The East Palestine derailment lawsuit in Ohio settles for $600 million, Wineries of Old Mission Peninsula are suing Peninsula Township, The American Bar Association President's letter to attorneys, and Parents of Michigan school shooter both sentenced to 10-15 years for involuntary manslaughter
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Jack Sanker (00:05):
Welcome to litigation nation. I'm your
host, Jack Sankar, along with myco host, Anessa Watkins.
Reminder, this is the podcastwhere we talk about the most
interesting and important legalnews of the past couple of
weeks. For today's stories, wehave an update on the class
action suit related to the EastPalestine, Ohio train derailment
in 2023. The president of theAmerican Bar Association says in
(00:28):
a statement that lawyers have aduty to defend judges from
attacks on their character.
And, Danessa, what do you have?
Danessa Watkins (00:35):
Today, I'm gonna cover 2 cases out of
Michigan. The first, a federaljudge recently found that local
zoning regulation that wouldprevent wineries from hosting
weddings or other gap gatheringsis actually not an
unconstitutional restriction oncommercial speech or an
infringement on propertyinterests. And then also in
Michigan, the parents ofteenager Ethan Crumley, who is
(00:59):
the, youngster who carried outthe deadliest school shooting in
Michigan's history. Well, hisparents were recently sentenced
to 10 to 15 years in prison forinvoluntary manslaughter. And
this is a defining moment in therecent push to hold parents
accountable for the criminalactions of their
Jack Sanker (01:15):
children. All that more, here's what you need to
know. The class action suitrelated to the East Palestine,
Ohio train derailment andchemical spill ordeal from 2023,
just settled this past Mondayfor a gross total of
(01:36):
$600,000,000. On April 9th,Norfolk Southern, and the class
action attorneys for the classfiled a joint motion in the
Northern District of Ohio,notifying the parties that they
had agreed to a 600 $1,000,000settlement in principle. The
final terms of the deal were inthe works.
The class of claimants includesanyone within a 10 mile radius
(01:57):
of the derailment for personalinjury claims and then a 20 mile
radius for any other claims. Thesettlement is being funded by
Norfolk Southern mostly alongwith the railcar owners, GATX
Corp, Trinity IndustriesLeasing, and the chemical
company, for the vinyl chloridethat was inside the tankers that
spilled and we also have thosehorrible images all over social
(02:18):
media, Oxy Vinyls LP. Quotingfrom a law 360 piece on the
news, quote, Norfolk Southernsaid that it has negotiated the
proposed deal as part of itsongoing efforts to make it right
for the people of East Palestineand the surrounding communities
in a Tuesday statement on theproposed settlement in
principle. The agreement isdesigned to provide finality and
(02:40):
flexibility for settlement classmembers, the company said.
Individuals and businesses willbe able to use compensation from
settlement in any manner theysee fit to address potential
adverse impacts from thederailment.
This could include health careneeds, medical monitoring,
property restoration anddiminution, and compensation for
any net business loss, unquote.Good for the town and the people
(03:02):
affected, I suppose. However, Iit's it's worth noting dollars
$1,000 per person.
Danessa Watkins (03:14):
I was just gonna say, I mean, I don't do
class action work, but I'vealways been curious about how
they take these largesettlements and divvy them up.
You know, whose responsibilityis that? And I'm sure you have
to submit claims and, you know,provide some evidence of your
damages. But, yeah, certainly,6,000 per person is not gonna
cut it here.
Jack Sanker (03:35):
Yeah. You know, I so on the first part, the how
the how are these settlementfunds administered? Typically,
the there's a trust that's setup as part of the deal that's
usually being administered by,the funders of the settlement.
And so that those trustees willbe evaluating the claims and and
they'll agree on the frameworkfor how those claims get
(03:56):
submitted. So, you know, forexample, there's a a lot of
there's a lot of funds still outthere from the asbestos cases
going back to, like, 19eighties.
And if you want to submit aclaim for asbestosis or
mesothelioma or whatever, youtypically have to provide some
type of medical documentationlike a, scan films that shows,
(04:16):
you know, something in yourlungs or whatever, as well as
affidavits and things like thatthat show that you would have
been exposed to this chemical inthe first place. I imagine it'll
be something similar like that.The one thing about these
Palestine chemical spill, isthat I it's $600,000,000. It's a
lot of money. But I think we areremarkably lucky that this
(04:38):
wasn't worse than it could havebeen.
By all accounts, at leastaccording to the EPA, the NTSB,
and some of the I know that theprivate universities that are in
the area, like Carnegie Mellon,I think, and a few others that
have been studying this, havesaid for I think for the most
part that the that the water andair and all that stuff is fine.
(05:02):
People aren't being exposed toanything higher than what they
were. However, the actual, like,explosion itself, all that
happened in a relatively remotearea of Western Ohio. And this
train, if I recall, was, was onits way to or was coming from, I
(05:22):
can't remember which,Cincinnati. And then eventually,
I think would have ended up herein Chicago.
So had it blown up in one ofthose places, or an even a more
densely populated suburb orwhatever, you would see a lot
more, you know, damage and andinjury and things like that. And
this you know, the the counteror the analog to this that
(05:44):
everyone was upset about at thetime, if anyone remembers back
in 2012, there was a tanker thatblew up in in Quebec, which
killed, dozens so we managed toavoid that here. And, you know,
hopefully, the folks in EastPalestine and and around there
are gonna be made at leastsomewhat whole by the
(06:05):
settlement, but it could havebeen way worse. That's that's
sort of my takeaway from this.And and I as someone who was I
was at the NTSB hearings in EastPalestine, we were involved in
some of the work around this,not the class action case, but
some of the other stuff.
It was just apparent, like, howmuch worse this could have been.
(06:26):
If they had invented the tankerat the right time, it could
have, you know, been a biggerexplosion, all sorts of stuff
like that. So, just bulletdodged here. Mhmm.
Danessa Watkins (06:37):
Well and, hopefully, I'm sure, you know,
certain people will get morethan 6,000. Some people will get
less. So, hopefully, they sendthe money where it's needed
most.
Jack Sanker (06:46):
Yeah. I mean, not everyone's gonna it boils down
to. I don't I don't think Iqualify for a claim for having
spent 5 days there for the NTSBhearings, but, you know, it's
the 2nd episode in a row that II've theorized that I should
just start joining classactions. Yeah. So in any event,
I I'm sure that the people inEast Palestine are probably
(07:07):
happy to get this done.
I'm sure that the class action,the lawyers who put this
together are thrilled with theirfee. And, Norfolk Southern
hopefully has learned a lessonhere and, we'll let this happen
again.
Danessa Watkins (07:23):
Okay. So my first story I'm covering today
involves a lawsuit that wasfiled by several wineries
located in the PeninsulaTownship in Traverse City,
Michigan. Now to provide somegeographic reference. So, when
looking at a map, Michigan isshaped like a min with the thumb
facing East and Traverse Citywould then be located at about
the tip of the ring finger. SoPeninsula Township, true to its
(07:47):
name, is a peninsula and it jutsinto Grand Traverse Bay, which
is part of Lake Michigan.
And that peninsula is full ofagricultural sites. So there are
vineyards with rows of grapevines, lavender farms,
nurseries, fruit stands,protected parks, all surrounded
by 3 sides of lake. So it'sreally a gorgeous part of the
state.
Jack Sanker (08:08):
The Napa Valley of the Midwest, if you will.
Danessa Watkins (08:10):
Absolutely. I've actually been to Traverse
City. I have not been to thepeninsula, but, just from the
pictures I saw, I mean, this isa location where you could see
people wanting to host weddingsand other types of events. So
our plaintiff here, thewineries, they sued Peninsula
Township for severalrestrictions and regulations
(08:32):
that were put in place via thePeninsula Township Zoning
Ordinance. There wereregulations on advertising, what
type of bar and restaurantoperations they could have,
prohibitions on amplified music,and then a prohibition on
hosting events such as recentlygot set for trial on April 29th.
