Mitch Durham, Counsel for Ross Harris

Durham: I’m going to begin by focusing on the issues regarding severance, prior bad acts, and admission of 403. I hope to reserve a few moments for rebuttal.

Regarding the Motion to Sever and admission of prior acts, our submission is that the trial court erred in allowing this mountain of evidence to come in during the trial. It was not intrinsic. It was not relevant under any purposes, whether it be for intrinsic purposes or whether it be for 404b purposes. The sexual messaging acts did not make it more probable that Mr. Harris would intentionally kill his child.

The case was actually indicted with another incident involving improper sexual contact with a minor. The dates listed on the indictment were in the days and months prior to June 18. The State also was allowed to introduce evidence dating back months to a year and a half to show that appellant was motivated or planned to kill his child intentionally so he’d be free to continue the sexual messaging acts.

Justice Peterson: Mr. Durham, the severance and 404b argument are interrelated because the judge’s conclusion that severance wasn’t warranted was based significantly on the idea that the evidence related to those sexual charges was going to come in anyway under the murder charges, right? If that conclusion was wrong and that evidence wasn’t admissible as to the murder charges, then it seems to me you have a much stronger argument on severance. Would you agree that those two arguments are kind of interrelated in that way?

Durham: I do believe the arguments are interrelated and I don’t believe they should have come in.

Peterson: So why isn’t at least some of the evidence of the sexually related conversations with people outside of Mr. Harris’s marriage, why isn’t at least some of that appropriate to come in to make the case for motive?

Durham: Before any of it could come in, you’d have to have a sufficient legal connection with the evidence in the case, and our case doesn’t have that. Cases cited by the State in support of allowing this to come in all dealt with prior abuse of the child, or threats against the child. There was actual evidence in the case that tied it to the theory the State was presenting. In our case, the tie-ins are just not sufficient. There was a sympathetic response to an anonymous post where the poster was frazzled being married with kids and very frustrated. Appellant submitted, “Well, I love my child and all, but we both need escapes.”

Peterson: I’m not sure I would paint Mr. Harris’s text messages and Whisper messages as sympathetic necessarily.
Durham: The context indicated it was. Now, Whisper, there are some horrible–

Justice Nahmias: About that particular message, you can paint that as sympathetic or you can paint it as agreeing with what was said. If you can paint it either way, isn’t that a jury question to determine which way to view it?

Durham: When you look at it as a whole, I would say it doesn’t meet the sufficiency to make it relevant. And to have a tendency to show that it’s more likely that he was actually planning–

Nahmias: That message, as I recall, was literally on the day in question, within minutes of leaving Cooper in the car, right?

Durham: Correct, your honor. Even if you do find that that is going to be a link and make that relevant to be introduced, you still have to look at probative value, not only that message, but the messages that came in–

Justice Warren: It seems there are things that happen on that day that are intrinsic. If that’s so, the messaging that’s happening on that day, and it’s properly admitted as intrinsic evidence explaining context of what’s happening on that day – particularly given some of the defenses that your client raised, such as being distracted and memory and things like that – then you get to the question of is any of the 404b evidence of the prior messaging ok.

Durham: I’m not conceding that it was intrinsic even though he was doing some of that on that day, because his sexting on that day, whether it be distraction, does not show that he’s intentionally going to kill his child. So I don’t think it’s intrinsic to those counts.

Peterson: Seems to me the stuff on that day was relevant to the case in at least two way. 1) It’s intrinsic in that it’s painting a picture of everything that was going on that might have contributed to, or detracted from, his ability to remember to drop his son off at day care and 2) The entire case of the State, virtually all of this is circumstantial trying to get to his motive, why he would do something like this intentionally, the State’s case was he wanted out of his marriage so he’d be free to have these kinds of relationships. Whether or not you agree that the State carried its burden to show that, those messages clearly are relevant to that.

Seems to me that your much stronger argument is, “Well, maybe some of that is relevant, maybe it all was relevant, but maybe messages with underage people, evidence of prostitutes and all of that, was so much more prejudicial than it was probative. Given that you’ve already got some of the stuff in, the marginal benefit of those other things may not have outweighed the unfair prejudice. Seems to me that’s your stronger argument.

Durham: I would agree the strongest argument we have is the 403 and I’ll get to that. You mentioned that the text showed that he may have forgotten because he was distracted. That would counter the State’s argument as far as the malice and intent issues, and it wouldn’t support that. Even if you do find that there’s a connection, we submit the connection making it relevant is not a very strong connection and that’s where the probative value comes in. Even if you think that some of these come in, you can’t find that all and especially, as damning as some of these are, because you have a very tenacious, a very slight connection, so that lowers the probative value going in.

