Legal expert: Juror’s deciding factor to convict Crumbley indicates major jury error

Tuesday’s guilty verdicts for Jennifer Crumbley — the mother of school shooter Ethan Crumbley — have generated plenty of questions about possible missteps in the trial, and what’s next for her and her husband, James Crumbley, scheduled to face his own jury next month in Oakland County.

Legal expert and Cooley Law Professor Jeffrey Swartz on Wednesday shared his insights with MediaNews Group on:

• The maximum sentence Judge Cheryl Matthews can impose on Jennifer Crumbley when she sentences her April 9 — which is much lower than some may expect

• Post-trial comment he says raises a red flag on the verdict

• Possible judicial error

• The likelihood of a plea deal for James Crumbley, and expectations that his attorney is will renew a request to have his case heard elsewhere

Attorneys for the Crumbley parents and prosecutors are barred from speaking with the media about the cases due to a gag order imposed by Matthews in 2022.

‘Single event’ max sentence

Contrary to some media reports that Jennifer Crumbley faces up to 15 years in prison and a $7,500 fine on each of the four charges — meaning up to 60 years in prison and fines up to $30,000 — that is false, Swartz said.

Rather, she can’t be sentenced to more than 15 years behind bars, he said. State law considers the shooting as a single event, Swartz explained, despite four lives lost and four convictions imposed upon her.

“You can’t stack he said.

Sentencing guidelines will probably be six to eight years in prison, but that will go up because of the multiple offenses, he said. Yet, it’s still a single offense, by law.

Swartz predicts Jennifer Crumbley will be sentenced to 10 to 15 years in prison, with jail credit of approximately two and a-half years for time served in the Oakland County Jail.

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Red flag juror comment

Swartz said a juror’s comment after the trial that the deciding factor was Jennifer Crumbley being the last adult to handle the firearm before her son took it to school and carried out the mass shooting signals a major problem because no evidence was presented to indicate that. Rather, Swarz said, it shows “made up testimony” — and not following the judge’s instructions to rely only on what was presented in trial.

“That’s making up evidence, or inferring it,” Swartz said, and potential juror misconduct which could bode well for the defense on appeal.

He said another possible argument is the jury may not have been “fully instructed” prior to deliberations.

Jennifer Crumbley is certain to appeal her conviction, Swartz said, and will likely include purported errors made by the judge. He predicts the case will ultimately be decided by the Michigan Supreme Court.

Judicial missteps?

Further looking back on the Jennifer Crumbley trial, which concluded Feb. 2 after nearly seven full days of testimony, Swartz was critical of a number of rulings by Matthews. Primarily was allowing the prosecution team — Oakland County Prosecutor Karen McDonald and assistant prosecutor Marc Keast — to present a graphic and disturbing surveillance video of Ethan Crumbley’s slaughter. Swartz said it was the centerpiece for the prosecution, shown early in the trial to stir up emotion and anger in the jury, and shouldn’t have been permitted as “its prejudicial value far outweighed its probative value.” Probative evidence is used to prove something, and it was already known that Ethan Crumbley carried out the mass shooting, Swartz said. The video does nothing to prove charges against his mother, he added.

Evidence about Jennifer Crumbley’s horse hobby and extramarital affair are examples of evidence that was unnecessary to present, he added. (Testimony about Jennifer Crumbley’s former love interest had initially been ruled inadmissible, but that changed midway through his testimony as agreed to by the defense and prosecution.) Both were used as “character assassinations,” in Swartz’s opinion, to further enrage jurors — yet veered away from the actual charges against Jennifer Crumbley.

Swartz also believes the judge was in the wrong by leaving jurors in the courtroom while the lawyers argued over hearsay and other evidence. Such arguments should have been done outside the jury’s presence, he said, but since they weren’t it gave an unfair, “free hand” to the prosecution.

James Crumbley’s case

The trial of James Crumbley — Ethan Crumbley’s father — is scheduled to get underway in less than four weeks, and Swartz said defense attorney Mariell Lehman will “absolutely” re-file a motion to have it moved from Oakland County, alleging a prejudiced pool due to Jennifer Crumbley’s convictions will mean he won’t get a fair trial.

Lehman and Jennifer Crumbley’s attorney, Shannon Smith, sought a change in venue nearly two years ago, but the judge denied it.

Swartz said Matthews is likely to allow jury selection to begin in her courtroom prior to ruling on the request. As she did when Jennifer Crumbley’s jury was being selected a couple weeks ago, the judge will ask potential jurors if they can put aside anything they already know about the case and decide on guilt or innocence from evidence presented during the trial, Swartz said. But Lehman will “bore into” their answers — in an effort to convince the judge that a new jurisdiction is warranted.

Swartz believes Matthews will let the process of questioning potential jurors in the courtroom to begin, but if a jury isn’t selected within a week she’ll be looking closer at moving it. Should Matthews agree to have the trial heard elsewhere, Swartz predicts it will be to Grand Rapids because its demographics are very similar to that of Oakland County’s.

Swartz also doesn’t expect James Crumbley to opt out of trial and enter a plea — unless he’s offered a sentence of just a few years on just one charge and the other three dismissed, and the sentence is guaranteed by the judge.

That’s not going to happen, Swartz said. The prosecution, in the unlikely event that it mulled such a deal, would want agreement from the victims’ families — which they’d never get, he said.

Ethan Crumbley, now 17, is serving a sentence of life in prison without parole. His lawyers say he’ll appeal.