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THE LEAD WITH JAKE TAPPER

Probable Cause Hearing Held in Toddler Death Case

Aired July 3, 2014 - 16:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


MADDOX KILGORE, ATTORNEY FOR JUSTIN ROSS HARRIS: Has the interaction that you have personally observed the between Ross and Cooper, has it been of a loving father-son relationship?

UNIDENTIFIED MALE: As far as I can tell, yes.

KILGORE: OK. And that's from your personal experience in observing him and the family together, right?

UNIDENTIFIED MALE: Yes.

KILGORE: Are you aware if Ross has any hearing issues?

UNIDENTIFIED MALE: He is deaf in one ear, or mostly deaf.

KILGORE: OK.

UNIDENTIFIED MALE: Mostly being 99 percent?

UNIDENTIFIED MALE: I always have to go to the other side of his head to talk to him.

KILGORE: OK.

And you have been around -- you have been around Leanna as well?

UNIDENTIFIED MALE: Yes, I have.

JAKE TAPPER, CNN ANCHOR: I'm Jake Tapper. This is THE LEAD.

We have been watching a live probable cause hearing out of Georgia where officers have been laying out stomach-turning new allegations against the father accused of intentionally leaving his 22-month-old son to die in a hot SUV earlier in June. Let's continue to listen in.

KILGORE: No more questions, Your Honor.

UNIDENTIFIED MALE: You may step down, sir.

KILGORE: Thank you.

I think that's all the evidence that we have at this time.

UNIDENTIFIED MALE: All right. Do you wish to make any argument, Mr. Kilgore?

MADDOX KILGORE, ATTORNEY FOR JUSTIN ROSS HARRIS: I do, Judge.

Judge, this warrant alleges cruelty in the second degree as the underlying felony for a charge of felony murder; 16570 says, cruelty in the second is when such a person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.

So we have got to look at what's criminal negligence; OCGA16-2-1 says that's an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.

What does willful mean? Well, Black says willful means voluntary -- voluntary and intentional.

We have heard a lot of suggestions and speculations and maybe even coincidences, but you certainly haven't heard any evidence that this was intentional, certainly not what was charged in the warrant as well.

What is wantonness? Black says that's conduct indicating that the actor is aware of the risks, but indifferent to the results.

I think, if you take a look at the facts -- specifically, Judge, the facts of the going to the car in the middle of the day, I think it's clear that -- and the continued banter throughout the day with his friends -- there's no evidence Ross was aware that child was in the car.

Why in the world -- if that were the case, why in the world would he bring his colleagues right up to the car? It makes no sense at all. I don't think there's any evidence of wantonness.

Reckless disregard? Well, Black says that's a conscience indifference to the consequences of an act. He's got to be aware that the child is even in the car for there to be a conscious indifference.

I want to just go over a couple of cases quickly with the court. A recent Georgia Supreme Court case explained that criminal negligence necessarily implies not only knowledge of probable consequences which may result from the use of a given instrumentality, but also willful or wanton disregard for the probable effects of such instrumentality upon others likely to be affected thereby.

That's Sullivan vs. Kemp (ph), 293 Georgia, 770. If there's no evidence that he had knowledge that Cooper was actually in the car when he walked away and went to work, if there's no evidence that he had that knowledge, it's not criminal negligence.

It's a horrible tragedy and an accident. The Bohannon case, which is 230 Georgia Appeals 829, the defendant in that case was convicted of involuntary manslaughter because she had knowingly picked her baby up from a baby-sitter, knowing that she was drunk and her husband was drunk and then knowingly placed the baby in the bed between them.

It was all done knowingly. Dad rolled over and smothered the baby. In that case, the underlying act wasn't a felony, like here, cruelty in the second. It was a misdemeanor. It was reckless, reckless conduct. So, the court explained that it was criminal negligence. Why? Because it was knowing. She knowingly undertook those acts.

She knowingly put the baby in that situation. The act of putting your child in a car seat, that's what we're dealing with. That act is not inherently dangerous. Now, knowingly leaving your child in a car seat while you go about other activities, of course that might be.

But there's no evidence that Ross had that knowledge. Suggestion, innuendo, and all of this about, well, we have got motive because -- we have got motive because he's doing all this fantasy texting, great.

Well, I'm -- first of all, it's not illegal. Second of all, there's no connection, there's no nexus between that activity or those activities or that lifestyle even and the suggestion that somehow, somehow this was intentional or had knowledge?

There's no evidence of knowledge. So it's -- what I'm saying is this, Judge. It's not even criminal negligence enough to support a misdemeanor.

Just a couple of cases I want to mention to the court that specifically involve criminal negligence involving a child, and in each of these cases, it explains very clearly there's got to be some knowledge or appreciation of the potential harm.

