Jan. 18—An attorney for Justin Ross Harris, the man convicted of intentionally killing his infant son by leaving him in a hot car in 2014, argued before the Supreme Court of Georgia that an adulterer does not necessarily a murderer make.
Mitch Durham told justices Jan. 18 that simultaneously trying Harris in 2016 for murder charges in the death of Cooper Harris and sex crimes for his liaisons with underage women had been so "inflammatory" as to compromise the trial.
"Our submission is 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 purpose," Durham said.
Harris, currently serving a life sentence in Macon State Prison, was not present for Tuesday's virtually-conducted oral arguments. After his conviction six years ago, he and Durham pressed in late 2020 for a new trial on similar grounds before Cobb Superior Court Judge Mary Staley Clark, who presided over the original trial.
Clark ruled last May that the court had not erred by allowing evidence of Harris' numerous extramarital affairs to be introduced. The text messages and photos he exchanged with women, Clark agreed, were key to establishing a motive for killing his son in an effort to escape his failed marriage.
The Supreme Court didn't immediately render a ruling Tuesday. Justices, however, seemed to have more skepticism for Cobb Assistant District Attorney Linda Dunikoski's case than they did Durham's.
Chief Justice David Nahmias took issue with the prosecution's decision to take thumbnail photos of Harris' genitals that he had exchanged with women and enlarge them to full-page size.
"It seems like some of the evidence may be irrelevant," Nahmias said. "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 also why you needed to take what were messages with thumbnail-size pictures and pull out the pictures, blow them up to full-size color pictures, and present them to the jury."
Dunikoski said that was the "trial prosecutors decision to make, and in this case, the trial team obviously made that decision. I have no idea why they made that decision."
Nahmias cut in, "You are here for the state. You cannot dump it off on, some other agent of the state did something," prompting Dunikoski to concede that particular move had not been relevant.
Nahmias was not the only justice to question the conflation of the charges.
"I will say you did a remarkable job of proving that he is a terrible person," said Justice Nels Peterson. "But proving that he is a terrible person is not the same thing as proving that he murdered his child."
The state's contention, Dunikoski replied, was that had the jury believed Harris was guilty of the sex charges and not murder, they could have convicted him of one and acquitted him of the other.
"So there is no unfair prejudice to Mr. Harris in this case," she added, "because the jury actually had a way to hold him responsible for, as you said, being an awful person."
But Nahmias pointed out that by that logic, there would never be a case where differing charges merited being tried separately.
Durham, near the close of his initial argument, said that even if just a fraction of the sex-related evidence was found to be irrelevant, it merited giving Harris a new day in court.
"This court may find that some of it does come in for (the) motive. If that's the case, then it still does need to have a retrial, so you can only narrow down the issues and not just go back and have this avalanche of evidence that comes piling in," he said.