Maddox Kilgore, defense attorney representing Justin Ross Harris, makes an objection to a question posed by Cobb County Assistant District Attorney Chuck Boring, Thursday before Chief Magistrate Court Judge Frank R. Cox, at the probable cause hearing on charges of second-degree cruelty to a child and felony murder of their 22 month-old son Cooper. Attorney Carlos Rodriguez is seated in the middle.
Maddox Kilgore, defense attorney representing Justin Ross Harris, makes an objection to a question posed by Cobb County Assistant District Attorney Chuck Boring, Thursday before Chief Magistrate Court Judge Frank R. Cox, at the probable cause hearing on charges of second-degree cruelty to a child and felony murder of their 22 month-old son Cooper. Attorney Carlos Rodriguez is seated in the middle. (Staff/Kelly J. Huff)

Lawyers who watched it seemed to agree that no one had seen anything quite like the nearly four-hour probable cause hearing Thursday for Justin Ross Harris.

The proceedings determined he will stand trial for felony murder and child cruelty in the death of his 22-month-old son Cooper in a hot car–and that the father won’t be released on bond.

This hearing was strange, lawyers present agreed, not just because it went on for hours, the Cobb County courtroom was packed and the testimony was bizarre. The prosecution seemed to be laying a legal foundation for charges well beyond those in the warrant–felony murder, which doesn’t require the establishment of motive, and child cruelty, which only requires negligence. The testimony about motive–the father’s pornographic text messages to multiple women, visits to websites with content showing how children and animals die in cars and focusing on child free living–seemed more appropriate for upgraded charges of malice murder or even aggravating circumstances for a death penalty case, the lawyers said. A law professor and a public defender who watched said the state presented far more than necessary for negligence and the resulting felony murder charge.

Also, the key players–Assistant District Attorney Charles Boring, defense attorney H. Maddox Kilgore and Chief Magistrate Judge Frank Cox–had a surprise card to play.

The day began at dawn with television news crews reporting live from outside the Cobb County justice complex. Overnight, it seemed Marietta had sprouted a new skyline of antennas over news trucks at the corner of Roswell Street and Waddell Street across the road from the old Cobb County Superior Court building, where Magistrate Court is now located. Also on that corner, in view of the news trucks and the courthouse, is Stonebridge Church, where the Harris family worshiped since moving here from Alabama and where Ross Harris played guitar in a praise band.

By midday, a crowd had gathered around Courtroom P on the second floor. The courtroom opened at 1 p.m.–30 minutes before the start time–with a mass of people squeezing through the door and quickly filling the seats. Members of the defendant’s family from Alabama immediately began to block off rows of seats, some standing at the aisles attempting to save places for more relatives to come, others jumping onto and over pews to move around from row to row. A bailiff announced that no seats could be saved and no standing would be allowed. Still, relatives kept saving seats, even after they were joined by Leanna Harris, wife of Ross and mother of Cooper. They scowled at reporters around the courtroom, with one woman saying, “They’re a bunch of vultures.” They tried to force a reporter out of a seat until one of many armed Cobb County Sheriff’s officers in the room intervened, giving orders to stop saving seats, sit down and stay quiet.

By 1:20 p.m. the officers declared the courtroom was at capacity and ordered the doors locked. Because of the size of the crowd by then, they allowed standing room in the back and around the walls. Relatives protested that the defendant’s brother was on his way and that someone should leave so he could be allowed in. “He has no more right to be here than anyone else, Ma’am,” an officer said. “This is a public place.”

What the relatives didn’t seem to know is that under the rule of sequestration, the brother would not be allowed in the courtroom because he was a witness for the defense. He was brought in when he was called to the stand by Kilgore to say Ross Harris was a loving father who should be allowed bond and would be responsible for returning to court to stand trial. But by then, the demeanor of the relatives had changed.

The shift came during the two hours of testimony by Cobb County Police Detective Bill Stoddard, the only witness for the prosecution. The family remained calm through most of Stoddard’s testimony about Ross taking Cooper to breakfast at Chick-fil-A, belting him “tightly” into the car seat and kissing him–”in case he was in a car accident and died,” the officer quoted Harris saying–then leaving him in the car at his office just two minutes later.

The officer also said that just 30 seconds after leaving breakfast, they came to a turn that would have required that Ross look right, where he would have seen Cooper’s head coming up out of a rear facing infant seat that was too small for him. At that moment, instead of turning toward Cooper’s day care center, the father turned the opposite way toward his office. The officer later talked about Harris getting into the car at the end of the day and driving about a mile before screeching to a halt, taking Cooper out and laying his lifeless body on hot pavement.

The detective’s report that Harris viewed content about dying in hot cars and child-free living seemed to surprise no one, nor did the news that the couple had $27,000 in life insurance policies on Cooper.

But when the officer began talking about Harris sending explicit messages and nude photos of himself to half a dozen women during the day while Cooper was dying in the car, the defendant’s mother hung her head and buried her face in her hands. Later, Boring, the lead prosecutor, used that evidence to cross-examine witnesses for the defendant, winning admissions from his brother, work friends and church’s children’s minister that they didn’t know that side of him.

