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  1. #1
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    the charges: 2nd Degree Child Cruelty and Murder - What does it all mean?

    Some snips from previous posts to get this thread going. I see this thread as a place to discuss the charges and what they mean. This thread is meant for in depth discussion of the charges, the burden of proof involved and general discussion of whether the law as being applied make sense to you or not.

    Please lets discuss our varying points of view on this topic respectfully, agreeing to disagree when necessary. Thanks.

    06-29-2014, 06:59 PM
    tlcya
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    My own understanding of the charges:

    since it is murder under the (c) subsection - while in commission of committing felon child cruelty in the 2nd degree, no malice or aforethought (premeditation) is required.

    In other words as I understand it they have only to prove he committed the felony of the cruel neglect in order to also prove murder the way GA law is written. It is also interesting to note GA does not have varying degrees of murder <self-snipped>
    06-29-2014, 06:38 PM
    popsicle
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    2010 Georgia Code
    TITLE 16 - CRIMES AND OFFENSES
    CHAPTER 5 - CRIMES AGAINST THE PERSON
    ARTICLE 1 - HOMICIDE
    16-5-1 - Murder; felony murder
    O.C.G.A. 16-5-1 (2010)
    16-5-1. Murder; felony murder


    (a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

    (b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

    (c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

    (d) A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.

    http://law.justia.com/codes/georgia/...ticle-1/16-5-1

    http://www.websleuths.com/forums/sho...2#post10676842

    respectfully carried here
    07-04-2014, 06:12 PM
    tlcya
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    Join DateOct 2009Locationsmack dab in the middlePosts22,043Blog Entries8


    there are no degrees of murder in GA. No murder one, murder 2, etc. Murder is murder in GA. The 2nd degree felony charge of child neglect/cruelty is what pulls in the the murder charge which has no degree attached to it because none exist in GA.

    very confusing but yeah.

    http://www.websleuths.com/forums/sho...1#post10703261


    07-04-2014, 06:16 PM
    popsicle
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    Join DateMar 2009LocationDofCPosts11,482



    Originally Posted by tlcya
    there are no degrees of murder in GA. No murder one, murder 2, etc. Murder is murder in GA. The 2nd degree felony charge of child neglect/cruelty is what pulls in the the murder charge which has no degree attached to it because none exist in GA.

    very confusing but yeah.


    HB 271 amends Title 16, relating to crimes and offenses, so as to create the offense of murder in the second degree, and provides for penalties. A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.


    Signed by Governor: April 29, 2014
    Effective Date: July 1, 2014


    http://w2.georgiacourts.gov/enactedl...x.php/criminal

    http://www.websleuths.com/forums/sho...t#post10703275


    Last edited by tlcya; 07-12-2014 at 04:55 PM.
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  2. #2
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    I could see a juror(s) voting to acquit b/c they do not think someone who unintentionally leaves their child in the car (if the prosecution doesn't prove it was intentional since they apparently don't have to) should spend 30+ years behind bars. I really don't like that a prosecutor doesn't have to show a crime is premeditated to get the DP.

    IMO...If the jury has any doubt it wasn't intentional, you run the risk of an acquittal, no matter what the requirement of the charge is. There are a lot of people out there who think that parents shouldn't be punished for an accident, have sympathy for them, etc.

  3. #3
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    A lot of people I think are feeling similarly on that issue eileen.

    It is an unusual way to arrive at murder and possible death penalty. Until this case I was unfamiliar with GA law in this area. It's been enlightening.
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  4. #4
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    There was a list. Listing every time RH had a chance to remember Cooper. Does anyone remember who made it or where it might be?


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  5. #5
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    I think LindaNJ made that list IIRC. Not sure how many threads back or if it was before or after Cooper got his own forum.
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  6. #6
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    (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.

    http://www.cnn.com/2014/07/08/opinion/cevallos-hot-car-felony-murder/index.html
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  7. #7
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    Quote Originally Posted by eileenhawkeye View Post
    I could see a juror(s) voting to acquit b/c they do not think someone who unintentionally leaves their child in the car (if the prosecution doesn't prove it was intentional since they apparently don't have to) should spend 30+ years behind bars. I really don't like that a prosecutor doesn't have to show a crime is premeditated to get the DP.

    IMO...If the jury has any doubt it wasn't intentional, you run the risk of an acquittal, no matter what the requirement of the charge is. There are a lot of people out there who think that parents shouldn't be punished for an accident, have sympathy for them, etc.
    ITA

    Very, I mean very enlightening that the prosecution does not need to show/prove intent.
    Why even have a trial, just charge him and sentence.
    It's a proven fact RH was the one that caused the death of his son. I thought the whole question was accident or murder.
    What's the sense of all the news - the hype - getting public opinions - testing/retesting of cars/car seats if there's no need to prove accident/murder.



    my opinion, etc.

  8. #8
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    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.

    http://www.cnn.com/2014/07/08/opinion/cevallos-hot-car-felony-murder/index.html

    link to the the case cited in the article above (blue text is embedde link), White vs State, was appealed and the appeal was unsuccessful. The mother was found guilty of the child cruelty and neglect and murder of her daughter.

    Janice White appeals her convictions for felony murder while in the commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree, in connection with the death of her infant daughter, Daija White. For the reasons that follow, we affirm in part and vacate in part.[1]

    https://www.courtlistener.com/ga/88Uz/white-v-state/
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  9. #9
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    Quote Originally Posted by tlcya View Post
    (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.

    http://www.cnn.com/2014/07/08/opinion/cevallos-hot-car-felony-murder/index.html
    Really interesting about the felony murder charges and how it's liberally applied in GA to be an end run around to having to prove intent to kill and that most attorneys think the charges will be upped by the Grand Jury. Anyone know when the Grand Jury convenes next in Cobb County?

    There was talk about the child cruelty charges in the bond hearing with the defense attorney questioning detective Stoddard about downgrading the cruelty charges. Around 1:05:00 in the video http://www.wildabouttrial.com/one_of...video-archive/
    The cruelty charges were originally 1st degree which would mean intent to harm, but changed to 2nd degree about 5 days later. Stoddard says he doesn't think it's a downgrade, just different wording. But the defense attorney (sorry his name evades me) says 1st degree means it's willful where 2nd degree it's negligence. He then said if it's not intentional then it must be unintentional. Possibly a very good point the defense can push with a jury.

  10. #10
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    Quote Originally Posted by Ruby View Post
    ITA

    Very, I mean very enlightening that the prosecution does not need to show/prove intent.
    Why even have a trial, just charge him and sentence.
    It's a proven fact RH was the one that caused the death of his son. I thought the whole question was accident or murder.
    What's the sense of all the news - the hype - getting public opinions - testing/retesting of cars/car seats if there's no need to prove accident/murder.



    my opinion, etc.
    because it is more complex than that IMO which is why there is so much debate about these charges.

    The murder guilt hinges on the neglect charges. So when we analyse all this, we have to think about what is the burden of proof on the neglect charge. Does he have to be conscious that he is committing a neglectful act? Does he have to be aware he is doing something neglectful that could result in death?

    That is where the nitty gritty of the debate goes IMO.

    It looks as if there are those who view it like this:

    If he genuinely forgot his child was in the car but the mere act of forgetting constitutes that level of neglect then

    a) that is basically saying forgetting a child in a car is automatically always 2nd degree neglect, which in the state of GA also means you can be charged with felony murder.

    or

    b) if awareness is the burden of proof then the individual must be proven to have had that AWARENESS to be proven guilty

    Then there are others who seem to feel

    If you leave your child in the car, aware or not, forgot or knew, and that child dies, you are straight up guilty of criminal neglect and therefore also guilty of felony murder under the law as written in GA. (no a or b, just one road to travel and all roads lead to guilty - I fall into this school )
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  11. #11
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    The State of Georgia has charged JRH with felony murder 16-5-1 (c) and second degree child cruelty 16-5-70 (c). Here are the statutes as written. First is felony murder.

    2010 Georgia Code
    TITLE 16 - CRIMES AND OFFENSES
    CHAPTER 5 - CRIMES AGAINST THE PERSON
    ARTICLE 1 - HOMICIDE
    16-5-1 - Murder; felony murder
    O.C.G.A. 16-5-1 (2010)
    16-5-1. Murder; felony murder

    (c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.
    And here is 2nd degree child cruelty.


    2010 Georgia Code
    TITLE 16 - CRIMES AND OFFENSES
    CHAPTER 5 - CRIMES AGAINST THE PERSON
    ARTICLE 5 - CRUELTY TO CHILDREN
    16-5-70 - Cruelty to children
    O.C.G.A. 16-5-70 (2010)
    16-5-70. Cruelty to children

    (c) Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.
    It's clear that the state is using the 2nd degree child cruelty charge to get the felony murder charge against JRH. So that means the state will have to show criminal negligence on JRH's behalf.

    Will the State of Georgia be able to do that? I think they may but I'm not sure. I have doubts about how well prosecutors do during jury selection in cases like this.

    http://www.hlntv.com/sites/default/files/14w5669-2.pdf

    http://law.justia.com/codes/georgia/...icle-1/16-5-1/

    http://law.justia.com/codes/georgia/...cle-5/16-5-70/

  12. #12
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    I'm taking a look at what crimminal negligence means in the State of Georgia. I found this.

    Act of criminal negligence, not an intentional act. Lindsey v. State, 262 Ga. 665 (1993). 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 of the probable effects of such instrumentality upon others likely to be affected thereby. Criminal negligence is something more than ordinary negligence. Criminal negligence is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result. Bohannon v. State, 230 Ga. App. 829 (1998).
    So it doesn't mean an intentional act but it implies knowledge of probable consequences and also willful or wanton disregard of the probable effects. To me, for the state to prove criminal negligence, which is required for the 2nd degree child cruelty and then the felony murder to be applied, a willful or wanton disregard must be proven.

    To me a willful or wanton disregard for the death of a child is a deliberate and unprovoked act. I'm not sure how that could happen unintentionally. It seems that intent would be involved somehow.

    How will a jury see this?

    http://www.avvo.com/legal-guides/ugc...uct-in-georgia

  13. #13
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    exactly. It all seems to end with, while premeditation and malice need not be present, willful and wanton must, which ends up meaning, RH, his thought process, his awareness, his forgetting or not forgetting are all very very important to the outcome of this case.

    so maybe at some point gitana or one of our other verifieds will weigh in on these very subtle (IMO) differences and how they translate into what we may see from each side at trial.
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  14. #14
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    Quote Originally Posted by RANCH View Post
    I'm taking a look at what crimminal negligence means in the State of Georgia. I found this.

    Act of criminal negligence, not an intentional act. Lindsey v. State, 262 Ga. 665 (1993). 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 of the probable effects of such instrumentality upon others likely to be affected thereby. Criminal negligence is something more than ordinary negligence. Criminal negligence is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result. Bohannon v. State, 230 Ga. App. 829 (1998).

    So it doesn't mean an intentional act but it implies knowledge of probable consequences and also willful or wanton disregard of the probable effects. To me, for the state to prove criminal negligence, which is required for the 2nd degree child cruelty and then the felony murder to be applied, a willful or wanton disregard must be proven.

    To me a willful or wanton disregard for the death of a child is a deliberate and unprovoked act. I'm not sure how that could happen unintentionally. It seems that intent would be involved somehow.

    How will a jury see this?

    http://www.avvo.com/legal-guides/ugc...uct-in-georgia
    Thanks for this!
    Now I think I see what Stoddard was talking about in the hearing regarding the original charge of cruelty to a child 1st degree being changed to 2nd degree. He said he didn't believe it was downgrading the charge, but rather because of a wording difference.

    So 1st degree cruelty states this:
    (a) A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized. (from the link Ranch provided http://law.justia.com/codes/georgia/...cle-5/16-5-70/)

    Stoddard said at first they thought cause of death would be from dehydration which would fit with the above of depriving the child of necessary sustenance, (water). When the ME reported the cause of death was hyperthermia, they decided the cause was negligence (leaving Cooper in the car).

    For the criminal negligence that 2nd degree requires, the prosecution can argue that RH had knowledge of the probable consequences of leaving Cooper in the car from the veterinarian video about animals left in a vehicle that he watched twice. As to the willful or wanton disregard to the consequences of such act, I don't know. Is that the same as intent? It sounds like it to me, but not sure.

  15. #15
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    The thanks button was not enough for tlcya and RANCH

    Thank you both for explaining - it helps me to understand what the charges mean, the issues that are important, and also that I rushed to conclusion on some of my posts.

    So, basically back to the beginning that intent does need to be there - semantics definitely plays a role, and they'll be splitting hairs for sure.
    Premeditation/malice, willful/wanton to the laymen (me) means about the same. In a court of law difference of life and death.

    Have to get back to the details.

    my opinion, etc.,

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