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Legal View with Ashleigh Banfield

Father of Hot-Car Death Toddler Refused Bond

Aired July 04, 2014 - 12:30   ET

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


ASHLEIGH BANFIELD, CNN ANCHOR: So what if he's a nice guy? I've seen plenty of nice guys turn awful.

DANNY CEVALLOS, CNN LEGAL ANALYST: Well, there are -- we've seen worse people than this defendant. We've seen better people than this defendant, and I think --

SUNNY HOSTIN, CNN LEGAL ANALYST: I don't think we've seen worse than someone who would intentionally bake their kid in a hot car.

CEVALLOS: Well, wait a minute, that's --

HOSTIN: That would be pure evil, if true.

CEVALLOS: If true. We're talking about the -- I'm talking more about the character-type evidence, the sexting, the other shenanigans.

But I will say this, when it comes to the -- I have to agree with Sunny. This is a defensible case, and here's why.

When you look at the Georgia cases that deal with felony murder, using child neglect as a predicate, there's some knowing neglect. It involves knowingly leaving --

BANFIELD: This is today.

CEVALLOS: That's correct.

BANFIELD: I guarantee you -- I'm going to put myself on the line, put myself out there right now, saying that is absolutely not what the grand jury's going to come up with.

I think they're going to go to town with premeditated murder.

Philip Holloway, get me into the Georgia -- I mean, this is your area. This is where you practice. You know not only the law in your state, but you know the players in that courtroom.

Get me into the defense attorney's mind and what he and his team are doing now.

PHILIP HOLLOWAY, FORMER ATLANTA PROSECUTOR: Well, Maddox Kilgore, like I said about Chuck Boring, he's also a very smart lawyer. He's very creative. He's very passionate, as we saw in the courtroom yesterday. He's always very prepared. So, you know, Danny's correct. Just because somebody has maybe an alternate lifestyle, some things that maybe his close et friends don't know about him, doesn't necessarily rule out that this could be an accident.

And the defense is, in all likelihood, exploring that possibility very closely.

BANFIELD: But, Philip, don't you think right now Maddox Kilgore realizes what he has to deal with in the next -- I'll just say -- two years, because oftentimes it can take that long to get to trial, that he is going to have to prepare right away for the possibility of defending a death-penalty case?

HOLLOWAY: That's true. And that's why we had the probable cause hearing.

Some people would say, why didn't he just wave it?

BANFIELD: Right.

HOLLOWAY: I think in this case he has to understand at least some flavor of what the prosecution's theory is and what their case might look like.

There's still a lot we don't know. For example, I'd like to know what the rest of that conversation was between Harris and his wife when they were in the police interrogation room being videotaped and audio- recorded. I would like to know what the rest of those statements were.

BANFIELD: You're going to. I think you're going to, because the evidence that was brought up on the stand from the investigator was that they have just scratched the surface on this one.

Hold that thought, Philip, if you will. Danny Cevallos and Sunny Hostin, stay around as well. That is the next topic.

Right now, while all the fingers are being pointed at Harris, some are pointing them to the woman who was sitting behind him in the gallery in that courtroom, the mom, Leanna.

Some of the things that she said to the people at the daycare to her husband while they presumably didn't think anyone was listening, very strange, certainly eyebrow raising.

But can they amount to her being charged in this situation as well? And with what?

Our legal team's going to weigh in, next.

(COMMERCIAL BREAK)

BANFIELD: This is certainly a case on a lot of people's minds, that little boy outside Atlanta who died in his car seat while his father did or didn't know he was in that SUV and the pretrial hearing that just unleashed so many details about the circumstances. The judge decided to move ahead with respect to murder and child- cruelty charges against the boy's father, Justin Ross Harris.

We're also hearing about what the father was doing while his 22-month- old baby boy was slowly dying in a boiling hot car.

CNN legal analysts Sunny Hostin and Danny Cevallos and former Atlanta prosecutor Philip Holloway are back with me, and I want to talk a little bit more about not just the father in this case but the mother in this case, Leanna Harris, because she also admitted to police that she also had looked up Web sites about kids dying in hot cars. She says she has an explanation for that.

And then we also learned about a couple of life insurance policies on baby Cooper, one of them, $2,000, one of them, $25,000.

So is that enough to have Leanna Harris involved more in this case? Is it possible Leanna Harris may find herself charged in this terrible crime as well?

