There can be no doubt that America is in the midst of a protracted epidemic of mass shootings. Over the past decade, barely a month goes by where we are not treated to horrific headlines from some type of shooting where multiple people are killed. 

A mass shooting in the United States is defined as an incident where four or more people are shot, wounded, or killed in a single event, not including the shooter. On November 30, 2021, four students were killed by another student at Oxford High School in Oakland County, MIchigan. 

The case against Jennifer Crumbley, Mother of the Oxford High School shooter, was submitted to an Oakland County jury last Friday. The shooter's father is scheduled for trial in March. In this pair of truly groundbreaking cases, the shooter's parents were each charged with four counts of involuntary manslaughter. Their son has already pled guilty to four counts of first degree murder and was sentenced as an adult to life without the possibility of parole. 

Groundbreaking Case; Complicated and Unusual Circumstances

America has become accustomed to mass shootings; we've become numb to these frequent tragic events and their painful aftermath. Congress cannot pass effective gun control measures and, even if they did, our Second Amendment right to bear arms is a foundational bar to comprehensive gun regulation. 

Mass shootings usually end with the shooter taking his or her own life, or being charged with multiple counts of murder and other capital felonies. In Michigan, a capital felony is any crime where life imprisonment is a potential sentence upon conviction. 

Mental illness is highly correlated with mass shootings; a very high percentage of mass shooters have some form of acute mental illness. The Crumbley case is no different.

The Oxford High School shooting was the first mass shooting -according to the above referenced definition- in Oakland County, Michigan. The case has some very unusual factual aspects. 

First, following the shooting, the Oakland County Sheriff attempted to locate the shooter's parents but were unable to do so because, as it turned out, they went on the lam in Detroit. As a result, the Oakland County Sheriff scrambled a state-wide manhunt for James and Jennifer Crumbley, locating them cowering in a warehouse in the 313.

Second, the Crumbleys allegedly purchased the Sig Sauer 9 mm used in the shooting rampage for their son as a Christmas gift, although he was not elibigle to legally own or possess a gun due to his minority. Jennifer Crumbley testified in her own defense; always a highly risky prospect. She testified that she helped her son research and purchase the weapon.

Third, any time an attorney allows her client to testify, evidentiary doors often get opened that damage the defendant on cross examination. In this case, Jennifer Crumbley testified about her son's text communications about ghosts and demons; trying to explain it all away and to justify why she neglected to get her son professional help. 

The jury heard evidence that Jennifer thought her son was "weird"; that his only hobby involved shooting guns; that they, as a family, made trips to the shooting range; that she researched mental illness on the eve of her son's shooting rampage, but never took him to a professional or even thought he had a mential illness. 

On and on it goes. No wonder the Oakland County Prosecutor believes she can convict on a manslaughter theory. Technically, the prosecutor tried the case under two separate and distinct manslaughter theories; more on that below. 

To be fair, national headlines and publicity notwithstanding, the prosecutor had to bring these charges. Under such facts, not to do so would be political suicide. Nor could she have extended the Crumbleys any plea offer; also political suicide. Karen McDonald had to go to a jury trial in this case. In Michigan, county prosecutors are up for election every four years. In the midst of America's mass shooting epidemic, lack of parental supervision is a legitimate theory to assign culpability in some cases. 

In some ways, the Crumbleys are in a similar liability position as the parent of an infant or toddler who staggers into a room with a loaded weapon and shoots someone. We've seen dozens of such cases across the country. 

Jury Instructions

In criminal cases, there are a set of standard jury instructions that set forth some of the basic procedural and substantive concepts involved in our criminal justice system. They are standard to the extent that they are read to juries in every criminal case. There are also special jury instructions that cover some of the unique circumstances of a particular case, like the case of the Crumbley parents.

The Oakland County jury was charged with the following instructions for involuntary manslaughter. The jury instructions, read to the jury by Oakland County Circuit Judge Cheryl Matthews, included two separate theories of manslaughter; one involving the legal duty of due care contained within the concept of neglegence, the other involving gross neglegence. 

