The Ethan Crouch Case’s D.A., Trying To Right An Arguable Wrong With Six More

Listen to your mother, Joe.

Listen to your mother, Joe.

The infamous vehicular homicide case that generated the “Affluenza Defense” is well on its way to becoming an ethics train wreck.

The news media keeps doing its part: today CNN’s Ashleigh Banfield, whom I can no longer recall why I ever thought she was more than an over-opinionated hack (I think it was her glasses) said again today that Judge Jean Boyd “bought” 16-year-old scofflaw Ethan Crouch’s defense that he wasn’t responsible for his actions (that ended up leading to the death of four and critical injuries to two of his friends) because he had been spoiled by an affluent upbringing. As I already pointed out, there is no evidence that Judge Boyd agreed with that dubious argument, and solid evidence that she did not. Never mind. Ashleigh and the rest of her incompetent colleagues will continue to try to mislead the public regarding this just as they regularly do on nearly every other news story.

The more surprising development was the sudden participation of the Tarrant County District Attorney Joe Shannon, he whose efforts to jail young Couch were foiled by Boyd’s expansive judicial compassion toward a minor, in the ethics follies. He’s attempting another “bite of the apple, ” as judges say, by asking Boyd to lock up  Ethan  on two counts of intoxication assault that he argues are still pending before her court. Shannon explained:

“During his recent trial, the 16-year-old admitted his guilt in four cases of intoxication manslaughter and two cases of intoxication assault. There has been no verdict formally entered in the two intoxication assault cases. Every case deserves a verdict.”

Shannon’s renewed plea focuses on the two teens riding in the back of Couch’s Ford F-350 pickup (voluntarily riding there, knowing the driver was unlicensed and drunk as a skunk) who suffered life-altering injuries. One of them, Sergio Molina, is paralyzed and can communicate only by blinking. It is 1) disingenuous 2) unprofessional  3) unfair 4) futile, and he knows it, 5) irresponsible, and 6) probably unconstitutional.

All of which means his gambit is 7) unethical.

It is disingenuous because he knows that the Judge’s sentence was intended to cover those counts as well. Couch pleaded guilty to all of the counts, and the judge rendered her sentence. It is unprofessional because Shannon is obviously playing to the mob and the media, taking this cynical course in response to the uproar over Boyd’s light sentence. Prosecutors are not supposed to base their handling of cases on popular outrage, and it is unethical to do so.

His stunt, and that’s exactly what it is, is unfair because a defendant who pleads guilty to all counts should be able to trust that the verdict handed down will end the matter, and that the state will not manufacture a way to get a second, harsher sentence delivered later. It is futile, because the crime of intoxication assault is obviously less serious than manslaughter, and for Boyd to sentence Couch to jail time for injuring his two (partially responsible and certifiably reckless) injured passengers when she chose not to jail him for the deaths of the four innocent people he ran down when his truck went out of control would be an admission that her first sentence was wrong, and thus rank hypocrisy. Obviously, the chances that she will make herself look like a fool when she’s already being accused of being one is nil.

Shannon’s tactic is irresponsible, because it will re-kindle public outrage and distrust of the justice system just as the controversy is calming down and out of the news. In essence, he is making the system look worse so he can look better, and claim that he did everything, tried everything, fought til the last dog died to get that murderous rich kid behind bars, when in truth he is just grandstanding, and throwing the judge under the bus, where so many people would like to see her. Finally, this is probably unconstitutional because it creeps perilously close to double jeopardy, and any new sentence from the judge probably would be overturned on that basis.

That’s six wrongs in one flamboyant, desperate legal maneuver doomed to failure—pretty impressive, when you think about it—all to try to make right a sentence that armchair jurists and lazy journalists have pronounced as an offense against justice. But Joe Shannon’s mother surely taught him that two wrongs don’t make a right. He should know, and I suspect he does, that seven wrongs won’t either.

___________________________

Pointer: CNN

Source: Dallas News

 

19 thoughts on “The Ethan Crouch Case’s D.A., Trying To Right An Arguable Wrong With Six More

  1. “claim that he did everything, tried everything, fought til the last dog died to get that murderous rich kid behind bars”
    Isn’t this zealous prosecution of the same type that the afluenza defense is zealous defense?

