 at 1:02 pm - Reply

    I think you’re giving the jury too much credit. They convicted because Harris is A Bad Guy and he did a Bad Thing. The evidence and the particulars of the charges didn’t matter. Otherwise, they wouldn’t have convicted him on different murder counts that aren’t compatible with each other.

    Meanwhile, the prosecution did a bang-up job of proving Harris *was* distracted as he left Chik-Fil-A that morning. Very much so. To the point that it’s eminently more plausible he forgot his son was in the car than that he was plotting to kill him.

    Also ignored by the prosecution in their arguments is that, no, Harris would not likely have seen Cooper when he opened the car door. He might have seen the rear-facing car seat, but probably not his son.

    Like the Scott Peterson case, the prosecution did a great job of proving the defendant was a jerk instead of proving the elements of the charges against him were met.