Regarding the gross negligence theory, Judge Matthews charged the jury that the Oakland County Prosecutor had the burden to prove each of the following two elements beyond a reasonable doubt, which is the highest evidentiary burden in Michigan:

• First, that the defendant caused the death of the student(s), that is, that the student(s) died as a result of storing a firearm and its ammunition, so as to allow access to the firearm and its ammunition by her minor child; and 

• Second, in doing the act that caused the student's death, the defendant acted in a grossly negligent manner.

These instructions were repeated for each of the four deceased Oxford High School students. 

Regarding the ordinary negligence theory, a special jury instruction was fashioned and read to the jury:

The defendant is charged with the crime of involuntary manslaughter resulting from the failure to perform a legal duty. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

• First, that the defendant had a legal duty to the decedent. The legal duty here is one imposed by law. In Michigan, a parent has the duty to exercise the duty of reasonable care to control their minor child so as to prevent the minor child from harming others or prevent the minor child from conducting themselves in a way that creates an unreasonable risk of bodily harm to others. This duty arises when both of the following are true: a) the parent knows or has reason to know that they have the ability to control their minor child; and b) the parent knows the necessity and opportunity to exercise such control.

• Second, that the defendant knew of the facts that gave rise to the duty.

• Third, that the defendant neglected or refused to perform that duty and that her failure to perform it was grossly negligent to human life.

• Fourth, that the death of the student(s) was directly caused by defendant's failure to perform this duty, that is, that the student(s) died as a result of the defendant's failure to exercise reasonable care to control her minor child so as to prevent the minor child from intentionally harming others or the minor child from so conducting himself so as to create an unreasonable risk of bodily harm to others when the defendant knew she had the ability to control her minor child and knew of the necessity and opportunity to do so. 

The jury was also instructed that the shooter's act of shooting was reasonably foreseeable; they were instucted that either or both of the prosecutor's theories were sufficient to convict the defendant. Because one of the prosecutor's witnesses qualified as an expert in computer forensics, the jury was instucted on consideration of expert witness testimony; that they did not have to believe the expert's opinion but that they needed to decide how much weight to give to such testimony. 

Because this is truly a momentus case under the intense scrutiny of our national media, the jury could be out for several days considering the complex jury instuctions. 

Involuntary Manslaughter Law in Michigan

Involuntary manslaughter is a 15-year felony meaning that if convicted, Jennifer Crumbley faces up to 15-years in a Michigan Department of Corrections prison. Normally, defendants without significant prior felony convictions do not receive the maximum sentence. 

But this is not a normal case; this is a high-profile case that has the attention of the entire nation because it is believed to be the first time the parents of a mass shooter have been charged with manslaughter. 

Unlike voluntary manslaughter, involuntary manslaughter does not require establishing an intent to kill the victims. Involuntary manslaughter is highly circumstance dependent. The Michigan Supreme Court has described it as:

Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty. 

This definition from our common law, of course, ties into the jury instructions above. Clear as mud, right?

An average juror, understandibly, may have some difficulty keeping the concepts straight. Judge Matthews did instruct the Crumbley jury that they could convict Jennifer Crumbley if they were convinced of either of the prosecutor's theories of culpability, i.e. the gross negligence theory or the breach of parental legal duty theory.

Full Disclosure

We here at the Law Blogger go way back with many of the players in these groundbreaking cases. We've known Judge Matthews since she was an assistant prosecutor in Oakland County; this blogger appeared before Judge Matthews just last week; our lawyers go back with Oakland County Prosecutor Karen McDonald to the days when she was a family law lawyer with the Dickenson firm, and then a family court judge; we have had cases where Karen McDonald represented the opposing party and we appeared before former judge McDonald in dozens of cases when she was on the family court bench. 

We've known defense counsel Shannon Smith, and currently have our own capital case with Smith's former law partner Mariel Lehman, James Crumbley's defense counsel. Our law firm has had to coordinate the trial in our capital case in Livingston County with James Crumbley's trial. 

So, along with the rest of the country, we will anxously await the jury verdict in this groundbreaking case and the in the James Crumbley case. A guilty verdict could redefine a parent's duties to control the conduct of their minor children; something that many Americans believe is long overdue. 

On the other hand, Michigan jurisprudence has long been settled that the criminal acts of third parties are not deemed to be foreseeable. Should an exception be made when the criminal actor is your minor child? 

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