  2. Mr. Marshall:
    I am not an attorney but it seems to me that irrespective of the Judge’s original sentence, significant consequences have yet to be tried: the civil case. The public should realize that justice is meted out in the long term and any benefit derived from vengeance lasts only as long as the perpetrator is in the public eye.

    It seems to me that young Mr. Couch will not have the trappings of wealth much longer. The mitigating factor used “affluenza” sets the parents up to be financially wiped out that will effectively remove the shield of wealth young Mr. Coach thinks exists.

    If I understand the law, it would be much harder to hold the parents civilly liable for the actions of the son if their behavior could not be directly related to the foreseeable actions of the child. The defense of the child established that negligence at trial without rebuttal from the parents.

    Consequently, the resources of the parents to pay the $450K/ year may not be available to pay the spa and the child will be out of luck What people forget is that the young man still faces 20 years if he screws up. I would wager that he will screw up and will spend time in jail for this.

    I find it abhorrent that any prosecutor would seek to exact more retribution after the sentence was handed down because of public outcry. If you polled the public I doubt if you would find uniformity of opinion on what the punishment should be. Some would agree with treatment; others would want 20 years; some life; some might even want the death penalty. If the sentence handed down was within the guidelines then it is just. We do not need the reverse equivalent of the Emmett Till story were popular sentiment determined what justice is.

    The only reason that there is a public outcry in this case is because we are being trained to believe that justice is disproportionately handed out in favor of the wealthy. I do not see it that way. If we do not like sentencing guidelines we cannot abrogate our responsibility to work to change them; we cannot arbitrarily change them because we loathe the person charged because of his wealth, color, or other unrelated attribute.

    • The only reason that there is a public outcry in this case is because we are being trained to believe that justice is disproportionately handed out in favor of the wealthy.
      **************
      No.
      The reason why is the belief that ANYONE who KILLS FOUR PEOPLE needs to spend some time in prison.
      No matter what. Period.

      The Boston Marathon Bomber is young, has a life before him, might be rehabilitated, and only killed three people.
      Shall we send him to a spa as well?
      Would that be suitable or is the reason you (general you) don’t want to do that because you are an anti-Muslim bigot?

      I have to stop posting on this topic, it makes me too mad.
      No wonder the rest of the world is laughing at us.
      Not only is our president a joke, so are our judges.
      No one has ever heard anything so ridiculous as sending the murderer of four to a spa.

      • Murder requires intent.

        Drunk driving is recklessness. Not intent.

        Building, planning, and setting a bomb is intent.

        If we want to have sentencing for crimes consider intoxication as a mitigating factor for stronger sentences, fine. That’s a discussion the Community can have.

  3. I DO think that the prosecutor taking a second trench run at the Death Star (that apple analogy is so boring) is inappropriate, but my lack of legal knowledge is going to come through here. Did the judge or did she not include all offenses in the sentencing? If a defendant pleads guilty to the charges of X, Y, and Z, is it normal for the judge to say “For the crime of X I sentence you to so-and-so” and for Y and Z to not be referred to, with the assumption that so-and-so was a sentence for all 3? Or is the notion that a judge even says that a TV thing?

    • I hope our host can clarify those questions for us non-lawyers. To a layman it sounds odd (as do many things in specialized professions that sound odd to the uneducated).

  4. Boyd’s expansive judicial compassion toward a minor
    **************
    She needs to be investigated.
    She either took a bribe or is suffering from Alzheimer’s.

    • Not true, and not provable. Recognize that someone can be justified, honest, competent, and in good faith while still doing something you disagree with. Disagree all you want, people like that can still be WRONG, but they don’t have to be incopetent or corrupt.

  5. I admit the ‘spa-like’ aspect if his treatment I don’t like. I could see that a particular method of rehab, like equine would be useful to teach responsibility, even if it sounds like luxury. Getting up early to muck a stall might be a useful life-lesson. The thing that sticks in my craw is how lux the quarters when this is a prison alternative, not a prep school.

    It’s hard to see the judge’s thoughts from this far away, but I like that this parole could shift to prison if they mess up. I wish more young and stupid regardless of wealth who weren’t malicious could get one last chance, as hardening them that won’t make them a useful and productive citizen. And they will get out.