(08:56):
And on April 5th, the districtjudge entered a ruling on the
party's cross motions forsummary judgment. So one part of
the ruling address thisordinance prohibition on
wineries using their space forweddings and receptions and
other social functions for hire.The The judge actually entered
summary judgment against thewineries on their claim that
(09:18):
this zoning ordinance regulatedtheir protected commercial
speech under the FirstAmendment. The threshold,
question for First AmendmentAmendment claims like these is
whether ordinance regulatesprotected commercial speech or
expressive conduct.
Jack Sanker (09:36):
Is there a distinction between commercial
speech and personal speech inthis context?
Danessa Watkins (09:41):
Well, yes. So in this case, the commercial
speech has to hit certaincriteria, has to be an
advertisement, has to refer to aspecific product or service, and
then the speaker has to have aneconomic motivation for making
it. The reason why thatdistinction matters is the level
of scrutiny that applies.
Jack Sanker (09:58):
I see. So there are different first amendment
standards.
Danessa Watkins (10:01):
Correct.
Jack Sanker (10:01):
Okay.
Danessa Watkins (10:02):
Yep. So commercial speech will have a
lower level of scrutiny than
Jack Sanker (10:06):
Makes sense.
Danessa Watkins (10:07):
Personal speech. Now what the plaintiffs
tried to argue here is thattheir what they call agritourism
is actually a type of moderncommercial advertising. So in
Michigan, the Department ofAgriculture has described this
term agritourism as follows.Quote, agritourism is a niche
(10:28):
form of tourism and defines theplaces where agriculture and
tourism connect, including anytime a farming operation opens
its doors to the public invitingvisitors to enjoy their products
and services. Agriculture andtourism are leading economic
drivers in Michigan.
Agritourism offers farmers apath to diversification of their
business to include value addedproducts and activities, which
(10:49):
helps them better withstandthings like poor weather
conditions and marketfluctuations. They say, if they
they say if they host a wedding,for example, more patrons are
going to be on their property.They're gonna see their other
(11:11):
products, and the wineries willhave an increase in their sales
because of that. The court,however, said that hosting
weddings and other events doesnot automatically convert these
plaintiffs commerce orientedactivities into speech, and you
can't just slap this termagritourism label onto these
(11:31):
events. So if the court were toapply this broad term
agritourism as a as a type ofcommercial speech, then
essentially anytime a patronstep foot on a wine property,
that winery would be engaging incommercial speech.
And according to the court, thatview approaches the limitless
view of speech that the SupremeCourt has expressly disavowed.
(11:54):
So these because these events,weddings, reunions, baby
showers, because they don'trefer to a specific or discrete
type of commercial transaction,but at best, they really just
refer to the winery and theirproducts generally. It's not
gonna be a type of protectedspeech under the first
(12:15):
amendment. So regulating eventsdoes not implicate first
amendment protections. Now theother part of the decision
focused on this claim under thetakings clause, and this part
was actually a little bit moresurprising to me.
So the ordinance well, what thewineries are claiming is that
the ordinance operates as ataking of their rights to
(12:37):
operate their restaurants andkeep certain hours of operation,
playing music for their guests,and use of their their licenses
under the Michigan liquorcontrol code. So the 5th
amendments taking clauseprotects private citizens from
the government taking theirproperty for public use without
just compensation. And oneexample of a taking is, when a
(13:01):
government invokes a regulationthat denies a property owner the
full use of their property.
Jack Sanker (13:06):
There you go.
Danessa Watkins (13:06):
So I think this was probably their best argument
that they put forth. But onceagain, the court found for the
township. It said there is noprecedent for recognizing that a
liquor license is a propertyinterest protected by the
takings clause.
Jack Sanker (13:21):
So the the lice having a license is not a
property interest for purposesof the takings clause. That's
interesting. I mean, have a lawlicense. Right?
Danessa Watkins (13:31):
Mhmm.
Jack Sanker (13:32):
You have a license. Doctors have their medical
licenses. I I suppose this wouldimply that those licenses could
be revoked without due process.
Danessa Watkins (13:50):
I don't know if I would go that far in a reading
of this. And it's also it's it'shard to compare apples to
oranges because, obviously, aliquor license is going to have
certain restrictions on itanyway. I think in Michigan,
there are limits on when you canactually sell Sure.
Jack Sanker (14:05):
Yeah.
Danessa Watkins (14:06):
Alcohol in the state and
Jack Sanker (14:07):
Obviously, you can't sell the minors. You
Danessa Watkins (14:09):
Right. Right. So I think the government has
allowed restrictions on thatlicense and, apparently, is is
finding that furtherrestrictions on it, or
restrictions that may affect theability to use that license. But
it's, you know, it's it'sdifferent because here it's, you
know, you can't play music to acertain extent. Okay.
(14:29):
Well, does that your patronagethat are
Jack Sanker (14:32):
Probably.
Danessa Watkins (14:33):
You know, you drinking your liquor or
whatever? I mean, yes. But, thecourt's not willing to take it
that far.
Jack Sanker (14:39):
Yeah. And then also there's, you know, the fact that
the the local, municipality hereis, regulating the state issued
liquor license effectively.
Danessa Watkins (14:53):
Setting more setting more restrictions
locally, yes, than the than theywould at a state level. And, of
course, they're looking at itfrom community standards. You
know, this is a fairly smallcommunity, and so they wanna
make sure that there aren't anynuisances from noise or traffic.
And so they are, I guess,protecting, you know, the
(15:13):
locals, from having to deal withwhatever these wineries opening
themselves up to, you know, 200person events could bring.
Jack Sanker (15:21):
I guess the flip side of this is is probably, you
know, probably ridiculous. Like,if if if, zoning regulations for
these types of things were foundto be in violation of either the
state or federal constitution,you know, how how does that play
out, like, in a crowded city,for example? Like, how does how
do the all of a sudden, how doesthe building code get enforced
(15:43):
and everything else? So I guessit's not that surprising when
you think about it in the macrolevel.
Danessa Watkins (15:48):
Yeah. I I think though it was, you know, an
interesting argument to push.
Jack Sanker (15:53):
From the first amendment perspective, for sure.
Danessa Watkins (15:55):
Yeah. So, essentially, this ruling just
significantly limited whatissues are gonna be, heard at
trial. The wineries are stillgonna be able to bring their
case on merchandising andadvertising rules. But, these
these issues of commercialspeech and and the takings
(16:16):
clause, they got thrown out. Sowe'll see what happens with
this.
Jack Sanker (16:27):
Not exactly a free speech story, but kind of. The
president of the American BarAssociation said in a statement,
just this past Monday here inChicago, she warned of the the,
threats and rhetorical and evenserious physical threats that
have been made to judges overthe past couple of years which,
(16:50):
of course have been a realproblem and, you know, in and of
themselves. It it should gowithout saying, are important.
But also talks a lot about thethe assault on the character of
judges themselves and I'll reada portion of her statement to
you. Quote, our courts andjudges are under attack serious
(17:10):
threats against judges havedoubled since 2019 with 457
serious threats targetingfederal judges across the
country in 2023.
National leaders and privatecitizens are making false
statements and argue,accusations against judges for
partisan purse impersonal gain.These attacks are no idle
matter. Often, they involvephysical threats to har of harm
(17:31):
or death, not only to the judgesbut to their families and staff.
I'll take a pause real quickright there and say all of that
should go without saying is wellbeyond the pale and not
acceptable in polite society orany serious society at all. But
it's kinda the next bit herethat is somewhat interesting for
(17:52):
me.