We want to bring you all in on this, and, Sunny, I'll begin with you. Two things that stood out to me yesterday as the evidence came from the investigator -- and, again, that's the investigators' side of things -- this is the prosecutorial side of things -- was that when she went to pick up Cooper at the daycare, and they said to her, Ross didn't drop him off, her immediate reaction was, oh, my god, he must have died in a hot car.

Those are my words, but I'm paraphrasing pretty accurately, according to the investigator.

Who thinks that right away?

HOSTIN: No one. No mother. I think your reaction would normally be, really? Let me call my husband. I don't know what's going on. So that leap was very suspicious.

There are other things that she has said that are suspicious. I thought that it was very odd that, at the little boy's funeral, Cooper's funeral, she says, Would I want him back? Would I want him to come back? No, I wouldn't bring him back to this terrible world.

What mother --

BANFIELD: What mother says anything --

HOSTIN: -- would say that --

BANFIELD: -- anything to have my baby back.

HOSTIN: Of course, so when I look at her behavior, the fact that she also searched the Internet, if I'm the prosecutor in this case, man, am I bringing her into my office. I'm investigating her. I am --

BANFIELD: Clearly --

HOSTIN: -- definitely interviewing her, over and over and over again.

And in Georgia, even though everybody talks about the marital privilege, bottom line is, when you have the death of a child, you can compel -- compel -- that person to get on the witness stand and testify.

And so we know that she's --

BANFIELD: Really? That's the exemption from marital privilege?

HOSTIN: That's right.

BANFIELD: The death a child?

HOSTIN: The death of a child or abuse of a child. It's a very interesting exception that applies in a lot of domestic violence cases and they have that in Georgia.

BANFIELD: Danny, listen, we have all covered enough cases to see the strangest people behaving in the most absurd ways, and they ultimately are exonerated or they're acquitted and for good reason.

Everybody grieves differently, behaves differently, does things differently. We're all different animals.

These are strange facts. These are strange things she did. But strangeness isn't enough for a charge, is it?

CEVALLOS: Yeah, we have to be careful, because in times like these, it's interesting how everyone instantly becomes an expert on how to properly grieve or how to properly react to a stressful time or a crisis.

The reality is, psychologically, everybody reacts differently to different crises. And just because one particular group acts weird, there are plenty of weird parents.

Now, will that weirdness rise to the level of some kind of culpability? It certainly could.

But what's interesting about this preliminary hearing is, remember, the prosecution's burden is light. So the goal, the game for the prosecution, is to put only so much evidence as is necessary --

BANFIELD: They got more.

CEVALLOS: -- without showing their whole hand. So when they chose to show evidence that they did about character or motive or whatever it is, you have to wonder, why did they choose to put that out there?

Did they feel that confident about mom and dad's evidence? And what are they holding back? How much worse does it get from here?

BANFIELD: As one of the witnesses said, investigators said, we have only just scratched the surface. And I'm going to ask later on -- and I'm hoping, Philip, you can answer this -- when that woman answered her husband, who was complaining to her in an interview room, where presumably they didn't think anybody could hear, he was complaining, why is this happening to me, I'll lose my job, I'll be charged with a felony.

And she responds, Why? Did you say too much? That to me was distressing.

I want you to hold that thought over the break and come up with a good answer as to why that isn't automatically something where they say, you know what, I think we need to charge her and squeeze more information out of her.

So hold your thoughts, folks, more disturbing details from yesterday's hearing where Justin Ross Harris' life is on the line. the explicit text messages, the pictures that he was sending and receiving, how that information, the sexting, including allegedly with someone who was just 16 at the time, could play into this case.

(COMMERCIAL BREAK)

BANFIELD: Just before the break here on LEGAL VIEW, I asked Atlanta attorney Philip Holloway the question, what about a damning statement that a wife makes to her husband in an interview room at a police station when presumably they don't assume anyone can hear?

And that statement from Leanna Harris was to her husband, Why? Did you say too much?

Look, Philip, on its surface, it sounds awful, but it is defensible as is everything. Is it defensible enough to actually avoid a charge in this case?

HOLLOWAY: What's more interesting than the statement was the -- and I've got my notes from court yesterday.

Apparently the defendant told the wife, he dreaded how Cooper would look when he found him, and so we got to explore the context of these statements. We've got to see the entire conversation.

It raises a very interesting legal issue, though, as to whether or not that might even be admissible in court, because in Georgia, taping private conversations can be illegal. It all depends on whether or not he was considered to be in a public or a private place.

So this is going to be something that I guarantee you the defense in this case is going to be exploring very, very closely.