  6. As I’ve written before, I have grave misgivings as to the practicality of implementing the sentence. I think it quite possible that the probation terms will be ignored. Actually I think it extremely likely they will, but would have difficulty proving that.

    Having said that, I agree with Jack here, with one quibble. A formal verdict is required for the intoxication assault charges, as that will have bearing on any civil suits. I see no reason for the existing sentence to be disturbed by such a formal finding though, and many good reasons (see Jack’s post) why it should not.

  7. I have to respectfully disagree with our host.
    Let me start with this. You said here: https://ethicsalarms.com/2013/12/12/ethics-observations-on-the-affluenza-sentence-and-none-of-them-involve-criticizing-the-judge

    “Still, if the lawyer believes that such defense is his client’s only chance of avoiding the hoosegow—and what other defense is there for an incident like this?—then he not only should try it, he has an obligation to try it.”

    Isn’t the reverse true for the prosecutor as well? Is it not his obligation to the community he serves to see that this defendant is sentenced for of his crimes?

    1. “It is disingenuous because he knows that the Judge’s sentence was intended to cover those counts as well.” – Assuming facts not in evidence. The prosecutor has NO way of knowing anything more than is in the written order. IF she had intended the sentence to be inclusive, it would have been in the order, but it apparently isn’t.

    2. “It is unprofessional because Shannon is obviously playing to the mob and the media” – Again, we have no way of knowing this for certain. He was asking for 20 years, who is to say he wouldn’t have gone back and requested a verdict for the other two charges if a media storm hadn’t erupted. As far as I can see he had a professional obligation to do so, it would have been unprofessional if he didn’t
    .
    3. “ unfair because a defendant who pleads guilty to all counts should be able to trust that the verdict handed down will end the matter” – It hasn’t ended because a verdict wasn’t handed down on all charges he plead guilty to. He rolled the dice… 4 of them stop on probation, 2 of them are still in motion.

    4. “It is futile” – Maybe, but that remains to be seen.

    5. “Shannon’s tactic is irresponsible” – His responsibility is to the people that elected/hired him to do this job, the job isn’t over yet.

    6. “Finally, this is probably unconstitutional because it creeps perilously close to double jeopardy” – Not at all, the last 2 charges don’t have a final disposition. Maybe the defendant can pull back his plea on these charges at this point and it will have to go to trial, I don’t know, but it certainly isn’t double jeopardy.

    Maybe this is doomed to fail, maybe the Judge did in fact mean for the sentence to cover all 6 charges, but the prosecutor is doing his job in pursuing this to the end and I just don’t see how it is unethical to do the job he is paid to do.

    • Well argued, but wrong, I think:

      “Isn’t the reverse true for the prosecutor as well?”
      No, not really. A prosecutor is not permitted to break down walls and try ridiculous theories. He is charged with achieving justice. Once he has a conviction, his job is done.

      1. “Assuming facts not in evidence. The prosecutor has NO way of knowing anything more than is in the written order. IF she had intended the sentence to be inclusive, it would have been in the order, but it apparently isn’t.” Not true. The case was ended, the judge’s sentence was complete. The evidence is that, and it is plenty. This happens a lot—the judge renders the sentence from the bench, and doesn’t specify every count. Remember, the DA was there. He let the final order issue; he didn’t object. He didn’t object because he knew it covered everything. And that was the time to raise the matter, not days after the trial and when all the criticism had come in. Prosecutors in criminal cases don’t get an appeal.

      2. “It is unprofessional because Shannon is obviously playing to the mob and the media” – Again, we have no way of knowing this for certain. Yes, we do. This is extremely unusual, and late…and, as I pointed out, futile. DA’s don’t make futile motions unless there’s a reason, and the only one is PR.

      3. “ unfair because a defendant who pleads guilty to all counts should be able to trust that the verdict handed down will end the matter” – It hasn’t ended because a verdict wasn’t handed down on all charges he plead guilty to. He rolled the dice… 4 of them stop on probation, 2 of them are still in motion. Again, wrong. The trial is over, final judgment has been rendered, and the DA was there when it happened. He had his chance to ask whether there was more to the sentence.

