James and Jennifer Crumbley, parents of the accused Michigan school shooter Ethan Crumbley, face charges of involuntary manslaughter and have been jailed on $500,000 bond since their arrest late last year following the Nov. 30 attack at Oxford High School. Prosecutors allege they made a gun accessible to their son and didn’t take him out of school when concerns were raised before the shooting occurred.
For the victims’ families, any gesture of love by the defendants is likely a slap in the face. That’s a good enough reason to put a stop to the nonverbal signals in court.
As Judge Julie A. Nicholson considers pretrial motions before a jury is seated, prosecutors have signaled they are going all out in this case. On Tuesday, Nicholson granted the prosecutors’ requestto order the Crumbleys to refrain from making affectionate gestures toward each other in court. The married couple allegedly mouthed the words “I love you” during hearings, according to a motion filed by the prosecutors. (The Crumbleys have pleaded not guilty to the charges, as has their son.)
The U.S. Supreme Court long ago held that prejudicial publicity, combined with a court’s failure to control disruptive influences during trial, could deprive a defendant of his or her constitutional right to a fair trial. In other words, if convicted, the Crumbleys might argue on appeal that the judge failed to properly control behavior in the courtroom.
The prosecution might be so bold as to argue that the state is looking to bar this nonverbal communication … for the Crumbleys’ own good. In reality, prosecutors are always happy to safeguard a defendant’s constitutional rights when doing so is likely to make a conviction harder to appeal. If there are no courtroom disruptions at all, it’s harder for convicted defendants to argue that a circus-like atmosphere denied them a fair trial.
In Michigan, as in most courts, the trial judge has the authority to maintain discipline and decorum in the court. The court can punish “insolent behavior directly tending to interrupt the proceeding or impair the respect due to the court’s authority.”
But blowing kisses? Mouthing “I love you”? Do those gestures interrupt the proceeding? Do they disrupt the courtroom? Is there merit to the state’s “Motion to Prevent Kissy-Faces” — or whatever the document is being called?
The instinctual answer for many is yes — because these people are accused of being responsible for a school shooting, the most horrific of crimes. It’s almost impossible to separate the legal issues from the negative feelings many surely have for these defendants.
The prosecutors almost surely have an emotional motivation as well. The first question to ask of them is whether the prosecution would ever bother to file such a motion if the case involved a serious but not notorious crime. And then, have these prosecutors ever filed such a motion before? If the answers to these questions are no, it indicates the prosecutors are giving this case special attention: They are bringing their A-game.
But no one should blame them; the world is watching. Their legal argument is a relatively newish (but not unprecedented) approach: parental criminal liability for a child’s awful alleged crimes. Trials are already winner-takes-all events for prosecutors — trying infamous defendants just raises the stakes. You probably would not see prosecutors make this motion in a misdemeanor DUI case, because it wouldn’t be worth their valuable time.
Of course, someone blowing kisses from the witness stand is unacceptable, because it would be unacceptably distracting during the substantive part of the hearing. But before the judge has taken the bench, or after court is in recess, it’s less clear-cut.
Nicholson, however, determined Tuesday that the prosecutors’ contention had merit. She told the Crumbleys they are “not to have communication with each other” during in-person court proceedings. “It’s disruptive. It’s disrespectful,” Nicholson said in court. It’s certainly her prerogative, as it’s her duty to keep order in the courtroom.
But the prosecutors know the real merit of this motion, and the judge’s order, is not something that will decide the trial. In fact, it won’t have any substantive effect on the trial whatsoever. It’s about control. Prosecutors not only want to convict these defendants, they want them subdued during the trial — to respect the state and the court by remaining noncommunicative.
The prosecution wants to send a message: If we are trying to hold you even indirectly responsible for a school shooting, we will fight you on every issue, right up to your conviction and sentencing. That includes blowing kisses at each other. It’s probably a good message.
In all likelihood, these married co-defendants only see each other in person when there are court dates. The rest of the time they are in jail, segregated by gender. No text messaging. No FaceTime. No communication, except maybe through attorneys and letters. (And you better believe those letters are scrutinized by law enforcement, so they are hardly a convenient way to communicate.) So should we show these defendants no quarter? Or let some facial expressions in open court slide?
It’s not as if these defendants are shouting at each other in the middle of a jury trial. That’s the kind of thing the court needs to regulate, and it does. Right now the Crumbleys are in pretrial proceedings; there’s no jury seated. The gestures they’re accused of making are not directed to anyone else but each other, and they appear to be little more than expressions of affection — not defiance.
But for the victims’ families, any gesture of love by the defendants is likely a slap in the face. That’s a good enough reason to put a stop to the nonverbal signals in court.