Going back to the quote, threatsagainst the very individuals we
have appointed or elected toadminister our judicial system
and the rule of law are nolonger wrong. They also threaten
the very fabric of ourdemocracy, judicial
independence, and the rule oflaw. All lawyers are bound by
ethical rules based on the ABAmodel rules of professional
conduct. These rules prohibitlawyers from making false
(18:12):
statements about thequalifications or integrity of a
judge. Based on these rules andto maintain the fair and
independent administration ofjustice, lawyers are encouraged
to defend judges and courts thatare unjustly criticized, un
quote.
So it's that last bit thatreally jumped out to me. There
there she's not saying, the ABAis recommending that you jump on
(18:34):
Facebook and get into argumentswith your aunts and uncles about
supreme court. Right? But Ithink she is encouraging,
attorneys and and members of thebar to, police the speech around
criticism of judges and judicialdecisions. And and I I get
generally what, she's sayinghere which is the crank theories
(18:58):
about, you know, whatever it isyou wanna say the election or,
or or whatever, we shouldprobably pipe up and and go and
say something about that.
But let's take a pause on thatfor minute. I mean, there are
and have been, over recentyears, valid criticisms, I
think, voiced at both, you know,the federal circuit court judge
(19:22):
level, but especially at thesupreme court level of people
criticizing what they perceiveas, impropriety to use a polite
word, but some people would say,you know, outright corruption.
And, this is a bit of a, fromthe ABA here, to encourage
members of the bar to kind of,like, stick up and, I guess,
(19:44):
maybe deflect or, defend certainthings like this. It's just it
struck a weird tone for me,given, you know, the standards
of free speech in this countryand everything else. Later, I
wanna read again from theremainder of the statement here.
Quote, bar associations have aspecial responsibility to ensure
(20:05):
that the public holds thejudiciary to the highest esteem.
Parenthetical, I would say thatjudges have a special
responsibility to ensure thepublic holds them to the highest
esteem. I
Danessa Watkins (20:15):
would agree with that.
Jack Sanker (20:17):
Yeah.
Danessa Watkins (20:18):
I mean, I think I I see it from both sides, I
guess. And it's it's hard for meto, you know, defend what the
Supreme Court is doing, but Ican take this, her you know,
what the ABA president istelling us. I can take it on a a
more local level, and it it didcause me so she did email this
(20:39):
out to anyone who's a member ofthe ABA who signed up for emails
because I did get it by emailtoo. And it did make me think a
little bit about as as lawyersthat, you know, the first thing
you do when you get a case, youresearch the opposing counsel,
you research the judge. Andoftentimes, I do send reports to
my clients about the judges.
(20:59):
You know, what kind of caseshave they
Jack Sanker (21:01):
Yes.
Danessa Watkins (21:01):
Had before them? You know, how did they
come down? Is there anypatterns? Like, what should we
be aware of?
Jack Sanker (21:07):
And Let's let's not mince words here. Like, when we
say we do research on the judge,we'll oftentimes, advise our
clients. This judge doesn't knowanything about this type of law.
Danessa Watkins (21:17):
Right.
Jack Sanker (21:17):
Or this judge is so plaintiff friendly or defense
friendly Mhmm. That depending onthe claim that's in front of
them, you're never gonna get afair shake.
Danessa Watkins (21:27):
Yeah.
Jack Sanker (21:28):
That's candid assessments. Like and I'm I'm
sure that there I hope thatthere are listeners here nodding
along, but maybe some of themare shocked. It it it isn't
shocking to anyone wholitigates. Right. That I could I
can I think I could speak forall of us when I say that?
Danessa Watkins (21:43):
But I think what I took though, maybe from
this morning that she put out,is that sometimes we have to be
aware of who our clients are orwho our audience is when we're
saying these things.
Jack Sanker (21:53):
Yeah.
Danessa Watkins (21:54):
You know, it's one thing for us to come to our
own conclusions, but maybethat's a takeaway for us on a
local level of, you know, maybeyou need to pay a little bit
more attention to how you wordthese things and and show a
little bit more respect for thefor the judges because, you
know, your clients aren't gonnaforget that when that bad ruling
comes down, you know, when yourmotion gets denied or whatever
(22:16):
the case may be. Oh, yeah. Youtold me. I remember you told me
from the beginning that thisjudge wasn't gonna rule for us.
And then, you know, it becomesmore of, well, you know, maybe
that ruling did have some meritto it.
And
Jack Sanker (22:26):
Oh, yeah. Yeah.
Danessa Watkins (22:26):
You know?
Jack Sanker (22:27):
Well and there's also, you know, to your point,
being aware of the audience, itit's you have to be aware of how
people are gonna perceive this.If every lawyer in your
jurisdiction is saying, man,that judge really stinks, you
know, for x y z reason. Therecould be someone that hears that
and is, like, wow. That judge isbad. You know, I should threaten
their family.
Danessa Watkins (22:48):
You're right. Okay.
Jack Sanker (22:49):
And it's, like so maybe, you know, maybe you don't
complain so loudly because youhave to understand that there
are a lot of crazy people outthere who's gonna hear this
stuff and not have any contextto put it in. Right? Like, so if
I our context, you know, that II've assigned to a certain judge
and I say, listen, this judgehas, in my opinion, certain
biases or whatever. That's inthe context of, like, every
judge in their jurisdiction onthese narrow issues. Again, I
(23:11):
think it goes without sayingthat if you're a judge who has
either been elected orappointed, there's a baseline
level of competency that you areexpected to have and that every
judge I've ever practiced beforedoes have.
You know? It's in the marginswhere you can make these
judgment calls or whatever. Butsomeone who's not in industry
or, doesn't understand that andthinks, well, just because this
(23:33):
federal circuit court judge wasappointed by Barack Obama or
Donald Trump, they will alwaysdecide the issues in favor of
those 2 political agendas. Andthat's just, like, that's never
the case. And even if you lookat those judges, they don't rule
that way, like, often.
On a particular case, they mayor may not, but it's it just
doesn't work that way. By andlarge, the judges are trying to,
(23:56):
like, be public servants, andand do a good job here. But this
whole the tone of this wholething do did kinda strike me as,
it should be illegal to make funof us. And, and, you know,
that's you're you're not allowedto make fun of us. And, and if
anyone if you overhear anyonemaking fun of us, you should you
(24:17):
should tell them to stop.
Danessa Watkins (24:18):
Oh, gosh. I don't know that I took it that
way.
Jack Sanker (24:21):
Here's well, let me let me read this last part.
Danessa Watkins (24:22):
Okay.
Jack Sanker (24:24):
Quote, every one of us must stand up for our judges
and their staffs and engage inthe civic education needed to
help our public understand howour courts work, the crucial
role education needed to helpthe public understand how our
courts work. I mean, that's yourjob, man. Sorry, but, and I I
(24:57):
understand as members of the ofthe bar, we do have obligations
to the public at large, and, andI think that, you know, everyone
in their heart of hearts triesto put on profession works. But
if the judiciary and, theadministration of justice is,
(25:19):
like, cape, and, you've youdon't have I mean, if you've
ever seen a pro se litigant incourt, you know, they are so,
disadvantaged, to the pointwhere it's I mean, they're
(25:39):
they're basically in anothercountry have with people
speaking a different language.And so that aspect of this
stuff, I think is the public'sfault, not, you know, the
private members of the barassociation.
And it just struck me it juststruck a weird tone for me to
be, like, listen. You all needto make sure that that no one's
(25:59):
making fun of our judges. Mhmm.And to which I would say, not
the judges, but, you know, fromthe top down, if you're worried
about that, I mean, maybe thosepeople who are getting
criticized, again, not deaththreats, not things like that,
but the criticism, should bedoing a better job understanding
how that process works. And Ithink one of the most shocking
(26:21):
things from the, like, the Dobbsopinion, for example, when that
got leaked, and, like, was for amoment arguments and briefs go
into and then decisions come outof.
Yeah. But, like, the Dobbsdecision arguments and briefs go
into and then decisions come outof. Yeah. But, like, the Dobbs
decision which, like, showed,like, there's drafts. There's
negotiations among the 9justices.
(26:42):
Like, they are pitching ideas toeach other. They are arguing to
each other. Mhmm. They arerecruiting each other to sign on
to different opinions andeverything. And I think people,
when they stopped and thoughtabout that for a minute, they're
like, oh my god.
I don't know how this stuff evenworks.
Danessa Watkins (26:55):
Yeah.
Jack Sanker (26:56):
I don't even know who these people are or how this
process like, there's notransparency at all. And, of
course, there's not. And I'm notsaying there should be. But if
there's no transparency at alland people don't like the
outcome, people are gonnacomplain, and and the crazy ones
among us are gonna come up withconspiracies to explain it. So I
(27:18):
I guess that's my 2¢ to justsaying, I think the ABA
president here has the rightidea, but I just I think yeah.
I don't think it's my job. Youknow? That's I
Danessa Watkins (27:31):
It is interesting how I and I I didn't
think to really talk to any ofmy colleagues about it, but how
we probably all interpreted thisin a little bit of different
ways. I just think our systemhas come under a microscope. You
know, president Trump was madeit a point to appoint as many
federal judges as possible. Youknow, and I think that caused
(27:55):
probably some people to startpaying attention. And and maybe
people didn't realize that incertain cases, judges are
appointed, that federal judgesare appointed, and also certain
state and local judges areappointed, which is different.
You know, when you here in CookCounty, our judges run for
election. They have to go outand and run an election and meet
(28:15):
the people. And, I actuallyfavor that because, you know, it
it gives you a chance toactually meet the candidates.
And, but I can see the otherside of that too where, you
know, you have the plaintiff'sbar that are putting on for a
judge or, you know, judges needto be careful. Like, they they
can very easily create this typeof, I don't know, miss
(28:40):
misconception, I guess.
And, and that's only beenfurthered to the investigations
into justice Thomas, you know,taking these lavish vacations
and so and then you start toalright. Well, why maybe that's
why he decided that case thatway.
Jack Sanker (28:53):
And and and, like, I'm not even necessarily, you
know, signing on to those, like,allegations, but we covered, it
was in episode 40. A while back,there's a federal judge who was
under a pretty a lot of scrutinyfor the judge's competency. And
(29:15):
this was a judge who, if Irecall, was in her late
seventies or early eighties. Itwas having, like, signs of,
like, cognitive issues and andthings like that, and penned a
really really, strong objectionto this because, you know, I'm a
public servant. I I've, like,given my life to this and and
(29:38):
all those things.
And, you know, in in no othercontext would that be
appropriate, to say, you know,again, like, how it should be
illegal to make fun of me. Youshouldn't be allowed to question
me. And, like, I get and I dounderstand, and I think it's
important that judges are,occupy a special role in
(29:58):
society, and that thepresumptions of integrity and
the presumptions of goodintentions and the presumptions
of competency come with the robeand for most of the time for
good reason. But, like, when youhave something like, Clarence
Thomas thing or whateverpolitical persuasion you are,
justice Sotomayor was, was, inuniversities, it was, like,
(30:24):
contingent on them buying, like,a a bunch of her books. Right?
So, like, that's a kickback, youknow. And however you wanna,
like whichever side of this youthink you're on, the broader
that your lens is at, you'relike, you know, everyone else
would get in trouble for that.Mhmm. And the fact that, like,
they don't is one thing. And thefact that you you're having
people, like, immensely powerfulpeople politically like the
(30:44):
president of the ABA saying,hey, don't complain too loudly
about this.
Mhmm. Does make you feel likeyou're going crazy. And, it's
just one of those things where Idon't know. There's some
element, there's this largeelement of people that are
taking this all the wrong wayand way too far and and should
(31:05):
do a better job educatingthemselves as citizens about how
this stuff works. But there'salso a a big contingent of the
problem here that I think is,you know what, if you are
worried about people'smisconceptions about how you
broadly, the judiciary, works,get yourself out there and
educate the people.
Mhmm. Don't blame me.
Danessa Watkins (31:25):
I hear
Jack Sanker (31:29):
you.
Danessa Watkins (31:34):
Alright. Now taking us to, unfortunately, a
little bit of a darker story.This is the school shooting that
occurred back in November 30,2021, where 15 year old Ethan
Crumley, he actually committedthe deadliest school shooting in
Michigan's history, killing 4students, wounding 6 students,
(31:56):
and also a teacher. Now therecent story is that both of his
parents were just sentenced to10 to 15 years for shooting
occurred, the Oakland Countyprosecutor on the case, Karen
(32:23):
after this shooting occurred,the Oakland County prosecutor on
the case, Karen McDonald, sheactually delivered the shocking
news that she was pursuingcharges against the parents,
only a few days after theshooting. And just to give you a
little bit of an idea of thelandscape, so Oxford, Michigan,
politically speaking, is largelypurple.
(32:45):
There were many gun rightsadvocates in the town that did
not like the potential for a newprecedent being set that would
put additional responsibilitieson gun owners. So in Michigan,
with very limited exceptions,minors are not allowed to
possess guns, but there is noMichigan law that would require
(33:05):
owners to keep guns locked andaway from kids. So by
comparison, I believe it's now23 states plus Washington DC
that have some form of a securestorage law. And, I mentioned
that only because a 2019assessment by the US Department
of Homeland Security found thatguns came from the home of a
(33:27):
parent or close relative in 76%of school attacks where firearms
were used. And in about half ofthose, the firearms were easily
accessible.
So all of this backgroundcertainly played a major role in
the prosecutor's decision, andnot to mention the sad reality
that the US endures the mostmass shootings worldwide. So
(33:50):
fast forward to this case. EthanCrumley pleaded guilty despite
being 15, under Michigan law,the judge was able to determine
through evidentiary hearingswhether he, as a minor, should
(34:10):
be eligible for an adultsentence. So at this point in
Ethan's case, while the hisdefense team attempted to get
him tried as a minor, there wasa clear conflict that emerged
between him and his parents.Ethan's attorney said that Ethan
was deeply neglected by hisparents and put forth evidence
from a psychologist thatdescribed Ethan as a feral
(34:31):
child.
Now despite these His
Jack Sanker (34:34):
attorney took that position?
Danessa Watkins (34:36):
His, his attorney hired a psychologist
who did an assessment, andthat's how they described him.
Oh. So despite best efforts, thecourt found that Ethan's
possibility of rehabilitationwas slim, that the crime didn't
bear the hallmarks of youth, andthat Ethan continues to be
(34:56):
obsessed with violence evenwhile in jail. So they ended up
trying him as an adult. And inDecember of 2022, Ethan was
sentenced to life in prisonwithout parole, which is the
automatic sentence for adultscharged with first degree
murder.
And this is actually theharshest sentence in Michigan
because it does not have thedeath penalty. So now despite
(35:20):
the fact that Ethan was tried asan adult, his parents, they
still continued these chargesagainst them for involuntary
manslaughter. Now in the past,there have been situations where
parents have been held held,responsible for the acts of
their children, and I'll I'llget into that in a little bit
more detail. But that's why thiscase is distinguishable because
(35:42):
they found that Ethan wasessentially emancipated from his
parents in the eyes of of thesentencing and how him But
Jack Sanker (35:50):
were the parents were nonetheless responsible for
Danessa Watkins (35:52):
Right. They still they the state still
continue to try to press thesecharges against them. So,
obviously, a lot came out in inEthan's sentencing hearing. A
lot of evidence that was thenalso used in the case against
the parents. The defense for theparents, and they were, tried
separately, which actuallycreated another conflict
(36:15):
because, you know, there were alot of witnesses who described
the mom as being this tough, youknow, rough edged, the type of
person that doesn't believe intherapy, you know, wasn't gonna
take seriously her son's issuesof mental health, whereas the
dad was a little bit they almostdescribed him as, like, meek,
(36:37):
you know, friendly, meek.