      4. “It is futile” – Maybe, but that remains to be seen. No, it doesn’t, because this can’t succeed. What judge would ever agree that after refusing to sentence jail time for 4 murders, she needs to do so for the two mere injuries, and of voluntary participants, no less? If can’t happen, and won’t happen. “Well, the judge may go insane” is not a valid argument.

      This is a frivolous argument, in fact, one that violates ethics rule 3.1 prohibiting a lawyer from raising an issue that he knows cannot possibly prevail. It’s a bad faith argument—unless Shannon wants to claim that he is an idiot, and is the only one who genuinely believes that it can prevail.

      5. “Shannon’s tactic is irresponsible” – His responsibility is to the people that elected/hired him to do this job, the job isn’t over yet. Wrong. He is an officer of the court, and his motion makes a travesty of justice by intentionally focusing more anger and criticism on the judge—and that’s the sole purpose of his stunt, because there is nothing else it can accomplish.

      6. “Finally, this is probably unconstitutional because it creeps perilously close to double jeopardy” – Not at all, the last 2 charges don’t have a final disposition.

      Uh-uh. When the gavel comes down and court is adjourned, jeopardy attaches, especially when the DA had every opportunity to raise this issue before the decision was final.

      • I’m not a lawyer, so my courtroom experience is limited to Family Court, and not in the State of Texas, but in that limited scope I’ve found anything not actually in the judge’s order is irrelevant.

        I’ve also found that getting a conviction doesn’t always mean justice was achieved, but YMMV.

        [A lot of deleted text was here]

        I was researching my counter arguments, mostly about laying the ground work for an appeal of the sentence, I see now that the prosecutor was making a request, not actually a legal motion or filing as I had thought in my earlier comment.

        So while I agree that we don’t have enough information/evidence to judge the Judge in this case, I do still disagree with your position that the prosecutor is out of line in making the request. I see the prosecutor as being an advocate for the public in addition to an officer of the court, no different than the defense attorney who is both an advocate of the defendant and an officer of the court. They aren’t mutually exclusive in my view.

        • If it’s just a request, it has no legal force at all, and we shouldn’t be wasting time on it. A prosecutor’s request after a trial is over has no more force than your request or mine. There is no such legal process. It’s a claim, or a motion or an appeal or another formal process, outside of the trial itself, where a party can, say, request a recess. Once the trial is done, as this one is, you can request for the judge to change her sentence or her name to Squeaky–nothing’s going to happen. There’s no way to lay the groundwork for an appeal—there is no appeal. That’s why this all PR and futile. The two sides in family law are on an equal footing, and either can appeal. Not in criminal law.

          Futile, and thus grandstanding to the public and the media, which doesn’t understand any of this.

          • Wouldn’t it boil down to her verbiage? If she stated during sentencing to the effect “for the charges of intoxication manslaughter…” but didn’t specify the other two charges, then it seems one can’t make the logical assumption she must have included the other two.

            On the flipside, if she didn’t state something to the effect of “for the charges of intoxication manslaughter…” and didn’t specify any of the charges, then the flipside argument can be made — well what about sentencing for the 4 charges of intoxication manslaughter?

            Since that argument isn’t made, then at some point the DA makes the assumption she was referring to the 4 intoxication manslaughter charges even if she didn’t state, and like you said, he has no reason not to assume she wasn’t talking about the 2 remaining charges as well.

            I’ve been searching in vain for a transcript of her sentencing and final words on the trial.

  8. Isn’t the DA supposed to make a determination as to whether a minor will be charged as an adult or go through juvenile justice system? If so, I’m not sure why the DA chose to go through the juvenile justice system here in Texas if he truly wanted to see Couch see jail time. The juvenile courts in Texas are not even criminal courts. They are civil courts and a judge’s role in these courts is to do “what is best for the child” unlike a criminal court which is more punitive in nature. It seems that if jail time was what the DA was looking for then Couch should have been tried as an adult. Furthermore, even if he was tried as an adult, it doesn’t mean he would go to jail. It is pretty common in Texas for adults charged with involuntary manslaughter to receive a probated sentence. I don’t think this would be a national news story if the term “affluenza” had not come up and the media was not able to spin it in a way to make the judge seem as she has been “bought off” by the rich parents.

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