Legal experts: Accused Oxford school shooter's parents can get fair trial in Oakland County

Mike Martindale
The Detroit News

Pontiac — Despite all the news coverage and social-media speculation surrounding the involuntary manslaughter cases against the parents of the accused Oxford High School shooter, most legal experts argue James and Jennifer Crumbley can get an impartial jury and fair trial in Oakland County. 

Attorneys and law experts familiar with the case of the Crumbley parents largely agree with Oakland County Circuit Judge Cheryl Matthews, who last month rejected defense arguments that the trial be moved out of the county. They say keeping the proceedings in Oakland County presents certain but not insurmountable challenges — despite the nature of the Nov. 30 rampage in which four students were slain, and six others and a teacher were wounded.

In a filing late Monday, lawyers for James and Jennifer Crumbley asked the Michigan Court of Appeals to dismiss the case, arguing that judges abused their discretion in binding their clients over to circuit court — and that evidence regarding any knowledge of their son’s state of mind before the shooting should not have been accepted and should not be permitted at the couple's trial.

The prosecution has argued the couple had knowledge of their son’s emotional and mental problems and did not nothing to help him, instead purchasing a handgun for him that was later used in the shootings. Monday's filing by defense attorneys say there is no proof that James and Jennifer Crumbley had read their son’s journal or texts sent to a friend, which included several instances in which he complained they would not provide him with mental health counseling.

Those journal entries and texts — and reports that the Crumbleys had refused to remove their son from school as requested by officials two hours before the shootings — have been widely disseminated. But the fact that potential jurors have prior knowledge of a case should not automatically disqualify them, said Barbara O’Brien, who teaches criminal law and procedure at Michigan State University College of Law.

“Particularly in a case this high-profile,” O’Brien said of the Crumbleys’ case. “...You’d have serious concerns about a potential juror who claimed to know nothing about it.”

The trial judge has a lot of discretion to grant or deny a motion to change venue, she said.

“But if the judge denies it in a case like this, it’s essential that the court allows the lawyers a lot of latitude during "voir dire" to explore what the potential jurors have heard and any opinions they’ve formed,” O'Brien said.

Voir dire — French for “to get to the truth” — is the pretrial process in which attorneys question potential jurors in court about their knowledge and beliefs about their client or  case. Jurors are usually asked if they have beliefs or opinions that might sway their views — and if so, would they be able set them aside and decide a person’s innocence or guilt based entirely on evidence and testimony presented in court?

Attorneys are permitted an unlimited number of challenges of jurors for cause and a dozen peremptory charges — without cause — to help shape a jury.

Southfield-based attorney Geoffrey Fieger — who has defended controversial clients such as assisted-suicide pathologist Jack "Dr. Death" Kevorkian in Oakland County — said he didn't request a change of venue in high-profile cases. But to him, the case of Jennifer and James Crumbley is different.

Fieger, who currently represents two Oxford families in a federal lawsuit against Oxford Community Schools, said of the Crumbley parents: "If there ever was a case in Oakland County which deserves a change of venue, it is this one.”

“There has been massive pretrial clearly prejudicial publicity and they (the couple) have been vilified,” Fieger said. “While it makes sense to move to err on the side of a fair trial and move  it (trial) to another county or city — to Ludington, to Marquette — it's not going to happen.”

Judges rarely like to make the move, he said.

In June, Judge Matthews rejected claims by the couples' attorneys of alleged prejudicial remarks by County Prosecutor Karen McDonald, including what they termed character assassination of their clients. Prosecutors say the couple provided son Ethan, 16, with access to a gun; failed to address his mental health problems; and did not remove him from school or tell school officials he might have had a weapon during a meeting the morning of the shootings.

Despite those remarks and extensive news coverage, Matthews said lawyers had not demonstrated the jury pool had become irredeemably tainted. Nor, she said, did they demonstrate that the Crumbleys would be unable to get a fair jury trial unless the venue was changed.

Matthews noted Oakland County has a large and diverse population from which to select a jury. She said that in addition to a gag order she placed on lawyers last week, other measures were available to help identify and exclude biased jurors, including targeted questionnaires.

Oakland County Court Administrator Kevin Oeffner confirmed that Matthews has suggested that defense attorneys and the prosecution meet jointly on the creation of a juror questionnaire. These traditionally consist of questions both sides can agree on which may automatically prompt exclusion of a potential juror without resorting to trial challenges and expedite facilitate the selection process.

In some cases, the process can take weeks. Judges sometimes request an especially large pool of jurors in anticipation that many will be excluded by attorneys.

Past trials in Oakland County have had 100-200 potential jurors on hand to make sure there were enough to seat. 

