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A Michigan circuit court judge on Tuesday said she was appointing independent counsel to watch over the legal interests of James Crumbley and Jennifer Crumbley, the parents of alleged high school murderer Ethan Crumbley.
Both of the parents are represented by Shannon Smith and Mariell Lehman, both of whom practice law at the same law firm.
The parents have vociferously indicated in multiple lower court proceedings that they were waiving any potential conflicts of interest which might arise from the joint representation. Attorneys Smith and Lehman said they believed they could handle the proceedings without conflict requiring separate counsel.
Regardless of those hearty assertions, joint representations can become incredibly thorny, Oakland County Circuit Judge Cheryl Matthews noted while citing several Michigan ethics rules.
One such rule, Criminal Procedure Rule 6.005, reads in part as follows:
(F) Multiple Representation. When two or more indigent defendants are jointly charged with an offense or offenses or their cases are otherwise joined, the local indigent criminal defense system must appoint separate lawyers unassociated in the practice of law for each defendant. Whenever two or more defendants who have been jointly charged or whose cases have been joined are represented by the same retained lawyer or lawyers associated in the practice of law, the court must inquire into the potential for a conflict of interest that might jeopardize the right of each defendant to the undivided loyalty of the lawyer. The court may not permit the joint representation unless:
(1) the lawyer or lawyers state on the record the reasons for believing that joint representation in all probability will not cause a conflict of interests;
(2) the defendants state on the record after the court’s inquiry and the lawyer’s statement, that they desire to proceed with the same lawyer; and
(3) the court finds on the record that joint representation in all probability will not cause a conflict of interest and states its reasons for the finding.
The judge also cited Michigan Rule of Professional Conduct 3.7 and said she would not allow an attorney to testify in the matter should a conflict arise at any point during the proceeding.
“The court is appointing independent counsel for each defendant,” Judge Matthews announced. “The appointment of counsel will not be as a substitute for the defendants’ current counsel of choice or to report back to this Court. The purpose of independent counsel will be for the limited purpose of advising each defendant in the matter with regard to joint representation and the potential for conflicts of interest.”
The judge said she wanted a written waiver from each defendant for future proceedings.
“I’m concerned that at some point — today, tomorrow, next week, a month from now, four months from now — that something could happen to cause a conflict that could damage your position, Mr. Crumbley, or your position, Mrs. Crumbley, and I have an obligation to protect your rights,” Judge Matthews said. “And I’m concerned, as we sit here right now, there could be a myriad of things that are incompatible. So, I’m sending appointed counsel, independent counsel . . . they’re going to talk to you about conflict of interest, potential conflict of interest, and what would be in your best interest. So, I would urge you to listen to them and ask them any questions you might have.”
The judge told both defendants she wanted to “avoid your rights being implicated in a negative way” and “avoid having to recreate or go backwards” in case proceedings. She noted that a conflict, should one arise during a trial, could result in a mistrial.
Though she didn’t directly say it, the judge appeared worried that one parent could turn on the another or try to adopt a defense strategy which might attempt to lay the blame more squarely with the other at some point in the proceeding — a tactic which does from time to time happen among defendants in criminal matters. Attorneys of the same firm cannot ethically adopt adverse positions given their connection to one another. This basic ethics rule is why most criminal defendants, even when charged with the same crime, have different lawyers of different firms.
The defense said it wished to confer off the record (e.g., privately with their clients) about the precise language of the waiver before moving forward with it.
Their 15-year-old son Ethan Crumbley is charged with four counts of first-degree premeditated murder, seven counts of assault, and 12 weapons offenses in connection with a deadly attack that left Hana St. Juliana, 14, Tate Myre, 16, Madisyn Baldwin, 17, and Justin Shilling, 17, dead. Ethan Crumbley is also charged with terrorism.
The brief Thursday proceeding concluded after about ten minutes.
Watch the full proceeding below:
[image via YouTube screengrab/WZZM-TV]
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