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 9:42 PM EST, Fri December 19, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
updated 2:51 PM EST, Thu December 18, 2014
Jeff Yang says the film industry's surrender will have lasting implications.
updated 4:13 PM EST, Thu December 18, 2014
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
updated 7:55 AM EST, Wed December 10, 2014
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
updated 12:34 PM EST, Thu December 18, 2014
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
updated 8:42 AM EST, Thu December 18, 2014
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
updated 12:40 PM EST, Tue December 16, 2014
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
updated 11:00 AM EST, Wed December 17, 2014
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
updated 4:54 PM EST, Tue December 16, 2014
Gayle Lemmon says we must speak out for the right of children to education -- and peace
updated 5:23 AM EST, Wed December 17, 2014
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
updated 1:39 AM EST, Wed December 17, 2014
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
updated 3:20 PM EST, Fri December 12, 2014
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
updated 9:56 AM EST, Mon December 15, 2014
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
updated 4:01 PM EST, Mon December 15, 2014
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
updated 9:53 AM EST, Mon December 15, 2014
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
updated 5:53 PM EST, Sun December 14, 2014
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
updated 10:50 AM EST, Sun December 14, 2014
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
updated 4:23 PM EST, Sat December 13, 2014
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
updated 9:26 AM EST, Fri December 12, 2014
Anwar Sanders says that in some ways, cops and protesters are on the same side
updated 9:39 AM EST, Thu December 11, 2014
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
updated 12:38 PM EST, Sun December 14, 2014
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT