Dec. 15—MARIETTA — Justin Ross Harris, the Cobb County man who four years ago was convicted of murdering his 20-month-old son, began his appeal for a new trial Monday morning.
Represented by Marietta attorney Mitch Durham, the defense argued that a number of errors in the original trial deeply compromised Harris’s ability to receive fair treatment in court.
Harris attended the hearing through a video stream from Macon State Prison. Clad in a white jumpsuit, he occasionally took notes throughout the day, but was otherwise silent. Both Durham and the prosecutor, Linda Dunikoski, senior assistant district attorney for Cobb County, also joined the hearing via Zoom.
Much of Monday’s proceedings were devoted to the testimony of Dr. David Diamond, a neuroscience professor at the University of South Florida who has studied what causes parents to accidentally leave their children in cars.
Diamond was initially expected to testify in the original trial as an expert witness. But Cobb Superior Court Judge Mary Staley Clark, who presided over both the trial and Monday’s hearing, ordered Diamond in 2016 to hand over as evidence notes he had taken during meetings with Harris. Harris’s defense claimed it was placed in an “untenable position,” and ultimately declined to call Diamond to the stand.
Now the defense says handing over those notes was an improper use of discovery laws, and that it tainted the trial.
During the hearing, Durham and Dunikoski cross-examined Diamond on his medical expertise and specifics of Harris’s case. According to Diamond, evidence including Harris’s lack of sleep the night prior and that he broke his usual morning routine suggested the child’s death could have been a mere accident.
Following Diamond’s appearance, the court heard the testimony of Maddox Kilgore, who led Harris’s defense in the 2016 trial. Kilgore said Diamond had been the defense’s “primary witness” and “cleanup hitter,” but the disclosure of his confidential notes “scuttled” that strategy.
“We had hoped and expected David Diamond to be able to testify that what was observed in this case was consistent with memory failure he had seen in numerous, numerous other cases,” Kilgore said.
Near the end of Kilgore’s testimony, a testy exchange arose between him and Dunikoski as Kilgore argued that Diamond’s notes should not have been released.
“So, your fear was actually of the state’s attorneys being so good?” Dunikoski asked.
“You betcha. You betcha,” Kilgore said, raising his voice. “The state put its meaning to those words. A mediocre lawyer can do that, and the lawyers in this case were better than mediocre. They were very good.”
“What’s exactly going on right now? Y’all are talking over one another. I’m not sure why,” Judge Staley Clark said, shortly before adjourning for the day.
The hearing will resume Tuesday morning. The defense is expected to touch on further areas in which they say Harris was denied due process. Among those is the argument that Harris should have been separately tried for the alleged sex offenses that catapulted the case from notorious to scandalous.
Harris was revealed to have conducted multiple extramarital affairs while married to his then-wife, Leanna Cooper. The prosecution charged that Harris’s motive for the killing, in which he left Cooper Harris in the car for seven hours, was to start a new life free from the burdens of his wife and child.
Following his 2016 trial, Harris was convicted of malice murder and sentenced to life in prison without parole. He was also convicted of felony murder, cruelty to children, and distribution of obscene materials to a minor.
At the lunch break, Durham told Judge Staley Clark that he believed the hearing was ahead of schedule, and he did not anticipate needing the three full days set aside for the appeal.