Editor’s note: Darren Kavinoky is a criminal defense attorney at the Kavinoky Law Firm in California. He is the creator and host of “Deadly Sins” on Investigation Discovery, a TV legal analyst and keynote speaker. He is on Twitter and Facebook.
A toddler is dead. His parent, the person entrusted with his very wellbeing, is charged with murder. Is Justin Ross Harris, the "Hot Car Dad," the next Casey Anthony? Based on pretrial interest in the case, my prediction is that this trial (and it will go to trial) will garner Casey Anthony-like worldwide fascination -- and for good reason.
This case has all the makings of a captivating courtroom drama: An innocent, blameless victim; questionable behavior by the accused (including racy " sexting" activity!); and what is considered by many a plausible defense of an accident, committed by a man his friends and family describe as a loving dad. The battle lines are being drawn even as I write.
And remember: The real battle in most criminal cases is not what the facts are; the real battle is what each side wants to make those facts mean.
Watch more: Justin Ross Harris to face Georgia grand jury
So while we can expect the prosecution to use a salacious fact like Harris "sexting" on the day of his son's horrible death as evidence of motive, the defense may embrace that same fact and argue that while his conduct was unsavory, the jury should instead consider it as evidence that at the time he got out of the car and left his son that he was merely distracted by the prospect of this impending activity, and use that same fact to support their position that this death was simply an accident.
Likewise, the prosecution will undoubtedly point to the timeline, and emphasize that the trip from Chick-fil-A to work took less than five minutes, making it unlikely that Harris would forget his son was in the car so quickly. But we can anticipate from the arguments at the probable cause hearing the defense will argue that the way the brain functions is that forgetting can happen in a moment, that this time frame means nothing (and expect that there will be an expert in memory functioning testifying on this point).
The prosecution will use a fact like Harris expressing concern for himself in the interview room with his wife as consciousness of guilt; the defense will likely position this same fact as natural for an innocent man, wrongfully accused in the face of a horrible, yet accidental tragedy.
What will be a little tougher for the defense will be the statement Harris made to the lady he was sexting with. According to testimony at the probable cause hearing, when the target of his affections asked if he had a conscience, Harris replied, "Nope." While the defense may love to limit this lack of conscience to the context of a married man sexting, this may be a tough sell.
Watch more: Father in hot car death cries at hearing
So what else is to come? Based on what we know now, the sexting partner is a key witness, so I expect her on the stand, and maybe a tell-all book to follow.
Right now, Harris is charged with second-degree cruelty to a child and felony murder (based on that cruelty). I wouldn't be surprised if this is upgraded as more evidence emergess, since more and more points to Harris using that hot car as an instrument of harm every bit as deadly as a gun or knife. This could mean an additional charge of first-degree murder, with felony murder as a fallback.
Read more: Hot car death attention shifts to mom
And the wildcard is the possibility of enlarging the number of defendants to include accusing the toddler’s mom of being in on it. Her comment to Justin Ross Harris in the post-death interview room of "Did you say too much?" and her own admission of questionable Internet searches could produce a co-defendant. If this proves true, expect a deal with the less-culpable co-defendant to get to the real wrongdoer.
All of these twists and turns remind me that what happens in our nation's courtrooms is really the ultimate in reality television. At the end of the day, that's why this case will be compared to Casey Anthony -- the ultimate in real-life human drama.