Skip to main content
Part of complete coverage from

Lawyers' smart move in hot car death

By Danny Cevallos
July 9, 2014 -- Updated 2028 GMT (0428 HKT)
STORY HIGHLIGHTS
  • Danny Cevallos: Justin Ross Harris charged with felony murder, a controversial charge
  • Usually murder is intentional or behavior so dangerous it might have been intended
  • Cevallos: But felony murder is when someone is killed during a felony, which child abuse is
  • Cevallos: Legal experts think the real charge will be malice murder, or murder with intent

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Following the preliminary hearing of a Georgia father accused of allowing his child to die in a hot car, most legal experts agree that the prosecution will likely upgrade the charges to malice murder after the case is presented to a grand jury.

For now, until those charges are upgraded, Justin Ross Harris is charged with felony murder, perhaps the most widely criticized legal construct in American jurisprudence. To many legal scholars, the felony murder rule is logically and morally indefensible. To many members of the law-and-order public, the ends of the felony murder rule justify the means. And in Georgia it is liberally employed. It offers an end run around the very difficult standard of proof to find a killing was intentional.

First, let's define murder. Most Americans have a working definition of murder, formed not only by what they've gleaned about the law, but also their personal morality. Murder is generally understood to be an intentional killing, without justification.

Danny Cevallos
Danny Cevallos

There are subcategories of intentional murder: For example, killing by poison, torture, or ambush are considered worse; these show intent and take a more prolonged period.

In addition to intentional killings, those resulting from incredibly reckless behavior qualify for murder, too. It makes sense: If someone shoots a gun into a crowd of people, someone is highly likely to die -- even though the defendant could truthfully say he didn't actually aim for the victim. It's important to remember that this kind of murder is not defined simply by the stupidity of the actions -- the defendant must have been aware of the risk, and have acted with a depraved indifference to human life.

These are two main kinds of murder. One is intentional, and the other involves behavior so indifferent to human life and so close to intentional that it might as well have been. Those definitions make sense.

But then there's felony murder.

Call it what you will, but the "felony murder rule" is murder in name only. In fact, it's a first-degree murder charge for an admittedly unintentional killing. More specifically, it's a killing that happens during the commission of an inherently dangerous felony.

With this definition, the policy behind the felony murder rule becomes immediately apparent: deterrence. The rule sends a powerful message to would-be felons: burglary, arson, rape, robbery, and kidnapping are so dangerous that a defendant should know that an innocent person is likely to die. If you intend to rob a bank, then you know a bank teller might die. Therefore, you, too, should be charged with murder, along with that robbery -- even if you were driving the getaway car and not the one who pulled the trigger.

To felony murder supporters, it doesn't matter that a defendant is charged with murder, even a defendant they know didn't actually kill anyone and who didn't want anyone to die. To them, the ends of the felony murder rule justify the means: If you don't want to catch a murder case, don't rob banks.

It's the cases like Justin Ross Harris that really test the morality of the rule, while exposing some logical problems with its application. Georgia has a very broad felony murder statute: The only limitation on the type of underlying felony for a felony murder conviction is that the crime must be "inherently dangerous to human life."

Could mom face charges in hot car death?
New search warrants in toddler car death
Dad asked about collecting life insurance

Also in Georgia, a conviction for felony murder may be predicated on second degree child cruelty, which qualifies as that "inherently dangerous felony." That's what has happened so far in this case. The prosecution has charged Harris with second degree child cruelty, and used that charge as the predicate felony for the murder charge. There's just one problem: The second degree cruelty charge is a negligence crime.

That means Harris is charged with murder using a felony charge that is an unintentional crime. In other words, Georgia reserves the charge of murder for the most intentional, depraved conduct, but if you do something unintentional but negligent, that can be a qualifying felony.

So, charging Harris with felony murder predicated on child neglect was a brilliant strategic move by the prosecutors. Proving a specific intent to kill in this case will be more difficult than proving mere carelessness in parenting. And if both are murder, then there's no reason to charge the more difficult crime to prove.

Key role of digital evidence

Of course, at the preliminary hearing, you'd never know that the charge was negligence, because we heard ample evidence of malicious intent. The defense attorney made a reasoned argument that the prosecution's state-of-mind evidence was thinly disguised, improper character evidence, but the judge sided with the prosecution and allowed this damning evidence in against Harris. The sexting, the life insurance policy, the Internet searches, had nothing to do with Harris' alleged negligence -- remember, right now, negligence is the only basis of the felony murder charge.

It's as if the prosecution put on a hearing for a specific intent crime, malice murder, that hasn't been charged yet. That's why the preliminary hearing was just a harbinger of things to come. Why put on evidence of so much malice if it wasn't really germane to a charge of neglect? Because we'll probably see upgraded charges in the near future, once this case goes to a grand jury.

It's very likely that the felony murder charges will only be a short chapter in the prosecution of Justin Ross Harris. However, they present an opportunity to open a debate traditionally reserved for legal scholars and philosophers: Is felony murder an unfair legal fiction that overly punishes people for unintentional killings? Or, is the overall message to would-be felons worth ignoring the logical inconsistencies of the felony murder rule? In law, as in many things, legal minds can differ on whether the ends justify the means.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

Part of complete coverage on
December 20, 2014 -- Updated 0242 GMT (1042 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
December 17, 2014 -- Updated 1600 GMT (0000 HKT)
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
December 16, 2014 -- Updated 2154 GMT (0554 HKT)
Gayle Lemmon says we must speak out for the right of children to education -- and peace
December 17, 2014 -- Updated 1023 GMT (1823 HKT)
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
December 17, 2014 -- Updated 0639 GMT (1439 HKT)
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
December 12, 2014 -- Updated 2020 GMT (0420 HKT)
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
December 15, 2014 -- Updated 1456 GMT (2256 HKT)
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
December 15, 2014 -- Updated 2101 GMT (0501 HKT)
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
December 15, 2014 -- Updated 1453 GMT (2253 HKT)
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
December 14, 2014 -- Updated 2253 GMT (0653 HKT)
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
December 14, 2014 -- Updated 1550 GMT (2350 HKT)
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
December 13, 2014 -- Updated 2123 GMT (0523 HKT)
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
December 12, 2014 -- Updated 1426 GMT (2226 HKT)
Anwar Sanders says that in some ways, cops and protesters are on the same side
December 11, 2014 -- Updated 1439 GMT (2239 HKT)
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
December 14, 2014 -- Updated 1738 GMT (0138 HKT)
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT