Prosecutor: Crumbleys may try to get 'do-over' by sharing same law firm

The prosecution has warned the court that James and Jennifer Crumbley may be using the same law firm to set themselves up for an appeal should they get convicted for their alleged roles in the Oxford High School shooting case.

For the first time since the parents were charged in the case, the prosecution has publicly expressed concern about the Crumbleys using the same law firm to represent them.

Jennifer Crumbley has her own lawyer, Shannon Smith. So does James Crumbley, who is being represented by Mariell Lehman. But Smith and Lehman work for the same law firm, which raises issues for the prosecution about how the attorneys will defend their clients at trial as each parent will face different accusations.

The Crumbleys are not being charged as a couple, but as two different individuals whose actions may be used against the other. Should they be convicted, the prosecution argues, one may argue that they deserve an appeal because they didn't have an impartial lawyer — or there was a conflict of interest.

To avoid this, the prosecution has asked the judge to intervene and reevaluate this arrangement as the couple head backs to court for a pretrial hearing on Tuesday.

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"The purpose of the motion is to make sure these defendants understand that, once convicted, they will not be entitled to a “do-over” when they later decide that they should have had separate counsel," Assistant Oakland Prosecutor David Williams said in a statement. "Our goal is justice for the victims, and if these defendants decide to proceed with joint representation, that should not come at the expense of the taxpayers, the Court, the prosecution, and most of all, it must not come at the expense of the victims.”

The prosecutor's office has requested, among other things, that the judge explain to the defendants the "dangers" of sharing the same law firm. It also wants the judge to order the Crumbleys to sign off on a waiver before every hearing and proceeding in their case in which they acknowledge the risk and waive any conflict of interest.

"With each additional piece of evidence that is introduced, the opportunity for a conflict increases," the prosecutor's office argues in a court filing.

The issue of the Crumbleys using the same law firm has triggered much legal debate in the legal profession, with defense attorneys questioning the tactic and raising concerns about the strategy. While both sides may have an "all-on-board" mentality now, things could change, they warn.

"There may not be a conflict now ... but what happens three to six months down the road? One spouse may want to save themselves and cooperate," said prominent defense attorney James Thomas, noting the lawyers are in the same firm so it's assumed they will have an identity of purpose.

"Assuming the prosecutor is able to get over the marital privilege — it is not unheard of and could happen here. That's when it gets messy," Thomas said. "Will it happen? It's speculative now. There are too many moving parts to take a chance and then start over."

That's why Thomas believes McDonald raised this issue now — to prevent an appeal on these grounds.

Mike Rataj, another prominent defense lawyer who has practiced for decades in the state and federal courts, agreed.

"There may not be a conflict at this point. But that can certainly change over time," Rataj said. "If things go south for the parents after a trial, they could use the conflict as an argument on appeal. That's why the prosecutor is addressing this issue now."

The Crumbleys' lawyers were not readily available for comment.

The Crumbleys are charged with involuntary manslaughter for allegedly buying their son the gun that police say was used in the Nov. 30 massacre at Oxford High School that left four students dead and injured six other students and a teacher. Prosecutors have alleged that the parents ignored a troubled son who needed help, watched him spiral out of control, and bought him a gun instead of getting him help.

The Crumbleys have denied wrongdoing, saying they had no way of knowing that their son would commit the shooting, that they kept the gun properly secure in their home, and that they are not responsible for the students' deaths.

The couple, who were bound over for trial last month, will be in court twice this week: On Tuesday, for their pretrial hearing, and on Wednesday, for a hearing on the prosecution's request to reevaluate their usage of the same law firm.

Their son, Ethan Crumbley, 15, is facing first-degree murder charges and is pursuing an insanity defense.

Contact Tresa Baldas: tbaldas@freepress.com

This article originally appeared on Detroit Free Press: Prosecutors: Crumbleys may be setting themselves up for appeal