Johnson vs. the State, 292 Georgia at 856, that was a felony murder based on cruelty in the second. The court did find criminal negligence where the defendant left her methadone out for her child to get into, and then, when the child went comatose, she just didn't seek medical care for a couple of hours.

That was criminal negligence because her actions were done with knowledge. Morast (ph) vs. the State, 748 Southeastern 2nd, 287, that was a cruelty in the second, and that was affirmed where the mother, she continued to take her child to a caregiver with the knowledge that the child was being basically injured and attacked by dogs.

Nelson (ph) vs. the State, 731 Southeastern 2nd, 770, that case, of course, was here in Cobb, and that was the one where the mother was charged, I believe it was involuntary manslaughter. And the court agreed there was criminal negligence in that case because she had knowledge or an awareness that taking her child and crossing a busy street in the middle of the night vs. going down to the corner and crossing at the crosswalk, she had knowledge that that was inherently dangerous.

And unlike those cases, I would suggest to the court, we don't have any -- we don't have any evidence that he had that actual knowledge, that he knew, that he knew the child was there when he went about his work that day.

The -- the warrant that we're looking at here, and this is -- this warrant's from the 24th. You know, it's somehow trying to suggestion that there was this knowledge because, it says, "During lunch, said accused did access the same vehicle through the driver's side door to place an object into the vehicle. Said accused then closed the door and left."

Well, Judge, the evidence that you have actually heard regarding that incident shows absolutely that he didn't know Cooper was in the car. He goes to lunch with two friends. You have heard from both of them. They said he's behaving completely normal. There was nothing squirrelly about the way he was acting at all, completely normal, wasn't overly anxious.

After lunch, he goes -- they go get some lightbulbs. He has his friends take him directly to the car.

You have heard apparently in this video he opens the door, tosses the lightbulbs in. He doesn't linger. He doesn't get anything out of the glove box. He doesn't look back there. He doesn't do anything, nothing, nothing whatsoever to suggest that somehow he knows the child's in the car, nothing.

Thank goodness we got that video, because it's going to demonstrate just that. He's got no idea that Cooper's in the car. Why would he take his closest friends to his crime scene? Why would he do that, knowing that there -- I mean, there are going to be witnesses against him at a later time.

That doesn't make any sense at all. It makes sense if you realize he didn't know. And there's no evidence that he knew the child was in the car. And I do want to touch on this -- all this testimony you have heard about this fantasy texting or sexting or whatever -- whatever you call it.

You know, there's no -- well, first of all, that doesn't -- that doesn't evidence willful, wanton, or reckless disregard. You know, the state's thrown that out there with no nexus whatever between what he does in his private time and accidentally leaving his child in the car, no nexus whatsoever, none. OK?

So he does this fantasy texting. It certainly is not evidence that he consciously left his child in the car. There's -- there's nothing, per se, nefarious about it in this context. Perhaps it's immoral, but certainly there's no relationship or connection that's been made to his child being in the car, just a suggestion that, oh, he's got all this other stuff going on.

We didn't hear exactly what time it occurred, but I suggest to the court this. If there was any evidence that this was going on, on that phone during the time that he was driving his child to Chick-fil-A, driving his child from Chick-fil-A, we'd have heard about that. But there wasn't.

I think the real purpose of all of that is to publicly shame him. It's not like his family hadn't been through enough already; 1622 says that an accident is where it satisfactorily appears that there was no criminal scheme or undertaking, intention, or criminal negligence.

I want to read to the court what our pattern jury instructions says on accident. "An accident is an event that takes place without one's foresight or expectation, which takes place with -- which takes place or begins to exist without design."

The state wants to suggest all of these little -- these little sound bites all thrown together somehow constitute some grand design. I think it's very telling, Judge, that this motive we're hearing about, oh, it's financial. Well, they have got financial problems. There's a life insurance policy. They specifically asked about that. There's a life insurance policy.

But, yet, when I pressed the -- when I pressed the detective on that, well, no, not -- no, really, there wasn't any evidence. There wasn't anything that he determined from his investigation whatsoever specifically that there were any sort of financial distress, none, nothing.

He said, well, we thought Ross -- Ross had put some money on a credit card or Ross admitted that he put some money on a credit card. Well, their bank statements apparently weren't overdrawn or at least he didn't know about it if they were. No evidence.

There's got to be some knowledge and foresight, Judge, foresight or expectation. There's got to be some design. If not, it's an accident. I suggest to the court that we haven't heard that what happened here was that Ross pulled out of Chick-fil-A and his mind went elsewhere. What happened?

JAKE TAPPER, CNN ANCHOR: We're going to take a quick break now. We'll be right back with more from the Cobb County courthouse.

UNIDENTIFIED MALE: It's easy to get distracted when you get behind the wheel. Everybody has done it.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD.