In an Oakland County murder trial earlier this year involving a Muslim teenager who prosecutors said smothered his mother and then threw her out of a second-story window to make it look like an accident, a judge requested a jury pool of 100. That case garnered a tiny fraction of the attention the Oxford school shooting has received.

Attorney David Moran, co-director of the Innocence Project at the University of Michigan, which focuses on overturning convictions, said judges in high-profile cases need to take special steps, including screening jurors for bias. Moran pointed out that despite what he called “massive media attention in the Boston Marathon bombing," the trial remained in Boston.

This wouldn't be the first high-profile jury trial in Oakland County.

►Dr. Kevorkian made international news in assisting 130 suicides by his count. He was acquitted in three widely watched trials between May 1994 and June 1997 with the help of an attorney; a fourth ended in a mistrial. In 1999, Kevorkian was eventually convicted of second-degree murder and served eight years of a 10- to 25-year prison sentence.

►Nathaniel Abraham was prosecuted and convicted for a 1997 murder at age 11 for shooting a stranger to death outside a Pontiac party store. Investigators said he already had at least 22 police contacts for arson, assaults, break-ins, thefts and threatening children and adults alike with a steel pipe. He was released from a juvenile detention facility in 2007 at age 21 and has since had a couple of brushes with the law.

►Jonathan Schmitz killed acquaintance Scott Amedure with a shotgun in 1995, three days after a taping of a "Jenny Jones Show" episode during which Amedure confessed to a secret same-sex crush on Schmitz. Schmitz — who due to a legal technicality was tried twice for the same crime with similar results — was released from prison in August 2017 after serving 22 years of a 25- to 50-year sentence for second-degree murder.  Amedure’s family won a $29.3 million verdict against the tabloid talk show for ambushing Schmitz, who thought he was going to meet a female admirer; a Michigan appeals court later overturned the ruling.

Each of the trials and others received heavy media play across the nation. Lawyers  would have been hard-pressed to find Oakland County residents who hadn’t heard details about the deaths. But that didn't automatically exclude them from sitting in the jury box and delivering a verdict.

Attorney Fieger — who defended both Kevorkian and Abraham, and was involved in the "Jenny Jones" civil case — said he never requested a change of venue in these or other cases for a couple reasons.

“Strategically, I never wanted one,” Fieger said. “It suited my purposes for those trials not to be moved. But secondly, judges very rarely permit a change of venue. That would mean they would have to travel to some other jurisdiction. And they don’t like that.”

Fieger described the jury-selection system as “imperfect.”

“You can have jurors lie about not reaching an opinion on a case or even insisting they are able to set aside preconceptions,” Fieger said. “That doesn’t mean they can or will. People are biased. People have personal agendas. And they will cover them up. You have to be very careful about weeding out the biased jurors.”

But Robert Sedler, a Wayne State University Law School professor, said moving the trial elsewhere in the state wouldn't make much difference.

“In today's world, with multimedia, the internet, Facebook, etc., the information about the Oxford killings is spread far and wide," he said. "Moving the trial to another venue would not affect the extent of pretrial publicity."

“There will be a large jury pool, and the judge will find that an impartial jury has been selected,” said Sedler, who specializes in constitutional law. “For these reasons, claims of prejudicial pretrial publicity and improper prosecutorial statements are not viable.”

Oakland University criminologist Daniel Kennedy said a change of venue is not easily granted, especially in cases with national publicity.

“After all, where in the U.S. would one not be exposed to the national publicity which accompanies such extreme cases of criminal conduct as mass murder at a school?" Kennedy asked.

"Then, of course, there are the practical matters of access to witnesses, superior knowledge of local realities available only to jurisdiction residents, different administrative rules by jurisdictions, jury sequestration in foreign jurisdictions, tradition of trial by one's peers in his own community rather than somewhere else in the country..."

Judge James M. Biernat has handled several high-profile cases as both a prosecutor and a judge in Macomb County Circuit Court.

Biernat said jurors in the 2007 murder trial of Stephen Grant were required to complete a 25-page questionnaire regarding their prior knowledge and beliefs in an effort to “streamline” the selection process. Grant was convicted of second-degree murder for strangling his wife, Tara, in the bedroom of their Washington Township home and then dismembering her body.

Oakland County Court Administrator Oeffner said potential jurors typically receive notification of jury duty about five weeks before a trial is to begin. In the James and Jennifer Crumbley case, which has an Oct. 24 trial date, they would be notified of jury duty in September. The county’s jury assembly room, where jurors stay temporarily before being called to a specific court, can hold about 250 jurors at a time.

mmartindale@detroitnews.com

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