Nahmias: The most prejudicial stuff seems to be the underage women and the prostitution, which is a separate crime. Also, there’s a number of enlarged pictures of Mr. Harris’s penis that I’m going to ask the State about. Did the defense make only a kind of over-arching argument that none of this comes in, or did you also object to particular parts?

Durham: Every time a piece of evidence was entered in this case. In pre-trial, the defense fought the State’s motion to have it admitted and they filed their own motion to prohibit it, but the defense motions were denied and the State’s motion was granted as to 404b. Once the state requested and each time a specific piece of evidence came in, it was objected to on relevancy grounds every single time. So it was preserved, it was objected to, but the Court continued to allow it to be piled on, to come in.

In reference to the underage issue, one thing that’s particularly aggravating is that not only do you have the indicted underage charge being attached to the murder case, but you also have several that were not indicted. Not only were they not indicted and charged in this case, but the State made note of it during cross-examination, during the questioning of witnesses, and also during closing arguments. The State commented that ‘some of these have not been learned about at this time’, so he wasn’t even indicted in this indictment. That allowed the State to let the jury know that he’s committing these acts and may not be punished for it. That is extremely violative of 403 analysis. So if you do find that the incidences on that date were allowable, things that happened a year and a half earlier – I’m not going to go into the raw details because they’re in the transcript – it’s not just that he’s having affairs or sexting people, but it is the graphic nature, how inflammatory that is to a jury when they’re back there reading it. And you had ten testifying witnesses. That’s not just ten acts, because with each one of those witnesses he had graphic conversations on numerous occasions. The State was allowed to present the transcripts of the messaging with the photos that were exchanged, explicit sexual photos and raw graphic language and it just kept piling on.

When you’re looking at the Olds case when you’re doing a 403 analysis, the more you pile on as far as the unfair prejudice acts come in, the lower the probative value goes, the higher the unfair–

Warren: The lower each individual piece of probative value might be, but I’m not sure you’ve answered Justice Peterson’s initial question. Which was why, as a threshold matter, at least some of that did not come in for motive?

Durham: We submit it shouldn’t have come in as motive because all they have to show to support motive are some vague statements. We would say they shouldn’t come in as motive because the State didn’t meet their burden to show it. But the Court found, and this Court may find, that some of it does come in as motive. If that’s the case, then he still needs a retrial so you can narrow it down and not just go back and have this avalanche of evidence that keeps piling in. If it comes down to the acts that were done on that day, then it needs to be limited to those. Also, any discussion about underage people is not relevant. What is relevant is 403–

Peterson: 403, a big part of that is harm analysis. Mr. Harris went back to his vehicle after lunch to drop off some light bulbs. When Cooper was found at the end of the day, there was testimony from responding law enforcement that there was a strong odor about the car. Was there any testimony from law enforcement or an expert witness about what odor would have been expected to have been in the car at the time Mr. Harris went back at lunchtime?

Durham: I want to point out that there was conflicting testimony, because numerous officers said they didn’t smell anything or they didn’t report anything. Some officers in their initial reports put no indication about smell whatsoever, and only came back a year later and added a supplement that they smelled it, so I’d like to remind the court about the conflicting evidence. The medical examiner said there may be the smell of urine and things like that–

Peterson: At the time that he went back at lunch?

Durham: Oh, I’m sorry. No, nobody made any statements about that. Also, at lunch I do want to reiterate that he was only at the the car for a matter of three seconds. He opens the door, puts the bulbs in, and closes the door. His head never goes below the roof. It was not a thirty-second or longer incident [as the State contends], but just a mere matter of seconds and he walked away. So there wouldn’t have been enough time, even if there were an odor.

Linda Dunikoski, representing the State

Dunikoski: There were at least two officers who noticed the smell of death and decay, decomposition, urine and feces at the scene, and an officer who went back the next day after the car had been towed to the cage area for analysis, for execution of the search warrant, also noticed a lingering smell. There was a witness who did a heat analysis of what the temperatures were during the day and I believe the medical examiner did talk about the nature and progress of the death throughout the day. Putting the heat analysis along with the medical examiner’s testimony, it appears that Cooper may have still been alive and unconscious at the time that the appellant went back to the car at lunchtime.

In addition, it is a thirty-second situation. As we all know, you approach a car, you walk up toward it, you’re looking at the car, he’s got the light bulbs in his hands. He has to open the door, he opens it up and we all know what a hot car smells like. Practical experience here, you open that door in the summertime and that heat wave hits you in the face. It hit him in the face. He put the light bulbs in and right there is the car seat and Cooper’s head was above that car seat. He was bigger than that car seat–

Peterson: That’s actually a disputed fact, right?