The mom wore the pants is is thepicture that started to emerge.
So they did have to try themseparately, and I think probably
the prosecutors hope was thatmaybe the dad would throw the
mom under the bus a little bit.
Jack Sanker (36:54):
The well, also, like, I'm assuming that the the
mom and dad were at leastinvolved in coordinating the
defense of their kid, or involvepainting a picture of, would
involve painting a picture of,you know, he's he he is a a
(37:16):
minor. It should be tried as achild because the parents had, I
guess, some responsibilitycontrol or whatever that that
you would prove there over it,which would be in in conflict
with head's attorney, you wouldsay that that I don't know. The
kid was a bad egg and it wasn'tour fault.
Danessa Watkins (37:36):
Yeah. Yeah. That's a good point. I I there
were conflicts spread all acrossthis case, and which is actually
kind of sad, you know, because,I mean, obviously, the family is
gonna be broken up in general asa result of a tragedy like this.
But, yeah, the way that theprosecutions came out, you know,
certainly pinned them againsteach other even more.
Yeah. And I did read somewhere,this mom was not very savvy
(38:00):
about how putting stuff onsocial media could come back to
bite her, or even texting,putting anything in text in
general. I've People need tostop doing it. Oh my gosh. It's
like, have you not watched the4th the first 48?
Like, everything comes out. But,yeah, she I think there was a
text message that she had sentto a friend. She immediately
(38:22):
went into hiding her and herhusband. She texted something
like, Ethan's on his own now. Ineed to protect myself.
Jack Sanker (38:28):
Okay.
Danessa Watkins (38:30):
So, yeah, it's a there there was a lot of bad
evidence that came out againstthe parents. So, you know, and
in this case, it was probablythe right case for pursuing this
this novel type of prosecution,just because of how really sad
(38:53):
this evidence is. So leading upto the shooting, how the gun
came into play was it wasactually a early Christmas
present from the parents. Thefather bought it, with his son
with him, and the the prosecutorargued that they purchased this
at a time where there were clearsigns that their son's mental
(39:15):
health was deteriorating andthat he was potentially violent.
So the gun was purchased 4 daysbefore the shooting.
The mother posted pictures andimages of her and her son at the
shooting range. But even priorto that, so leading up to his
15th birthday, Ethan begantexting his mother about his
(39:37):
paranoia. He was saying that hewas hearing things. He thought
people were in the house. He wasscared to be alone.
Jack Sanker (39:43):
You know, all of
Danessa Watkins (39:43):
these texts were introduced, the parents'
trial, as well as Ethan'sjournal, where he wrote about
getting no help for his mentalhealth where he wrote about
getting no help for his mentalhealth problems. Quote, I wanna
I want help, but my parentsdon't listen to me, so I can't
get any help, end quote. Hewrote about his desire to watch
students suffered, thelikelihood that he would spend
(40:04):
his life in prison. So, youknow, it's it's one of those
things where I know as a kid, Iwas like, mom, don't read my
diary. But now as a parent, I'mlike, I'm probably gonna be
checking in on things.
You know? And I
Jack Sanker (40:17):
mean yeah. Because there there's also I know
evidence. I mean, I know thatthe school was involved in one
point or another. He, because hewas like
Danessa Watkins (40:24):
Well, yeah. Let me get to that part. That's
actually the worst part.
Jack Sanker (40:27):
In the dark here is, I think, the point.
Danessa Watkins (40:29):
Yeah. And it well and after I say this,
you'll understand. I'm I'mwondering why there wasn't some
liability potentially on theschool as well. But, so the day
of the shooting, Ethan made aghastly drawing of a gun and a
wounded man on his mathassignment, and then he added
the phrase, the thoughts won'tstop. Help me.
(40:50):
My life is useless. So,obviously, the teacher took it
seriously. The parents werecalled to the school for a
meeting, and the school pushedthem to take Ethan home, but
they didn't demand it. The theschool counselor was concerned
that Ethan was having suicidalideations, and they told the
(41:10):
parents they need to seek helpfor him within 48 hours. But the
parents refused to take himhome, and the school couldn't
enforce it.
And they said, you know, maybebeing in a school setting is is
the best thing for him at thistime. So they sent him back to
class. They didn't check hislocker. They didn't check his
bag. The parents also did notdisclose that they had just
(41:35):
purchased him a handgun, 5 daysearlier.
Jack Sanker (41:38):
Just bonkers.
Danessa Watkins (41:40):
Yeah. So
Jack Sanker (41:41):
And to not be like, you know what? Is the handgun
still in the drawer? Like, didyou look. Let's
Danessa Watkins (41:47):
Like, maybe maybe let's take a pause, go
home, and check. Just you know?
Jack Sanker (41:50):
I mean, I of course, all of this is 2020
Right. With respect.
Danessa Watkins (41:54):
Right.
Jack Sanker (41:55):
But
Danessa Watkins (41:55):
yeah. But yeah. So he returned to class. And
then later that afternoon walkedout of a bathroom with a gun and
began firing. Investigatorsfound an empty gun case and
empty ammunition box on theparent's bed, as well as a cable
that could have been used tolock the gun, but it was still
(42:16):
in its package unopened.
Jack Sanker (42:19):
Show. Yeah. That's brutal. I I do. I am interested.
And I I'd be surprised if theschool is not subject
Danessa Watkins (42:36):
it. So I, you know, I it just kind of always a
pop that a thought that poppedinto my head. So it could be
Jack Sanker (42:42):
Your instinct here is is correct that, well, wait a
second. You know, you knew, youknow, you knew or should have
known that this kid posed athreat. The evidence of that is
that you called his parents andto tell them exactly that, and
you didn't do, x y z to presentthis or to prevent this
shooting, such as do a routinelocker or backpack check, which
they do all the time for, like,like, I don't know, for,
(43:04):
obviously, for, like, drugs andthings like that. But, like,
when I was in middle school, ifyou, like, were suspected of
having Pokemon cards, like,Pokemon cards in school. So
Yeah.
The point is is that schools,like, have this capacity, and
Danessa Watkins (43:19):
For sure.
Jack Sanker (43:20):
We do it all the time for so yeah. You I think
that they're, it's interesting.I don't think that the school
ought to be subject to criminalliability, probably not. And
there's I don't think that theycould be. But I wouldn't be
surprised if there is there mayalready be, civil actions
pending involving the school.
Danessa Watkins (43:40):
Yeah. I mean, my my mom is actually, she was a
guidance counselor at my highschool for 30, 35 years. And,
yeah, there were definitelytimes where a student, you know,
came in and had some type of youknow, showed signs of violence,
and she shut down her whole dayand spent it with that kid. You
(44:00):
know? Clear the schedule.
This is my priority.
Jack Sanker (44:03):
Oh, yeah. Well, I I went to a metal detector school,
so we all the guns got gotclocked at the door. You think
I'm joking, but, yeah, they did.But the Pokemon cards were the
big thing. But I might I'msaying that as a bit as a joke,
but, like, schools routinely,intervene in these scenarios
over, like, what they deemcontraband, you know, which is,
(44:23):
I think, like, drugs or but alsojust, like, things that like, it
used to be you could have a cellphone.
Right? And they would be like,oh, you have a cell phone in
your locker. Like, we have totake that till the end of the
day or whatever. Stuff like thatwould get you in trouble. So it
is it does seem like they'vedropped the ball here.
Danessa Watkins (44:39):
Yeah. Yeah. Well, so earlier this year in
January, the mother stood trial.She, she ended up being found
guilty on all four counts ofinvoluntary manslaughter after
the jury deliberated for just 11hours. And then in March, the
(45:00):
father had a week long trial,and he was also found guilty on
all four counts of involuntarymanslaughter.
So the 15 years is the maxsentence for that crime in
Michigan, and the prosecutorasked for 10 to 15 years for
both of the parents. And then onApril 9th, the judge sentenced
(45:20):
both parents each 10 to 15 yearsin prison. So, you know,
certainly, there was noprecedent for this case. The
Crumbleys were the first parentsto be held directly responsible
for a school shooting carriedout by their child, which
essentially turns on its headthe Now I found a article in the
(45:47):
70 4, and they interviewed IkaoYankao, a University of Michigan
law professor. He voiced someserious concerns about this
saying that going forward, if wehave other parents that are
being charged in connection withshootings that are acted out by
their children, then thisCrumley conviction may make them
(46:08):
more likely to accept a pleadeal behind closed doors.
So so he said court
Jack Sanker (46:14):
More likely to lock their guns up.
Danessa Watkins (46:16):
Oh, well, yeah. I mean, that's the other side of
it. So this this is just giving,you know, the the side of it, I
guess, more from the legalperspective of
Jack Sanker (46:22):
how prosecutors could start to use
Danessa Watkins (46:22):
this as a prosecutors could start to use
this as a sword. So what he saidwas prosecutors will be tempted
to use this power in ways thatwe don't see. A prosecutor is
going to sit across from aparent when people are crying
out for somebody to be heldaccountable, and the prosecutor
is going to be able to say, I'moffering you 3 to 5 years in
(46:43):
prison. But if you don't takethis deal, I will prosecute for
15 years. Evan Bernick, aprofessor at Northern Illinois
University College of Law, hadsimilar concerns that he voiced
to Al Jazeera.
He said there's a saying, hardcases make bad law, which means
that there's always an initialhorrifying case that's used to
(47:04):
justify the expansion ofcriminal law. Then there are a
whole class of cases that youdon't see, that you don't get
national attention, end quote.And then he talked about how he
could see that this case couldbe used against the marginalized
communities. You know, thoseparents who are working 3 jobs,
you know, trying to make endsmeet, and then their kid does,
(47:27):
you know, some it doesn't needto be homicide, but, you know,
does something criminal. Right.
They didn't they weren'tsupervising them because
they're, you know, trying to putfood on the table. And now, you
know, the the community's gonnacry out, and so the prosecutor's
gonna say, hey. You know, takethis take this plea deal.
Jack Sanker (47:44):
I think at a the the fact that this was
manslaughter conviction. Right?
Danessa Watkins (47:53):
Involuntary manslaughter.
Jack Sanker (47:54):
Yeah. That's that's so I mean, that that's a bit
that's so interesting. I thinkif the state of Michigan is if
the state of Michigan if you'relistening, Michigan, it could
actually, like, narrow this in away that still incentivizes
parents because I I think takinga broad brush like a voluntary
manslaughter and then applyingit to the facts of, like, this
(48:16):
case, but then opening it up toother things, slaughter and then
applying it to the facts of,like, this case, but then
opening it up to other thingsdown the road, as you mentioned,
does, kick the door open forprosecutorial misuse.
Danessa Watkins (48:30):
Mhmm.
Jack Sanker (48:31):
But, if you think if the state of Michigan has a
compelling interest inpreventing school shootings or
whatever or just preventing anyshootings, there is, you know,
the the argument that gun safetyadvocates have been making for
decades, which is, registrationof the firearm. And if your if
your firearm and unless andwe'll we'll give broad
(48:53):
exceptions to the rule here. Butif if your firearm is is used to
commit a crime, there's astatutory violation of that. And
it's I mean, maybe it's prisontime, maybe it's fine or
probation or whatever. And Imean, unless it's, like, stolen
from you or, you know, there'ssome excuses to how it end up in
someone else's hands.
But I think something like thatapplied to these facts here
would make a lot more sense andthen also prevent prosecutors
(49:14):
from having the discretion toheap criminal charges on the
parents who who maybe don'tdeserve it. I'm not saying these
parents in this case didn't, bythe way.
Danessa Watkins (49:22):
Right. But it yeah. It's it's like the
professor said that, you know,you take these egregious cases
and then but they do set theprecedent going forward for
cases that maybe, you know, theevidence isn't so glaring that
that the parents dropped theball. Now there are, parental
responsibility laws nationwide,and those do impose civil or
(49:43):
criminal liability on adultsunder the premise that their
failures to take control asparents led to their kids' bad
acts. However, these laws aregenerally premised on the idea
that the child who committed thecrime is unemancipated.
So it's it's kinda like avicarious liability Yeah. There
is adult. So the law adult. Sothe law considered him a legal
(50:11):
agent responsible for his ownactions and yet still found that
the parents, you know, wereapproximate cause of these
deaths.
Jack Sanker (50:19):
Yeah. Which is a bit tenuous the more you think
about it, even if you agree orare agreeable to the outcome
here.
Danessa Watkins (50:28):
You know, on the other end of the spectrum,
certainly for gun controladvocates and the parents of
those children who have beenkilled in their classrooms, this
landmark trial outcome was wascertainly welcomed.
Organizations such as EverytownFor Gun Safety say that verdicts
like these could have adeterrent effect, help prevent
(50:50):
future mass shootings, you know,serving a warning about safely
securing guns, essentially, allthe things that you said. But,
you know, even in the wake ofthese these new laws that are
coming out, we don't have theevidence about whether they're
actually preventing crimes. Youknow, so hopefully, there will
start to be some research onthose and and what the effects
(51:12):
are, especially in the wake ofthis decision. And I'm sure, you
know, there it's gonna continueto to have effects rippling
through our system.
So,
Jack Sanker (51:22):
what's interesting is that the giving the
perspective on on the kinda 2 arights that that those people
are so concerned about Mhmm.Because there's no prior
restraint on, you know, purchaseor or or added regulations to
(51:44):
guns or gun purchases orownership or whatever. Mhmm.
It's just, added consequencesfor when things go wrong, which,
you know, ought to be selfregulating, but, you know,
that's not exactly how everyoneworks. So it'll be interesting
to see I have not seen whetherthis has been kind of played out
(52:05):
in the various media spheres as,you know, either good or bad for
gun owners who or gun rightsadvocacy people Mhmm.
Who tend to take positions onthese cases.
Danessa Watkins (52:17):
Yeah.
Jack Sanker (52:18):
I just haven't seen, like, you know, those
groups being, like, this is,good or bad for us. But I I it
is less burdensome to give theprosecutors discretion to do
this if you wanna regulate thistype of thing, but is bad for
all the other reasons we talkedabout.
Danessa Watkins (52:33):
Yeah. Yeah. I mean, I think we're it's it's a
continuing problem in ourcountry. I think we're looking
for, obviously, ways to, deterthis type of violence, but also,
you know, new people to blame. Idon't know.
I mean, I know you covered Ithink it was in episode 11,
(52:53):
Sandy Hook, and then episode 26,the Ivaldi Tragedies. But I and
I think those discussions werefocused more on the gun
manufacturers. Mhmm. But, youknow, there there have been no
consequences to that end ofthings. So, you know, I guess
this is just the the nextattempt to try to curtail this.
(53:19):
So that's our show. Thank youfor listening. Remember, you can
find us Litigation Nationwherever you get your podcasts,
Apple, Spotify, YouTube. Pleasesubscribe,
Welcome to litigation nation. I'm your
host, Jack Sankar, along with myco host, Anessa Watkins.
Reminder, this is the podcastwhere we talk about the most
interesting and important legalnews of the past couple of
weeks. For today's stories, wehave an update on the class
action suit related to the EastPalestine, Ohio train derailment
in 2023. The president of theAmerican Bar Association says in
(00:28):
a statement that lawyers have aduty to defend judges from
attacks on their character.
And, Danessa, what do you have?
Danessa Watkins (00:35):
Today, I'm gonna cover 2 cases out of
Michigan. The first, a federaljudge recently found that local
zoning regulation that wouldprevent wineries from hosting
weddings or other gap gatheringsis actually not an
unconstitutional restriction oncommercial speech or an
infringement on propertyinterests. And then also in
Michigan, the parents ofteenager Ethan Crumley, who is
(00:59):
the, youngster who carried outthe deadliest school shooting in
Michigan's history. Well, hisparents were recently sentenced
to 10 to 15 years in prison forinvoluntary manslaughter. And
this is a defining moment in therecent push to hold parents
accountable for the criminalactions of their
Jack Sanker (01:15):
children. All that more, here's what you need to
know. The class action suitrelated to the East Palestine,
Ohio train derailment andchemical spill ordeal from 2023,
just settled this past Mondayfor a gross total of
(01:36):
$600,000,000. On April 9th,Norfolk Southern, and the class
action attorneys for the classfiled a joint motion in the
Northern District of Ohio,notifying the parties that they
had agreed to a 600 $1,000,000settlement in principle. The
final terms of the deal were inthe works.
The class of claimants includesanyone within a 10 mile radius
(01:57):
of the derailment for personalinjury claims and then a 20 mile
radius for any other claims. Thesettlement is being funded by
Norfolk Southern mostly alongwith the railcar owners, GATX
Corp, Trinity IndustriesLeasing, and the chemical
company, for the vinyl chloridethat was inside the tankers that
spilled and we also have thosehorrible images all over social
(02:18):
media, Oxy Vinyls LP. Quotingfrom a law 360 piece on the
news, quote, Norfolk Southernsaid that it has negotiated the
proposed deal as part of itsongoing efforts to make it right
for the people of East Palestineand the surrounding communities
in a Tuesday statement on theproposed settlement in
principle. The agreement isdesigned to provide finality and
(02:40):
flexibility for settlement classmembers, the company said.
Individuals and businesses willbe able to use compensation from
settlement in any manner theysee fit to address potential
adverse impacts from thederailment.
This could include health careneeds, medical monitoring,
property restoration anddiminution, and compensation for
any net business loss, unquote.Good for the town and the people
(03:02):
affected, I suppose. However, Iit's it's worth noting dollars
$1,000 per person.
Danessa Watkins (03:14):
I was just gonna say, I mean, I don't do
class action work, but I'vealways been curious about how
they take these largesettlements and divvy them up.
You know, whose responsibilityis that? And I'm sure you have
to submit claims and, you know,provide some evidence of your
damages. But, yeah, certainly,6,000 per person is not gonna
cut it here.
Jack Sanker (03:35):
Yeah. You know, I so on the first part, the how
the how are these settlementfunds administered? Typically,
the there's a trust that's setup as part of the deal that's
usually being administered by,the funders of the settlement.
And so that those trustees willbe evaluating the claims and and
they'll agree on the frameworkfor how those claims get
(03:56):
submitted. So, you know, forexample, there's a a lot of
there's a lot of funds still outthere from the asbestos cases
going back to, like, 19eighties.
And if you want to submit aclaim for asbestosis or
mesothelioma or whatever, youtypically have to provide some
type of medical documentationlike a, scan films that shows,
(04:16):
you know, something in yourlungs or whatever, as well as
affidavits and things like thatthat show that you would have
been exposed to this chemical inthe first place. I imagine it'll
be something similar like that.The one thing about these
Palestine chemical spill, isthat I it's $600,000,000. It's a
lot of money. But I think we areremarkably lucky that this
(04:38):
wasn't worse than it could havebeen.
By all accounts, at leastaccording to the EPA, the NTSB,
and some of the I know that theprivate universities that are in
the area, like Carnegie Mellon,I think, and a few others that
have been studying this, havesaid for I think for the most
part that the that the water andair and all that stuff is fine.
(05:02):
People aren't being exposed toanything higher than what they
were. However, the actual, like,explosion itself, all that
happened in a relatively remotearea of Western Ohio. And this
train, if I recall, was, was onits way to or was coming from, I
(05:22):
can't remember which,Cincinnati. And then eventually,
I think would have ended up herein Chicago.
So had it blown up in one ofthose places, or an even a more
densely populated suburb orwhatever, you would see a lot
more, you know, damage and andinjury and things like that. And
this you know, the the counteror the analog to this that
(05:44):
everyone was upset about at thetime, if anyone remembers back
in 2012, there was a tanker thatblew up in in Quebec, which
killed, dozens so we managed toavoid that here. And, you know,
hopefully, the folks in EastPalestine and and around there
are gonna be made at leastsomewhat whole by the
(06:05):
settlement, but it could havebeen way worse. That's that's
sort of my takeaway from this.And and I as someone who was I
was at the NTSB hearings in EastPalestine, we were involved in
some of the work around this,not the class action case, but
some of the other stuff.
It was just apparent, like, howmuch worse this could have been.
(06:26):
If they had invented the tankerat the right time, it could
have, you know, been a biggerexplosion, all sorts of stuff
like that. So, just bulletdodged here. Mhmm.
Danessa Watkins (06:37):
Well and, hopefully, I'm sure, you know,
certain people will get morethan 6,000. Some people will get
less. So, hopefully, they sendthe money where it's needed
most.
Jack Sanker (06:46):
Yeah. I mean, not everyone's gonna it boils down
to. I don't I don't think Iqualify for a claim for having
spent 5 days there for the NTSBhearings, but, you know, it's
the 2nd episode in a row that II've theorized that I should
just start joining classactions. Yeah. So in any event,
I I'm sure that the people inEast Palestine are probably
(07:07):
happy to get this done.
I'm sure that the class action,the lawyers who put this
together are thrilled with theirfee. And, Norfolk Southern
hopefully has learned a lessonhere and, we'll let this happen
again.
Danessa Watkins (07:23):
Okay. So my first story I'm covering today
involves a lawsuit that wasfiled by several wineries
located in the PeninsulaTownship in Traverse City,
Michigan. Now to provide somegeographic reference. So, when
looking at a map, Michigan isshaped like a min with the thumb
facing East and Traverse Citywould then be located at about
the tip of the ring finger. SoPeninsula Township, true to its
(07:47):
name, is a peninsula and it jutsinto Grand Traverse Bay, which
is part of Lake Michigan.
And that peninsula is full ofagricultural sites. So there are
vineyards with rows of grapevines, lavender farms,
nurseries, fruit stands,protected parks, all surrounded
by 3 sides of lake. So it'sreally a gorgeous part of the
state.
Jack Sanker (08:08):
The Napa Valley of the Midwest, if you will.
Danessa Watkins (08:10):
Absolutely. I've actually been to Traverse
City. I have not been to thepeninsula, but, just from the
pictures I saw, I mean, this isa location where you could see
people wanting to host weddingsand other types of events. So
our plaintiff here, thewineries, they sued Peninsula
Township for severalrestrictions and regulations
(08:32):
that were put in place via thePeninsula Township Zoning
Ordinance. There wereregulations on advertising, what
type of bar and restaurantoperations they could have,
prohibitions on amplified music,and then a prohibition on
hosting events such as recentlygot set for trial on April 29th.
(08:56):
And on April 5th, the districtjudge entered a ruling on the
party's cross motions forsummary judgment. So one part of
the ruling address thisordinance prohibition on
wineries using their space forweddings and receptions and
other social functions for hire.The The judge actually entered
summary judgment against thewineries on their claim that
(09:18):
this zoning ordinance regulatedtheir protected commercial
speech under the FirstAmendment. The threshold,
question for First AmendmentAmendment claims like these is
whether ordinance regulatesprotected commercial speech or
expressive conduct.
Jack Sanker (09:36):
Is there a distinction between commercial
speech and personal speech inthis context?
Danessa Watkins (09:41):
Well, yes. So in this case, the commercial
speech has to hit certaincriteria, has to be an
advertisement, has to refer to aspecific product or service, and
then the speaker has to have aneconomic motivation for making
it. The reason why thatdistinction matters is the level
of scrutiny that applies.
Jack Sanker (09:58):
I see. So there are different first amendment
standards.