For those of you just joining us, CNN has been broadcasting a live probable cause hearing out of Cobb County, Georgia, against a father accused of intentionally leaving his almost 2-year-old son to die in a hot car.

Let's go back live to the courtroom right now.

UNIDENTIFIED MALE: -- take it to the grand jury. But I'm asking you to give us a reset here. Clear all these people out of our community and let's deal with it, in the cool of reflection, not under all these lights, Judge. And the way to do that is, I'm asking you to dismiss this warrant. Not just because it's -- not just because it's the right thing to do, but because they don't have -- and haven't presented to this court the evidence of this case to go any further at this point.

JUDGE: All right, thank you, Mr. Kilgore.

Mr. Borne (ph)?

UNIDENTIFIED MALE: Thank you, your honor. Listen, (INAUDIBLE) here. It was interesting, he talked about

leftovers. You leave leftovers in the car, you get out, you get out of your car, you go in your house, 30 minutes remember, ah, I left some spaghetti in the car, or this or that.

This was a child. Not a child left out for 30 minutes, not a child left out for an hour, a child left out in the car for over seven hours.

Judge, it is almost -- I'm not going to beat a dead horse, which I did earlier. The evidence is overwhelming. We submit of malice, but especially of criminal negligence. I'll cite one case, your honor, court of appeals case, Cayne (ph) versus the state, July 31, 2007 decision, (INAUDIBLE) criminal negligence.

The defendant in that case was convicted. She let her kids, did not supervise them correctly, knew they were in her house, didn't supervise them correctly, didn't keep tabs on them, the children went out and drowned.

They went out and drowned because of her inattention. And remarkably, in that case, part of that was due to, and it was inadmissible, that she actually had had sex partners that night over and stayed up late and didn't pay particular attention to the kids, because she didn't get any sleep.

At a minimum here, Judge, to say that that is not relevant to his negligence, the facts that while that baby was out there cooking in that car, he was showing pictures of his private parts to other people, was totally talking to everybody else in the world about everything else other than his child, gets an e-mail in the middle of his day about his day care, goes out to that car, and tosses light bulbs in there. Who tosses light bulbs?

I think it is remarkable and speaks volumes that he didn't stick his head in that car. He knew what he was going to find. He knew exactly what he was going to find.

Judge, I think most importantly, one of the things you have is your common sense of reason, and you have those photographs. You heard the detective. You see where that car seat is.

Thirty seconds after he had kissed his son good-bye for the last time, he's at that decision where he decides to go to work. That's where he makes that decision. After making the U-turn, where he turns right, which is the same thing he said he did when he notices the child later that day, and he decides to go on through and go to work. He decides to go back out to that car, and he decides to wait until the car's passed -- and you heard from the detective about the video that the car passed, and then he opens the door.

He stops when a person starts walking toward his car and waits until that person passes and then reenters. That morning, he waits 30 seconds in that car after parking, after having had to turn around and back up. 30 seconds with that child right beside him. Judge, the warrant is for criminal negligence and felony murder based

on cruelty in the second-degree. We believe the evidence has shown much more than that. We believe the evidence has shown that this was intentional.

However, at this point, we're asking you to bond it over on the warrant that you have and hold this defendant on this warrant, felony murder based on cruelty to children in the second degree. I just don't even believe it's a close decision, Judge. Thank you.

JUDGE: All right, thank you.

Well, probable cause is a relatively low threshold and the court is persuaded that at the very minimum, there's reckless disregard for the safety of others in the conduct of Mr. Harris, in that the moments or seconds that he lapsed between the time he placed the child in the car seat until he got to his workplace, which is a matter of moments, he allegedly forgot the child. And then for him to enter the car later that day, after 4:00 in the afternoon, when the child had been dead and rigor mortis had set in, that the testimony is the stench in the car was overwhelming at that point in time, that he in spite of that he got in the car and drove it for some distance before he took any action to check on the welfare of his child.

So, I find there's probable cause for the two charges contained in the warrant.

Anything else today, Mr. Kilgore?

UNIDENTIFIED MALE: Judge, I would like you to consider bond, I've got several instances (INAUDIBLE)

JUDGE: Well, you have a right to present what evidence. You wish to state in your place what they would say or you would have one or two witnesses you want the court to hear from?

UNIDENTIFIED MALE: Judge, I'm going to -- I'll call his brother, Michael, at this time.

JUDGE: All right.

CLERK: Can you solemnly swear the testimony you're about to present is the truth, all the truth, and nothing but the truth, so help you God?

RANDY MICHAEL BAYGENTS, JR., WITNESS: I do.

CLERK: You may have a seat.

UNIDENTIFIED MALE: Sir, if you would, please, tell the court who you are. If you could give us your name and spell it.