Dunikoski: Yes, it’s disputed by the defense. However, several people testified that he was larger than the car seat and that his head was above the car seat. As Mr. Durham just argued, “Oh well, he’s tall enough he might not have been able to see inside the car,” but we all know as you approach a car, that’s a different vantage point to see inside your car. And as you get up to it, maybe he couldn’t see but, again, that’s a jury question.

Peterson: When we’re talking about harm, we’re not applying the Jackson vs VA very deferential standard. We’re applying a reasonable juror’s standard. My question to Mr. Durham was whether there was any evidence regarding likely odor at the time of his mid-day visit. I don’t hear you saying there was testimony on that specific point.

Dunikowki: I don’t think anyone testified specifically that there would have been an odor. However, the medical examiner testified that by that time of day, Cooper’s bowels would have probably released themselves. Therefore, the logical conclusion is that there would have been at least the odor of urine and feces inside the car.

Nahmias: There were lots of messages sent on the day and the night before this event. You also needed to come up with some motive, because otherwise it’s almost impossible to explain why someone would purposely leave their child in a car. So it seems like some of the evidence may be relevant. I’m trying to figure out why you needed to mention the age of the women he was conversing with, why you needed to bring in prostitution which is a crime, and why you needed to take what were messages with thumbnail-size pictures and blow them up to full-size colored pictures and present them to the jury. So let me start with the last question. You have an Exhibit with nine enlarged color pictures of Mr. Harris’s penis. Explain why that is relevant, probative, and not prejudicial.

Dunikoski: It’s relevant because this is what he was actually sending to people. It was proof of what he actually did and, believe me, I understand that blowing them up full size to 8 1/2 x 11 so they can go back into the jury room to be seen is a trial prosecutor’s decision to make, and in this case the trial team obviously made that decision. I have no idea why they made that decision.

Nahmias: You are here for the State. You cannot dump it off on some other agent of the State. Are you defending that or are you conceding that – at least that – was irrelevant to blow them up? Then the question is, is it prejudicial enough to have any effect on the case as a whole?

Dunikoski: I can see that it was irrelevant to blow them up in that nature because there were thumbnails that demonstrated and proved that he’d emailed or texted pictures of his penis to these women, and the State had proven that necessary element. The position the State has is that, given the hundreds of pieces of evidence in this case, nine color photos sent back to the jury to look at are not unfairly prejudicial that would push over a juror into–

Peterson: Although the nature of the prejudice of those photos is also very similar to the nature of the prejudice that flows from the evidence regarding Mr. Harris’s unlawful sexual communications with a minor, his unlawful prostitution. If all of those things wind up being inadmissible under 403, I tend to think they’re at least marginally relevant, but the probative value they have, once all the other stuff came in, is almost zero.

So the prejudicial effect each of those has builds on each other because they’re all making the same point: this is a terrible person. And I will say, you did a remarkable job of proving he’s a terrible person, but proving that he’s a terrible person is not the same thing as proving that he murdered his child.

Dunikoski: We’re talking about only three witnesses. We’re talking about Miss Doerr with the prostitution. That is relevant and probative because just showing one instance of one thing that he did would not get us to the context–

Nahmias: In regard to the prostitution, why can you not get into the criminal aspects of these actual contacts and just talk about who these people were and whether or not he had sex with another person? I’m not sure why – it’s kind of a double-edged sword for you, the fact he was able to have sex with a prostitute while he was married makes it pretty minimally probative of the fact that he needed to kill his child to get unmarried. So what… he could then have sex with prostitutes? What is the chain of reasoning for why the prostitution is relevant?

Dunikoski: The chain of reasoning is this. First, the State wanted to prove that this was not simply a fantasy. All the sexting and messaging with these women was not just something in his head that he was never going to act on, because that would be the first line of defense: “Oh, this is just a fantasy he’s having. He’s never going to take any action on it, so there’s no reason for him to kill his child.” Showing that he was actually having sexual relations outside the marriage disputed the fact this was a fantasy. This was something he actually really wanted to do and was going ahead and doing it. And he was doing it over a period of time right before it culminated in the removal of Cooper Harris, murdering him so that he could get rid of his wife, get rid of his obligations to that family and move on into the world he wanted to.

Nahmias: When you say it was over a period of time, when I plot out the actual acts of sexual conduct, some of them go back well over a year before and there doesn’t seem to be any escalating pattern of those. They’re just spotty over a couple of years.

