A few weeks ago, some friends and I got together for our once-a-month book club and the topic of conversation turned to the much-publicized Georgia case involving a father charged with murder for the death of his two year old son. If you aren't familiar with the case, a quick Google search will give you more information than you probably ever wanted or needed to know about Justin Harris, the accused father. You'll see information about his internet history, his employment history, his eating habits on the day of his son's death, and you'll see articles about the text messages he was sending that day. The text messages are where our book club conversation spurred this blog post.
Because I am a defense attorney, I realize that my view of those accused of crimes is somewhat different than most of the public. I try to give those accused the benefit of the doubt, and I always keep in mind that the media--whether it's Fox News, MSNBC, CNN, or a local blogger--rarely has 100% of the facts. Or if they do have 100% of the facts, they are not knowledgeable about which facts are applicable to the case at hand. When I heard about the tragic death of two-year-old Cooper Harris after being left in a hot car after his father seemingly forgot about him, I was particularly doubtful that this was murder. While I'm not a parent (except to two dogs), I hear that it's a pretty exhausting, full-time job--on top of your other full-time job. I also know that my mom has told a story about the time she drove all the way to work with me in the backseat of the car, and it wasn't until she reached around to grab her purse did she see me strapped in the car seat and realized she had forgotten to drop me off. So I could easily imagine a scenario when something like Cooper Harris' death might occur. A tragedy? No doubt. But murder?
As the story unfolded and the media attention increased, Justin Harris was charged with felony murder and child abuse for the death of his son. I immediately did not agree with this decision and felt it was possibly a response to media hype. Then details started to emerge--and the way they were portrayed in the media did not make Mr. Harris look very good. There was live coverage of his preliminary hearing, and by the end of it, there probably weren't many people who didn't think Justin Harris was a no-good, murderous scumbag who deserved to spend the rest of his life in prison--or worse. The only problem with this opinion is that it comes way, way too early in the judicial process.
There have been posts on this blog about preliminary hearings, and the topic alone could cover one blog post (Merrida and Chuck--that's my topic for next time--don't steal it!), but here's a very brief, simple rundown. A preliminary hearing is also known as a probable cause hearing. They teach entire classes in law school on what constitutes probable cause and what probable cause really means, but all you need to know is this: at a preliminary hearing, the judge will decide whether it is more likely than not, based on the evidence presented, that a crime has been committed. If he or she determines that it is more likely than not that a crime was committed, then he or she has also determined there is probable cause for the charges.
At preliminary hearings, typically excluded evidence--like hearsay--is admissible to show probable cause, even if it will be excluded during the actual guilt phase. At Justin Harris' preliminary hearing, law enforcement presented evidence from Mr. Harris' personal cell phone, showing that during the day, while his son was still in the backseat of the hot car, Mr. Harris was exchanging text messages of a sexual and explicit nature with several different women--none of whom was his wife. Mr. Harris' attorney argued at the preliminary hearing that the evidence of "sexting" had no bearing on the case and was a tool to "publicly shame him." The judge allowed the texting evidence because it tended to show Mr. Harris' state of mind at the time of death. Which brings us back to my book club meeting.
One of my friends--who I in no way fault for her opinion, since it's clearly one the judge shared--was very upset by the fact that Mr. Harris was sexting while his son was dying, and she named this fact as one of the things that led her to believe he was guilty. I interjected that the texting evidence had literally no bearing on his intent to kill his child; it may make him a sleazy person, a horrible husband, and a questionable father, but just because he's adulterous doesn't mean he's a murderer. Most of the people in the book club didn't really agree with me, but that's not ever stopped me before from stating my opinion, so I continued. I told them all that the type of evidence allowed at the preliminary hearing--the text messages--would (or should, to be more accurate) not be allowed in at trial because it is exactly the type of evidence the Rules of Evidence do not allow.
Rule 402 of the Mississippi Rules of Evidence states that all relevant evidence is admissible, unless it's excluded elsewhere in the rules, and evidence that is not relevant is not admissible. The first argument against the text message evidence is that it's not relevant to the murder charge. As I said earlier, the fact that Justin Harris was sending explicit photos to women makes him a lot of things, but it does not make him a murderer. The prosecutors argued that the text showed his state of mind at the time--he wasn't thinking about his child--but I find it hard to believe that a parent is thinking about their child 100% of the time. Again, I'm not a parent, so I don't know from personal experience, but the earlier story about my mom leaving me in the car makes me believe it is possible for a parent to take her mind off her child and not want to kill it.
Rule 403 excludes evidence that may be relevant if it might cause unfair prejudice to the defendant. If we were to believe that the text messaging evidence has some sort of relevance to the murder charge, then it almost certainly should be excluded under Rule 403. The mere fact that my book club friend weighed it so heavily in her mind is proof of the fact that it is unfairly prejudicial to Mr. Harris. The key issue in the murder case will be the intent to leave the child in the car, and the explicit text messages are simply nothing more than character evidence to make jurors hate Mr. Harris. It is easy to believe someone is a murderer if you already think he's a bad guy for other reasons.
Which brings me to Rule 404. Rule 404 excludes evidence of the accused's character if it is being used to show that he is a bad person, and so he must have been being a bad person at the time in question, too. There are times when character evidence and evidence of "other bad acts" are allowed--when showing motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident. This blog post is already a little long, so I won't apply each of these exceptions to the Harris messages, but I will reiterate what I've already said: doing bad things at one time does not prove that you've done them a second time. The Rules of Evidence support that argument, and they are meant to prevent the type of poisonous thinking that the media feeds into.
I've inundated you with information in this post, and I hope you've stuck with me to the end. If there's one thing I want you to take away from this post, it is this: think about what you read or hear from the media. Think about the judicial system and the way you would want it to work if you ever found yourself accused of a crime. Would you want every text message you've ever sent or every internet search you've ever conducted to be splashed across the homepage of CNN? The Rules of Evidence and Rules of Procedure were created to protect defendants--yes, even the guilty ones--from unfairly prejudicial and irrelevant evidence. Justin Harris may be a bad husband and a sleazeball, but even bad people love their children. It is best to leave the determination of his guilt to the jurors charged with hearing the case--because unfortunately, the court of public opinion doesn't protect the accused from unfairly prejudicial and irrelevant evidence.