BANFIELD: OK, well, one of the issues obviously that's going to be explored is what was on the couple's various electronic devices, whether they were work computers, home computers, telephones, any kind of electronic device because there was some very internet searches. Certainly by now, we all know there was really graphic texting and sexting going on when Justin Ross Harris was at work and his son was slowly dying in the SUV. All of this happening prior to and during the time that that little boy was dying in the car.

(BEGIN VIDEO CLIP)

DETECTIVE PHIL STODDARD, COBB COUNTY, GEORGIA POLICE DEPT.: He visited several sites it and the -- it was people who die. Once again, may not be the perfect -- but it is people who die. It shows videos of people dying in all sorts of ways from suicides to Iraq, executions. Those types of videos.

(END VIDEO CLIP)

BANFIELD: Yes, and then also the whole idea about advocating child free life and how to survive in prison, those were also sites that were accessed and researched online. CNN's legal analysts, Sunny Hostin and Danny Cevallos, they are still here with me.

Now CNN's technology analyst, Brett Larson has joined the conversation. The reason I wanted you to join this conversation was because I don't understand how this, in this day and age, anyone doesn't know, whatever you type ultimately can be found, even if you delete. But could you at least give me this answer --

BRETT LARSON, CNN TECHNOLOGY ANALYST: OK.

BANFIELD: Because I know the defense attorneys in the house and everywhere are watching. You can never prove who's at the keyboard, or can you?

LARSON: You can't prove who's at the keyboard. The only way you could prove, I guess, in legal terms, beyond a reasonable doubt, is if it was your laptop that had your password and you're in front of it the entire time and they can say no, at 1:45, you went on Google and you typed in the search term and we have you on the security camera sitting in front of that same laptop.

BANFIELD: And the security camera isn't broken in perhaps some way, the security camera's time stamps are perfect?

LARSON: Absolutely possible.

BANFIELD: And there isn't hacking possibility?

LARSON: There is always that hacking possibility. You could say, I must have downloaded a virus and someone took control of my computer remotely. That's a little bit of a stretch. But that's definitely a possibility.

BANFIELD: How much cached information can be found? How deletable is anything?

LARSON: A lot. Pretty much everything you do online --

BANFIELD: No matter how good you are because apparently the investigators say this guy is a whiz on the computer. They called him something like that in the courtroom. Even a whiz can be tracked. LARSON: If you're really, really good at it, you can definitely delete everything that you do. There are ways of deleting your entire persona online. If he was very good at it, it's definitely a possibility. If he was at a work computer, there's always the network there that's going to be keeping track of what you're doing. There's always, there's always a digital paper trail.

SUNNY HOSTIN, CNN LEGAL ANALYST: You know what I find interesting about this, the prosecution is saying that he searched Redit, the Redit forum, on this child-free lifestyle. That's sort of for me the most damaging piece of evidence. Is it possible that just sort of popped up on the internet?

LARSON: It is, it could have been a trending topic that day on Redit. There could have been some popular posts about it. You see all the things that are trending and people are talking about.

BANFIELD: Don't you have to actively go to those particular sites Sunny was talking about?

LARSON: Right, you do.

BANFIELD: If you have to actively make an effort and a couple of steps to get to that, it's a big difference between a pop-up. Casey Anthony's case seemed to argue, they were just pop-ups and I didn't even want to see them.

LARSON: You could say, well, someone in my office, I jumped up to go have a cigarette or get a coffee and someone was standing there, let me look that up, here's a computer that's available. Around the newsroom, it's not uncommon for someone to sit down and look something up when you're not sitting there.

BANFIELD: Everything can be explained away. There's a defense for every element that a prosecutor will bring up in a crime or in a case. Ultimately, when you have to explain away five, six, ten, 15, of these bad facts, isn't that when the jury starts to desperately try to get away from benefit of the doubt?

DANNY CEVALLOS, CNN LEGAL ANALYST: You're never going to be able to do that, there's always going to be some doubt, but at some point, the judge or the court takes a reasonable view and accepts the evidence. The problem is, technology is always outpacing the law. Some of the things our expert talked about, most judges aren't familiar with. They may be three or ten years behind. As we choose to continue our lives more and more online, we create more of a wake of digital evidence and that evidence is just harder to hide. It's just -- that's just the way it is. The more we log in, the more our record is kept.

In fact, this was an issue in New Jersey. A lot of times people think if they access their web mail from a browser at work, then the employer can't get to it. But the employer can access, if it's a work computer, can access the images, and not the log-in information.