Dunikoski: Yes, but those are the ones we knew about, the victims or witnesses that we could get to come in and testify. When you look at his sexting and what he actually put out, he talked about numerous other liaisons and sexual acts that he engaged in. One of the reasons this was escalating is because the nature of this crime could only take place in the summertime in Atlanta. It could only take place at this juncture in time because Cooper was getting older. He’s 22 months, he’s going to be three next summer, so this is the only time that the appellant can do this. Keep in mind he’s about to lose Miss Meadows. He was in love with her. He said, “I’m in love with you. I would leave my wife if it weren’t for Cooper.” He actually showed up unannounced at her location to engage her and they kissed. He was still trying to get with her and at this point in time, on that day, she’s about to slip away. This is her going I’m not interested. I’m backing away. You’re never going to leave your wife. So it was necessary to show that it was going on over a period of time that culminated in the premeditated decision on this day to go ahead and murder Cooper.

Nahmias: I’ve read the closing argument and while your point about Miss Meadows was made, the concept that this was purposely planned for the summer before Cooper got too old, I did not see that presented or argued by the State. This was something that came up pretty quickly and was not planned out well because, looking at what happened, it does not seem like a very well-planned crime if you’re trying to commit an intentional crime. So two-thirds of what you say is nice after-the-fact construction, but it does not seem to be the theory the State used at trial.

Dunikoski: That’s correct. But I just argued it’s not part of the theory the State used at trial, but it’s not something that is outside the jury considering based on all the evidence. You had twelve people in the jury room and we have no idea what their discussions could be, but based on the State’s theory that there was motive and that the motive went back a year, and the evidence of that was the sexual liaisons outside the marriage, as well as the continuation of being in contact with these women constantly, wanting to get together with them, constantly wanting to have sex with them.

Nahmias: And why in those sexual liaisons was it required…ya know, sexual contact with underage people is an enormously prejudicial charge.
Dunikoski: Yes it is.

Nahmias: We live in a state that focuses enormous amounts of energy on human trafficking, which is trying to get sex with underage women or get underage women into situations where they can be sexually exploited. So why do you need to present that? Why are the ages and why do you need to charge him, and not just those charges but then there’s three other women who the State went to pains to prove were underage. What is the probative value of that added to what you were just saying about his general desire to have sex with people outside his marriage?

Dunikoski: You’re actually right. There is a very limited, low probative value to harping on the age of at least the victim that’s in the indictment. I believe the reason she was placed in the indictment is because he was in communication with her that very day. So while Cooper is dying, he is in communication with Miss Doster, attempting to get her to send him photographs. We have this ongoing relationship between her, talking about her age makes it a crime, so we have to put the crime in the indictment. We have to indict everything all at the same time.

Peterson: All the communications he had with her on the day of Cooper’s death, were those obviously criminal communications? My understanding is at least the first one, the contents of that message were not preserved.

Dunikoski: Well, fortunately, and I hate to say these words out loud, but on June 18 beginning at 1:17 PM with Miss Doster, appellant said, “I want to see your tits” and then he asked, “When can I see your pussy?” He then reassured her that she was not a slut for sending those items to him. And that was what was happening during Cooper dying in the car, so it’s intrinsic to what is going on. The state then presented evidence from December 2013 through May that he was repeatedly asking for photos and that he sent her photos on numerous occasions from March through June 2014–

Nahmias: And assuming that is relevant in some way, why did the State need to tell the jury that this person was a minor?

Dunikoski: We had to charge it as a minor for putting it in the indictment–

Peterson: That raises a severance issue and then the defense to sever that the State came up with and drafted the order for the court, that the court endorsed was, “Well, this evidence is going to come in to the motive charge anyway,” but that’s not necessarily true, because for the criminal charge you have to prove the woman’s age, but for the murder charge…I’m trying to figure out why her age is probative and not prejudicial.

Dunikoski: I think we’re talking about apples and oranges. We have to prove counts one through five, which are the murder counts. We also then had to prove six, seven, and eight that was happening on the same day. The age is important in those counts and that’s why we have Ashley Birmingham, the other girl who was 15 years old, and I think you mentioned two others and that goes to prove those counts.