BAYGENTS: Randy Michael Baygents Jr., B-A-Y-G-E-N-T-S.

UNIDENTIFIED MALE: And how are you -- are you related to Ross? BAYGENTS: I am. He's my brother.

UNIDENTIFIED MALE: Can you tell the court why you don't have the same last name?

BAYGENTS: My mother remarried when I was 1-year-old and married Ross' dad.

UNIDENTIFIED MALE: OK.

And were you -- were you in fact, raised with Ross?

BAYGENTS: I was.

UNIDENTIFIED MALE: We have heard something today about him having employment in law enforcement, but let me ask you first what it is that you do for a living?

BAYGENTS: I work for the city of Tuscaloosa as a police sergeant.

UNIDENTIFIED MALE: And what is your job there?

BAYGENTS: I'm the basic training coordinator for one of the regional law enforcement academies for the state of Alabama.

UNIDENTIFIED MALE: And has Ross, in fact, ever had any sort of employment in law enforcement?

BAYGENTS: He has.

UNIDENTIFIED MALE: And what was that?

BAYGENTS: He worked as a police dispatcher for the city of Tuscaloosa.

UNIDENTIFIED MALE: How long did he do that job?

BAYGENTS: I think a couple of years, two or three years. I don't remember the exact time frame.

UNIDENTIFIED MALE: OK. And tell us, Ross graduated from college?

BAYGENTS: He did.

UNIDENTIFIED MALE: University of Alabama?

BAYGENTS: He did.

UNIDENTIFIED MALE: And he works at Home Depot?

BAYGENTS: He does.

UNIDENTIFIED MALE: Can you tell us how long he has lived in this community?

BAYGENTS: Oh, several -- well, several years since he graduated from the university. Three years, maybe. Three? Four?

UNIDENTIFIED MALE: OK. And, of course, he lives with -- he lives with his wife?

BAYGENTS: Yes.

UNIDENTIFIED MALE: And they have a house or an apartment?

BAYGENTS: It's an apartment.

UNIDENTIFIED MALE: All right. And that's here in Cobb County?

BAYGENTS: It is.

UNIDENTIFIED MALE: And his wife has a job in Cobb County as well?

BAYGENTS: She does.

UNIDENTIFIED MALE: Can you tell us, have you had an opportunity or did you have an opportunity to observe your brother and his son together?

BAYGENTS: Yes.

UNIDENTIFIED MALE: Can you tell us about that?

BAYGENTS: He was a loving father, he loved his son very much. We went on family vacations together and he was a good dad.

UNIDENTIFIED MALE: Michael, do you believe that, do you believe that if the judge were to allow us to have a bond in this case, do you believe that your brother would be out committing crimes?

BAYGENTS: No.

UNIDENTIFIED MALE: OK. If the judge were allow us to have a bond in this case, do you believe there's -- is there any reason to believe that your brother would not come to court as directed?

BAYGENTS: No.

UNIDENTIFIED MALE: OK. Thank you.

UNIDENTIFIED MALE: How you doing, sir?

BAYGENTS: I'm good.

UNIDENTIFIED MALE: Sorry you have to be here today. How long have you been in law enforcement?

BAYGENTS: Almost 20 years.

UNIDENTIFIED MALE: OK. I think one thing we've all learned being in law enforcement that people we know sometimes we don't really know what's going on in their lives. Would you agree with that?

BAYGENTS: Sometimes, yes.

UNIDENTIFIED MALE: OK. Do you know where he's going to be staying if he gets out on bond? Is he coming to live with you?

BAYGENTS: I would imagine he's staying at his house.

UNIDENTIFIED MALE: OK. So he would stay in Cobb County?

BAYGENTS: I would think so.

UNIDENTIFIED MALE: With his wife?

BAYGENTS: I would think so.

UNIDENTIFIED MALE: And you or your family wouldn't be there to make sure he shows up for court or anything like that? I mean, he's an adult?

BAYGENTS: He is an adult, but I imagine we would be visiting him quite frequently.

UNIDENTIFIED MALE: Now, you stated that -- you told the judge, you didn't think he would commit crimes while out on bond, correct?

BAYGENTS: I don't think he would at all.

UNIDENTIFIED MALE: OK. Were you aware that he's actually committed acts that would be crimes in the state of Georgia in the past year?

BAYGENTS: I was not.

UNIDENTIFIED MALE: Did you know he's been chatting with underage girls and getting pictures of their breasts sent to him?

BAYGENTS: I did not.

UNIDENTIFIED MALE: Would that change your opinion as to whether he would be likely to commit crimes if released on bond?

BAYGENTS: No, it does not change my opinion.

UNIDENTIFIED MALE: That's all I have, Judge.

JUDGE: Who would help him post a bond if bond was set?

UNIDENTIFIED MALE: His wife.