Lead defense lawyer Kilgore objected over and over to testimony about the pornographic messages–and to the officer’s description of Harris meeting one of the women at a park–saying, “This has nothing to do with the events of June 18.” Kilgore said the state was just “shaming” the defendant.

When Boring questioned the officer about Harris’ messages with half a dozen women on June 18–with Cooper in the car–Kilgore objected again, saying the relevant time frame was in the morning when Harris drove to work and forgot his son was in the car. But the judge overruled his objections.

At one point, Cox told Kilgore, “This is a probable cause hearing. There is no jury.” The judge noted that the threshold for probable cause is low.

Kilgore recovered with an argument that the “fantasy texting” may be immoral, but “it’s not illegal” and has no connection to whether his client knew he had left the child in the car.

“If there is no evidence that he had that knowledge, it’s not criminal negligence,” Kilgore argued, “It’s a terrible, tragic accident.” The defense attorney suggested that Harris’s actions “don’t even rise to the level of a misdemeanor.”

But the prosecution made an effort to tie all the testimony together to show a sinister pattern. “We believe this was intentional,” Boring told the court in his closing argument.

The defense’s surprise was revealing that the defendant is deaf in his right ear, offering that as an explanation of why Ross didn’t hear Cooper talking in the seat to his right in the middle of the back of the car. The detective admitted under Kilgore’s cross-examination that he didn’t know about the hearing impairment and acknowledged that it was relevant. But that bit of drama seemed to pale compared to the nude photos and messages Harris was sending to women throughout the day.

It was nearly 5 p.m. when the hearing concluded, with the judge finding probable cause for the case to proceed and denying bond. “Considering the defendant is facing a possible life sentence with a maximum of 30 years to serve–and that this could be upgraded to a death penalty case–there will be no bond today,” Cox said. The judge’s mention of the death penalty came as a surprise, since that topic had not been broached during the hearing or prior to it.

The judge noted two pieces of evidence in his finding of probable cause. One was that only 30 seconds elapsed between Harris putting his son in the car at Chick-fil-A and reaching a red light at which the turn toward work instead of toward Cooper’s day care center required Harris to look right, where he would have seen Cooper’s head. The other was the stench of decomposition police noted coming from the car after Cooper’s death–a smell Harris seemed to ignore as he got into his car at the end of the day and drove away from his office, traveling on for a mile before he pulled over into a shopping center seeking help.

When the judge announced he would not allow Harris to be freed on bond, some of the defendant’s family members wept.

After the hearing, District Attorney Vic Reynolds met with a crowd of reporters and camera crews outside the courthouse and read a brief statement saying that the police investigation is “still in progress and much work remains.” Prosecution decisions will be made only after the file is forwarded to the DA’s office, and they’ll be based on facts and law, not emotion and media attention, he said, adding that ethical standards prohibit further comment. “This case will run its course and we will follow wherever the evidence leads us,” Reynolds said. He answered no questions. Then, flanked by staff members, he strode around the corner and down the street back to his office.

Suddenly, the cameras had no one to point to. Then they gathered around a slender blonde woman who began discussing the hearing and the law like an expert. Some asked for her name. It was Jessica Gabel, an associate professor at Georgia State University College of Law. She had made the 20-mile trip from downtown to Marietta to watch the hearing.

“The prosecution made a much stronger case,” Gabel said. “It wasn’t the best day for the defense.”

After the television crews moved on to begin their live reports, Gabel stayed behind with a reporter and a law student whom she’d brought along, telling her, “It’s time for you to see what a probable cause hearing looks like.”

As it turned out, this one didn’t look like any other, Gabel and other lawyers present that day agreed. “When I was a public defender, my probable cause hearings never lasted more than 45 minutes,” Gabel said.

In this one, she noted, the defense seemed to be fishing for a preview of the prosecution’s case, asking open ended questions about evidence to see what was there. It wasn’t clear how much Kilgore knew going in about evidence police had gathered on computer searches and pornographic messages.

“I think the defense was completely blindsided by the sexting,” Gabel said. She added that she was surprised when the judge brought up the death penalty at the end.

It was a day of surprises, said Cobb Circuit Defender Randy Harris as he stepped out of the courthouse at about 6 p.m. He had watched the proceedings in amazement–not from inside the crowded courtroom but online from his office–although his office has no involvement in the privately funded defense. Bizarre as the sexting is, Harris wondered aloud if the defense might be able to use it to an advantage at trial. Why would a computer expert create this kind of evidence if he is aware of his child being left in the car that day?

The public defender was not surprised, however, that Cox found probable cause because the standard is so much lower than the “beyond a reasonable doubt” required in a criminal trial. Probable cause, he said, “takes only a scintilla of evidence.”

Scintilla–meaning the slightest particle or trace–comes from the Latin word for spark. The proceedings of the day leading up to the July 4 weekend seemed to bring that and more.