BANFIELD: It also gives defense attorneys ripe fields for work as well. It's ammo for both sides, I always say, which makes this area so fascinating. It's just what makes these cases so incredibly interesting. Brett Larson, thank you for that. I'm going to be tapping you for a lot more information as we continue to see what the investigators come up with since they've just scratched the surface.

And Danny Cevallos and Sunny Hostin, as always, stick around, a couple more things to talk about. This is one of those cases where you can almost feel it. It is becoming very high profile. Yesterday was probably a great example of that. A prelim that lasted up to four hours and had people riveted. What about those cases before it, those unbelievably fascinating high-profile cases? Will they play into how the lawyers work on this one? That in a moment.

(COMMERCIAL BREAK)

BANFIELD: Justin Ross Harris is accused of some questionable behavior after leaving his son to die in a hot SUV. For example, police say there was an overwhelming stench of death in that vehicle, but Harris was somehow able to drive for several minutes with the windows rolled up before he ultimately stopped and then that boy's body was pulled out his car seat and laid out on the pavement.

We have seen questionable behavior in these types of cases before. Weeks after he granddaughter went missing, Casey Anthony's mother noticed a foul odor in her daughter's car. That's when she called 911.

(BEGIN VIDEO CLIP)

UNIDENTIFIED CALLER: There's something wrong. I found my daughter's car today and it smells like there's been a dead body in the damn car.

(END VIDEO CLIP)

BANFIELD: Now CNN legal analysts, Danny Cevallos and Sunny Hostin, and former Atlanta prosecutor, Philip Holloway. That is a damning thing, not only was that smell overwhelming an hour after this happened, but that night, many hours after the stench was overwhelming, according to investigators. Quickly, Sunny, can a jury get past that fact?

HOSTIN: I think that's going to be huge for the jury. Everyone can connect with that. Who hasn't left food in their car or left something in their car and then gone immediately into the car and thought, what's going on? He doesn't do that in this case. We know now the car must have really smelled terribly. I've smelled it. Anyone who has smelled the smell of death knows it immediately --

BANFIELD: No, he's disagreeing with you --

HOSTIN: -- just drives away without even opening up the windows, drives two miles --

DANNY CEVALLOS, CNN LEGAL ANALYST: It's interesting we talk about Casey Anthony because you will recall one of the issues is the science of odor and how humans perceive it. The takeaway from the Casey Anthony case is the science of smell may be more subjective than objective and it may not be as scientific as we think. Smell, like beauty, might be in the eye of the, or the nose, of the beholder.

BANFIELD: I don't think it worked for the Casey Anthony jurors. They believed a lot about Casey, but they just didn't believe the biggest part. I want you to jump in here as well. While we're comparing cases to other famous cases, these defense attorneys might actually be looking very closely at it.

You know, Scott Peterson also had an affair and a lot of circumstantial evidence and ultimately there was a conviction in that case. I'm not even sure if there was any computer activity going on. When they talk about all the sexting that was going on with this defendant, Justin Ross Harris, as his child was dying, do you think there is anything that leads you to believe that the people in your community need to stay out of this, that the prosecutors need to move this case somewhere else, that it is already too damning, it is already too high profile?

HOLLOWAY: Well, I don't really know where you're going to go, anywhere in the state of Georgia that doesn't have the same information obviously, it's on national television. If it gets moved, they'll have to try to find some place that might be more neutral. Let me go back to the smell thing. I've smelled that before myself when I was a police officer. It's something that is absolutely -- it still sticks with me to this day.

It's absolutely remarkable how strong and unforgettable that is. The district attorney was vilified in social media about how he charged this case initially as murder. I think now we're beginning to understand why. And, you know, there was a YouTube video and things like that that came out, you know.

Once we now know that you got a guy who's getting in a hot car where there's an immediate smell of death, and that his story seemingly doesn't add up, that explains why the charging decision was made at the time it was made.

BANFIELD: Let's remember, everyone, as we go forward covering this case, that charging decision may not be what the ultimate charges come from out of the grand jury. I have to leave it there, but thank you to all of you, Philip Holloway, Sunny Hostin, Danny Cevallos. To our viewers, thank you for watching.

I want to wish you a very happy Independence Day, happy 4th of July, hope it's not raining where you are and you get your fireworks tonight. Brianna Keilar's sitting in for Wolf today and she'll start off the right after this break.

(COMMERCIAL BREAK)