Skip to main content

Hold off on judging dad who left son in car

By Mark O'Mara
updated 5:02 PM EDT, Thu July 3, 2014
STORY HIGHLIGHTS
  • Justin Ross Harris has been charged with murder, child cruelty after son died in hot car
  • Mark O'Mara: We need to look at any prior behavior that shows complete disregard for son
  • O'Mara: If there's none, we look at negligence; "forgetting child" needs to be analyzed
  • He says it's wrong to judge a negligent act by consequences, no matter how bad

Editor's note: Mark O'Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.

(CNN) -- A debate is raging over the tragic case of Justin Ross Harris, who left his 22-month-old boy, Cooper, in a car all day. Cooper perished, and now his father has been charged with murder and child cruelty. Some people call this a tragedy, and some call it a crime. Who is right?

Harris will appear in court Thursday to face a probable cause hearing in which the prosecution will try to convince a judge that it was indeed a crime. The defense will likely try to show that Harris' act was simple negligence. Either way, the focus will be on why Cooper was left in the car -- and although this seems counterintuitive -- for the purposes of the criminal proceedings, the tragic death will not be material for determining guilt.

To make the case that Harris committed premeditated first-degree murder by intentionally leaving his child in a car to die, the justice system will need to look at his prior history, both criminal and psychological, and consider any other acts that show a complete disregard -- or worse -- for the child. We should see some previous behavior consistent with his ability to act as one of the worst that we identify in our society: people capable of killing their own children. This behavior could include anger at the child or the child's mother, pending divorce litigation, frustration at an illness the child suffers, financial distress or other stressful situations.

Mark O\'Mara
Mark O'Mara

The defense and the prosecution and law enforcement have to examine these considerations quickly. If they decide that Harris is not the worst among us -- if he is not someone guilty of filicide -- then the alternative is one of negligence. In this case, the cause of "just forgetting his child in a car" needs to be analyzed.

We as humans often want to reassess our decisions based upon the outcome. Deciding to stay late at work and then being involved in a major accident on the way home puts focus on whether or not you should have stayed late. Splurging for dessert after dinner and getting hit by a car while crossing the street suggests the dessert was significant. The reality is when that decision is made, it is almost always inconsequential.

Shocking details in hot car death case
Wife defends husband in hot car death
Police: Mom researched hot car deaths

Nobody would have considered it significant if Harris had walked 10 paces away from his car toward his work and then remembered Cooper. The fact that a simply negligent mistake had devastating consequences does not, logically or rationally, make the act grossly negligent or criminal in and of itself.

CNN legal analyst Sunny Hostin bravely confessed in an opinion piece that she once left her child in the car, something she realized in horror a few moments later. Her baby was fine. It was simple negligence.

If Harris' mistake was one of simple negligence, that he truly just forgot to drop Cooper off at day care, then the question is: Should we make a simply negligent act that has significant consequences a criminal act because of those consequences?

That is an extraordinarily dangerous precedent to set. Thousands of cars get in accidents every day, most caused by simple negligence. Some are fender benders, some cause significant property damage, some cause simple injuries, some cause significant injuries and some end up with people dying. Our law is well settled in that context -- it is the negligent act that we focus on and not primarily the result.

One concept that we use in all of our jurisprudence is the reasonable man theory. That is, most people are presumed to act in a reasonable way, with the term reasonable determined by our societal norms. We judge each other in many circumstances based upon whether or not we've acted reasonably.

The reasonable man concept appears in other aspects of criminal law. In self-defense cases, we seek to find if a person had reasonable fear of great bodily harm or death. In civil cases, such as in personal injury law, the difference between simple negligence and gross negligence has huge implications on a plaintiff's chances to be awarded damages -- no matter how severely he or she suffered.

To change a well-settled principle of law -- that we are to be judged on whether we acted reasonably or negligently independently from the consequences -- would be a dangerous alteration in the way we interact, not only in the court system, but as a society.

Harris probably acted with simple negligence. If he did, he will deal with having been the cause of his son's death for the rest of his life, but he should not be held criminally liable.

There is one other possibility to consider. If Harris showed a reckless disregard for the consequences of his actions or a blatant indifference to his legal duties, then he may be guilty of gross negligence. If it is determined that Harris acted in a grossly negligent way, then he should be held criminally responsible.

If the facts came forward that he left his son in the car because he was drunk, or because he wanted to go out and party, then a criminal negligence standard would be easy to reach. If I drive my car in a school zone five miles over the speed limit, and run over and kill a child, I am probably only acting in a simply negligent way. If I do so at 70 mph, I would be acting grossly negligently, and should be held criminally liable.

We've all been quick to judge Harris, and we're going to have to wait for all the facts to come out before we can make an informed opinion. In this case, making an informed opinion means making a reasoned assessment regarding whether Harris acted on purpose, or whether it was negligence. We just have to be careful not to allow the tragic consequences of the act to influence how we judge the act itself.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 3:41 PM EDT, Wed July 30, 2014
Stuart Gitlow says pot is addictive and those who smoke it can experience long-term psychiatric disease.
updated 12:45 PM EDT, Wed July 30, 2014
Gabby Giffords and Katie Ray-Jones say "Between 2001 and 2012, more women were shot to death by an intimate partner in our country than the total number of American troops killed in the Iraq and Afghanistan wars combined."
updated 7:57 PM EDT, Tue July 29, 2014
Alan Elsner says Secretary Kerry's early cease-fire draft was leaked and presented as a final document, which served the interests of hard-liners on both sides who don't want the Gaza war to stop.
updated 7:58 AM EDT, Wed July 30, 2014
Vijay Das says Medicare is a success story that could provide health care for everybody, not just seniors
updated 2:18 PM EDT, Wed July 30, 2014
Rick Francona says Israel seems determined to render Hamas militarily ineffective.
updated 1:43 PM EDT, Wed July 30, 2014
S.E. Cupp says the entrepreneur and Dallas Mavericks owner thinks for himself and refuses to be confined to an ideological box.
updated 9:11 AM EDT, Wed July 30, 2014
A Christian group's anger over the trailer for "Black Jesus," an upcoming TV show, seems out of place, Jay Parini says
updated 4:28 PM EDT, Wed July 30, 2014
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
updated 3:39 PM EDT, Wed July 30, 2014
Carol Dweck and Rachel Simmons: Girls tend to have a "fixed mindset" but they should have a "growth mindset."
updated 7:56 AM EDT, Mon July 28, 2014
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
updated 2:22 PM EDT, Sat July 26, 2014
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
updated 8:51 AM EDT, Mon July 28, 2014
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
updated 2:52 PM EDT, Mon July 28, 2014
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
updated 2:31 PM EDT, Mon July 28, 2014
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
updated 1:44 PM EDT, Wed July 30, 2014
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
updated 12:35 PM EDT, Mon July 28, 2014
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
updated 11:55 AM EDT, Sat July 26, 2014
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
updated 2:22 PM EDT, Sun July 27, 2014
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
updated 6:25 PM EDT, Thu July 24, 2014
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
updated 11:10 AM EDT, Fri July 25, 2014
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
updated 11:33 AM EDT, Sat July 26, 2014
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
updated 8:45 AM EDT, Fri July 25, 2014
John Sutter responds to criticism of his column on the ethics of eating dog.
updated 9:02 AM EDT, Fri July 25, 2014
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
updated 2:50 PM EDT, Fri July 25, 2014
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
updated 2:03 PM EDT, Thu July 24, 2014
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
updated 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 8:09 AM EDT, Wed July 30, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT