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Janet Johnson quoted in article below:

Kids Who Die in Hot Cars: When It's Murder & When It's Not

by Kiri Blakeley 8/4/14 from

It seems like every other day, we hear of a child being left in a hot car to die. The circumstances are always strikingly similar. There is one parent driving the car. The parent gets distracted somehow. Perhaps the routine changes, even slightly. And then the parent goes to work, or home, or somewhere else, and simply forgets the child is there. Tragedy ensues. However, one thing can change radically, and that is whether or not the parent faces criminal charges, and what kind of charges he or she faces.

At the very least, a parent can have no charges filed against him or her, with everyone agreeing it was a terrible and tragic accident. Somewhere in the middle are child endangerment or neglect charges. On the high end are manslaughter or lesser-degree murder charges. And then you have the highest charge: first-degree murder. Justin Ross Harris faces felony murder and possibly an upgrade to murder with malice for leaving 22-month-old Cooper in the car while he went to work. Felony murder, according to CNN, is a "first-degree murder charge for an admittedly unintentional killing."

Yet prosecutors likely believe he premeditated the murder, and their case greatly hinges on Google searches he allegedly made about how long it would take a child to die in a car and the fact that while Cooper was dying, Ross Harris was sexting several women.

Another man being charged with first-degree murder is Seth Jackson of Wichita, Kansas. Prosecutors agree he did not intend to kill 10-month-old foster child Anna (the usual bar for that charge). But because Jackson was allegedly smoking pot while his foster daughter roasted to death in the car, he was hit with the highest murder charge because the death occurred during a felony, which was "aggravated endangering of a child," i.e., he was consuming illegal drugs while his child was in his care. (If this had been Colorado, he'd probably have had better luck.)

About 717 children have died of heatstroke in cars since 1990. There have been 20 deaths so far this year. And another study found that 60 percent of parents or caregivers will be criminally charged in cases where children died of heatstroke. About 30 percent faced no charges. (Parents from blue-collar families and those who were unemployed were much more likely to be prosecuted in cases of children dying from hypothermia in cars, Jennifer Collins concluded in her 2006 study "Crime and Parenthood.")

"Prosecutors have so much discretion," says Janet Johnson, a criminal defense attorney in Florida and frequent law commentator on news shows. "If they want to charge you, they'll find a way to do it. If they find you sympathetic, they'll think a jury might sympathize with you and not charge you, but also, they're human. It helps if they can relate to you."

Hence why a woman who left her children in a hot car in Oakland, California, last month wasn't charged when authorities thought she'd gone into a casino to use the bathroom. But once it became clear she was gambling, she was hit with jail time. (These particular children did not die.)

And it's unlikely that Hurricane, Utah, mom April Suwyn will be charged with murder in the death of 11-month-old Skyah, whom she forgot when she ran into the house to use the bathroom after a morning routine change on August 1. However, if further information comes out that throws doubt on April's story or character, that could change. (So far no charges have been filed.)

"There's a higher level of scrutiny if you don't have good character," says Johnson.

Indeed, while Justin Ross Harris's sexting of several women (including at least one underage teen) while Cooper roasted in the car may not prove he's a child killer, it doesn't say much about his character, and that is definitely not going to help his case.

If you are unlucky enough to forget your child in this manner, you could find yourself staring at the bars of a prison cell no matter if it was a tragic accident -- and the only thing that might save you is your character.

Such was likely the case with Lyn Balfour, the Army Reservist who was originally charged with second-degree murder and child neglect and felony abuse after she forgot her 9-month-old son, Bryce, in the car after a particularly exhausting week and stressful morning at work. The neglect and child abuse charges were dropped and the second-degree murder charge lessened to involuntary manslaughter. Then she was found not guilty.

Balfour's criminal case no doubt benefited from the fact that she was an upstanding citizen, veteran of the Army, and was at work that day doing her job -- not sexting or gambling.

Says Johnson: "If you look like you're a great mom every day of the week, and the police don't look at your cellphone and see a completely different picture, then you're likely to get the benefit of the doubt."


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