Circumstances of Parents’ Arrest in Michigan School-Shooting Case Don’t Prove Awareness of Guilt

T o pick up where we left off late last week, James and Jennifer Crumbley were apprehended in the wee hours Saturday morning, apparently hiding out in a warehouse in Detroit.

Obviously, this undercuts — though it does not destroy — the claims of their counsel that they were of a mind to surrender voluntarily to police upon learning that prosecutors in Oakland County, Mich., had charged them with four counts of involuntary manslaughter in connection with their son Ethan’s alleged (we have to say “alleged” at this point) murder of four students and wounding of seven people, including a teacher, at Oxford High School last week.

I believe the insistence of law-enforcement officials and commentators that the parents must have been fleeing, while colorable, is less than persuasive. Much, for example, is made of the fact that they were found close to the Canadian border. But if the plan is to escape to Canada, then you escape to Canada. You don’t hide in a warehouse that you need help to get into in the dead of night. Practically speaking, a plan to escape to Canada would have been untenable. The authorities in Michigan would undoubtedly have alerted Canadian law-enforcement agencies about the issuance of arrest warrants for the Crumbleys and the fact that they were at large. The Crumbleys had to know they would have run a greater risk of being arrested upon encountering Canadian or American police at the border.

Moreover, while this “manhunt” is being described as if it were notable for its vigor, in reality, only a few hours elapsed from the announcement of the charges and the arrest of the Crumbleys — a time during which they were trying to grapple with the horrific news, the unimaginable devastation of the parents of the dead children, and the near-certainty that their 15-year-old son will not only never come home again but will spend most if not all of the rest of his life institutionalized.

No, they shouldn’t have been hiding out in a warehouse. Yet it is understandable that they would have left their residence after news broke connecting their son to a horrific mass-shooting at the school. It is not unreasonable to believe they were distraught beyond our imagination, they needed some time and space to process what had happened, and they knew their home was not suitable and safe for that purpose.

As I noted Friday, there should have been no rush to charge the parents on what are very shaky legal grounds. And in fact, I believe that the case against them is untenable. The prosecutors not only rushed to file charges late Friday but then immediately acted as if the parents had absconded. In the interim, the parents had retained counsel to defend themselves, in addition to retaining a lawyer to represent their son, both of which are inconsistent with flight. The lawyers claim that they expected to arrange with the authorities to have the parents surrender for processing and presentment on the charges, which would be customary. This did not happen, they contend, because the county attorney is committed to fueling the media circus that has attached itself to the case.

There is much to criticize in the Crumbleys’ actions and omissions in the lead-up to their being criminally charged. That does not necessarily mean criminal charges — as opposed to significant civil lawsuits — are appropriate. It does underscore, though, that their exhibition of poor judgment in going to the warehouse Friday is not exactly a surprise. And they are already paying a steep price for it: Very high bail of $500,000 has been set for each of them, because a judge concluded that the circumstances of their apprehension raise the risk of flight. That is certainly a reasonable finding, even if there are mitigating circumstances that suggest otherwise. A court setting bail has to deal in probabilities, not certainties.

A more significant question is whether their alleged flight will be admissible as “consciousness of guilt” evidence. That is a big concern for defendants. Evidence that a person acted as if he was guilty can be powerful proof at trial. If, for example, a person suddenly and suspiciously disappears after a murder to which he is circumstantially connected, it is reasonable to conclude that he knew he had done something terrible for which he could be sentenced to many years’ imprisonment and thus sought to evade capture.

Here, the situation is different. Again, the parents were missing for only a few hours after being charged, had valid reasons not to be home, did not go far, had retained counsel to defend themselves, and may have had good reason to believe, on a Friday night, that their lawyers could arrange for them to surrender on the charges on Saturday or Monday — after all, it is their son who stands accused of acting violently, and there appears to be nothing in their history to suggest that their being at liberty posed a threat to the community.

Perhaps more significantly, consciousness-of-guilt evidence is germane when a defendant is denying factual guilt — but the Crumbleys’ defense will be more legal than factual. To be more specific, consciousness-of-guilt proof is admissible against a defendant who denies that he committed the criminal acts charged. Here, the Crumbleys are unlikely to deny the actions and omissions prosecutors allege, though they will undoubtedly try to put that conduct in broader context, as their lawyers already began doing by stressing to the court, at the bail hearing, that the gun the Crumbleys’ son allegedly used — a gun recently purchased by and registered to James Crumbley — was locked away by the parents before last week’s shooting. When defendants are conceding commission of the alleged acts, there is no reason for a court to allow prosecutors to offer evidence that the defendants were conscious of committing those acts.

Sometimes, acting guilty does not mean that you are guilty — or even that you believe you are guilty. Hiding in the warehouse to evade arrest, if that is what the Crumbleys were doing, does not necessarily show consciousness of guilt, even if it may show consciousness of being sought by police. The ultimate determination of the Crumbleys’ guilt or lack thereof will come down to a narrow legal question: Did the actions they will admit to taking amount to negligent homicide as that offense is defined by Michigan law? Their behavior on Friday night, while foolish, does not bear on that question.