The thing is, if the jury truly believed that he’d accidentally left his child in the car, they had a way to hold him responsible for counts 6, 7, and 8. They could find him guilty of what he’d done and then not guilty of 1 through 5. It’s not unfair prejudice, because there’s no way they truly believed he’d accidentally left his child in the car and he didn’t intentionally do it. That texting and sexting of a 15 and 16 year old girl, where they can hold him responsible by finding him guilty on counts 6, 7, and 8 would cause the jury to label him a murderer in its 1 through 5 when they really didn’t believe he was a murderer. They thought this was all accidental. So there is no unfair prejudice to Mr. Harris in this case, because the jury actually had a way to hold him responsible for, as you said, being an awful person–

Nahmias: By that logic, a severance issue would never, ever be prejudicial. So let’s say there’s a gang murder and you want to prove that the defendant, aside from being a gang member, has sexually assaulted a dozen young women, but you charged those separately. Your defense would apparently be, “Well, it doesn’t really matter. The jury wouldn’t find him guilty of murder. They’d just find him guilty of those other charges.” But the whole point of severance in 403 and 404b is you don’t want to bring in unnecessary evidence of bad character, because that leads juries to find people guilty of crimes – not the ones they’re charged with, but guilty of being bad people, right?

Dunikoski: Correct. In this case, it was not the State’s intent to have Mr. Harris found guilty of being a bad person. He either accidentally left his child in the car or he intentionally murdered his child. While that was all going on, he was sexting with a sixteen-year old girl. She was actually 17 at the time of the homicide, and also had a history of doing it with another young lady. They were two separate crimes, but they were intrinsic in the sense that they were together.

In your gang analogy, often you will have sexting someone into the gang, so sexually assaulting a number of women could be relevant to the gang membership because that’s what he did in order to sext them into the gang. It all becomes very fact-specific per the case and in this case what we have is a child dying in a hot car while Mr. Harris is messaging and sexting with numerous women all day long, which is probative evidence of–

Peterson: If we disagree with you, and say a lot of that shouldn’t have come in under 403, what’s your best argument for harmlessness?

Dunikoski: The best argument for harmlessness is that there’s overwhelming evidence that he murdered his child and that comes from a number of things that he did throughout that day.

Nahmias: You’re really going to say the evidence of intent here was overwhelming?

Dunikoski: No, you’re absolutely right, Justice Nahmias. I should not have said it was overwhelming. I should not have said that. I misspoke. Um, there was sufficient evidence for a jury if some of the motive evidence came in, not all of it. But in this case, when it all came in, was there sufficient evidence for the jury to determine that he murdered his child–

Nahmias: That’s not the test for harmlessness, although the State often makes that error. The test for harmlessness is whether we can say there’s a high probability that it did not affect the verdicts. You view the evidence not in the State’s most favorable position, but view it as reasonable jurors would view it.

Dunikoski: The answer is yes. Viewing the evidence as reasonable jurors would view it, there is a high probability that the sexting evidence did not contribute to the murder verdict if it were erroneously entered in.

Mitch Durham rebuttal

About the smell, Justice Peterson. I believe the medical examiner said there was actually no feces at all in this case, so there wouldn’t have been a smell there. As far as how much time he was at the car, there’s a video of how long the car door was open.

The State mentioned that in the Miss Meadows time-frame that it was the time [to murder Cooper] because she was leaving. If the court checks the record, that had been an off and on-again relationship in the past, so I don’t believe there’s any viability there, but even there were and she was the reason, all of the other bad acts, all of the other year and a half of the other women, it would not be relevant if she’s supposed to be the reason.

Also, the jury doesn’t have to believe he’s 100% innocent. They don’t have to believe he’s innocent at all. They have to find he’s guilty beyond a reasonable doubt, and that is why unfair prejudice in this case is so important. We’ve talked a lot about minors involved, but there was also other evidence where, even though she wasn’t a minor, there were two women who were teenagers. They weren’t minors. One he picked up at a college dorm. That was a year and a half earlier, and another he brought to the marital home, so those types of actions, again, are so far remote, time-wise, to the incident day that I can’t imagine the jurors are going to believe there’s probative (unintelligible) a year and a half earlier, but those have no probative value. I think a juror would be very appalled and shocked by those things. Again, it’s more of the piling on.

The State mentioned gang culture. There’s lots of times culture does come into play, whether it be initiation or retribution. It’s very disproportionate because of disrespecting a gang member, but there’s been nothing connecting someone who commits adultery being motivated to kill their child. Millions of people get on Whisper and do this sexual texting.

Peterson: But it certainly makes him less credible, right?

Durham: It absolutely makes him less credible–

Peterson: It substantially undermines the things he said on the day.

Durham: And it substantially discredits him in the eyes of the jury and I think it does so unfairly–

Peterson: I mean, that’s a very fair consideration for the jury to take, it seems to me.

Durham: Well, I think when you take sexual instances that were a year and a half earlier that he didn’t talk about that day, I don’t think those are disputed. I think when it goes back to the probative nature, the piling on.