Danessa Watkins (10:01):
Correct.
Jack Sanker (10:01):
Okay.
Danessa Watkins (10:02):
Yep. So commercial speech will have a
lower level of scrutiny than
Jack Sanker (10:06):
Makes sense.
Danessa Watkins (10:07):
Personal speech. Now what the plaintiffs
tried to argue here is thattheir what they call agritourism
is actually a type of moderncommercial advertising. So in
Michigan, the Department ofAgriculture has described this
term agritourism as follows.Quote, agritourism is a niche
(10:28):
form of tourism and defines theplaces where agriculture and
tourism connect, including anytime a farming operation opens
its doors to the public invitingvisitors to enjoy their products
and services. Agriculture andtourism are leading economic
drivers in Michigan.
Agritourism offers farmers apath to diversification of their
business to include value addedproducts and activities, which
(10:49):
helps them better withstandthings like poor weather
conditions and marketfluctuations. They say, if they
they say if they host a wedding,for example, more patrons are
going to be on their property.They're gonna see their other
(11:11):
products, and the wineries willhave an increase in their sales
because of that. The court,however, said that hosting
weddings and other events doesnot automatically convert these
plaintiffs commerce orientedactivities into speech, and you
can't just slap this termagritourism label onto these
(11:31):
events. So if the court were toapply this broad term
agritourism as a as a type ofcommercial speech, then
essentially anytime a patronstep foot on a wine property,
that winery would be engaging incommercial speech.
And according to the court, thatview approaches the limitless
view of speech that the SupremeCourt has expressly disavowed.
(11:54):
So these because these events,weddings, reunions, baby
showers, because they don'trefer to a specific or discrete
type of commercial transaction,but at best, they really just
refer to the winery and theirproducts generally. It's not
gonna be a type of protectedspeech under the first
(12:15):
amendment. So regulating eventsdoes not implicate first
amendment protections. Now theother part of the decision
focused on this claim under thetakings clause, and this part
was actually a little bit moresurprising to me.
So the ordinance well, what thewineries are claiming is that
the ordinance operates as ataking of their rights to
(12:37):
operate their restaurants andkeep certain hours of operation,
playing music for their guests,and use of their their licenses
under the Michigan liquorcontrol code. So the 5th
amendments taking clauseprotects private citizens from
the government taking theirproperty for public use without
just compensation. And oneexample of a taking is, when a
(13:01):
government invokes a regulationthat denies a property owner the
full use of their property.
Jack Sanker (13:06):
There you go.
Danessa Watkins (13:06):
So I think this was probably their best argument
that they put forth. But onceagain, the court found for the
township. It said there is noprecedent for recognizing that a
liquor license is a propertyinterest protected by the
takings clause.
Jack Sanker (13:21):
So the the lice having a license is not a
property interest for purposesof the takings clause. That's
interesting. I mean, have a lawlicense. Right?
Danessa Watkins (13:31):
Mhmm.
Jack Sanker (13:32):
You have a license. Doctors have their medical
licenses. I I suppose this wouldimply that those licenses could
be revoked without due process.
Danessa Watkins (13:50):
I don't know if I would go that far in a reading
of this. And it's also it's it'shard to compare apples to
oranges because, obviously, aliquor license is going to have
certain restrictions on itanyway. I think in Michigan,
there are limits on when you canactually sell Sure.
Jack Sanker (14:05):
Yeah.
Danessa Watkins (14:06):
Alcohol in the state and
Jack Sanker (14:07):
Obviously, you can't sell the minors. You
Danessa Watkins (14:09):
Right. Right. So I think the government has
allowed restrictions on thatlicense and, apparently, is is
finding that furtherrestrictions on it, or
restrictions that may affect theability to use that license. But
it's, you know, it's it'sdifferent because here it's, you
know, you can't play music to acertain extent. Okay.
(14:29):
Well, does that your patronagethat are
Jack Sanker (14:32):
Probably.
Danessa Watkins (14:33):
You know, you drinking your liquor or
whatever? I mean, yes. But, thecourt's not willing to take it
that far.
Jack Sanker (14:39):
Yeah. And then also there's, you know, the fact that
the the local, municipality hereis, regulating the state issued
liquor license effectively.
Danessa Watkins (14:53):
Setting more setting more restrictions
locally, yes, than the than theywould at a state level. And, of
course, they're looking at itfrom community standards. You
know, this is a fairly smallcommunity, and so they wanna
make sure that there aren't anynuisances from noise or traffic.
And so they are, I guess,protecting, you know, the
(15:13):
locals, from having to deal withwhatever these wineries opening
themselves up to, you know, 200person events could bring.
Jack Sanker (15:21):
I guess the flip side of this is is probably, you
know, probably ridiculous. Like,if if if, zoning regulations for
these types of things were foundto be in violation of either the
state or federal constitution,you know, how how does that play
out, like, in a crowded city,for example? Like, how does how
do the all of a sudden, how doesthe building code get enforced
(15:43):
and everything else? So I guessit's not that surprising when
you think about it in the macrolevel.
Danessa Watkins (15:48):
Yeah. I I think though it was, you know, an
interesting argument to push.
Jack Sanker (15:53):
From the first amendment perspective, for sure.
Danessa Watkins (15:55):
Yeah. So, essentially, this ruling just
significantly limited whatissues are gonna be, heard at
trial. The wineries are stillgonna be able to bring their
case on merchandising andadvertising rules. But, these
these issues of commercialspeech and and the takings
(16:16):
clause, they got thrown out. Sowe'll see what happens with
this.
Jack Sanker (16:27):
Not exactly a free speech story, but kind of. The
president of the American BarAssociation said in a statement,
just this past Monday here inChicago, she warned of the the,
threats and rhetorical and evenserious physical threats that
have been made to judges overthe past couple of years which,
(16:50):
of course have been a realproblem and, you know, in and of
themselves. It it should gowithout saying, are important.
But also talks a lot about thethe assault on the character of
judges themselves and I'll reada portion of her statement to
you. Quote, our courts andjudges are under attack serious
(17:10):
threats against judges havedoubled since 2019 with 457
serious threats targetingfederal judges across the
country in 2023.
National leaders and privatecitizens are making false
statements and argue,accusations against judges for
partisan purse impersonal gain.These attacks are no idle
matter. Often, they involvephysical threats to har of harm
(17:31):
or death, not only to the judgesbut to their families and staff.
I'll take a pause real quickright there and say all of that
should go without saying is wellbeyond the pale and not
acceptable in polite society orany serious society at all. But
it's kinda the next bit herethat is somewhat interesting for
(17:52):
me.
Going back to the quote, threatsagainst the very individuals we
have appointed or elected toadminister our judicial system
and the rule of law are nolonger wrong. They also threaten
the very fabric of ourdemocracy, judicial
independence, and the rule oflaw. All lawyers are bound by
ethical rules based on the ABAmodel rules of professional
conduct. These rules prohibitlawyers from making false
(18:12):
statements about thequalifications or integrity of a
judge. Based on these rules andto maintain the fair and
independent administration ofjustice, lawyers are encouraged
to defend judges and courts thatare unjustly criticized, un
quote.
So it's that last bit thatreally jumped out to me. There
there she's not saying, the ABAis recommending that you jump on
(18:34):
Facebook and get into argumentswith your aunts and uncles about
supreme court. Right? But Ithink she is encouraging,
attorneys and and members of thebar to, police the speech around
criticism of judges and judicialdecisions. And and I I get
generally what, she's sayinghere which is the crank theories
(18:58):
about, you know, whatever it isyou wanna say the election or,
or or whatever, we shouldprobably pipe up and and go and
say something about that.
But let's take a pause on thatfor minute. I mean, there are
and have been, over recentyears, valid criticisms, I
think, voiced at both, you know,the federal circuit court judge
(19:22):
level, but especially at thesupreme court level of people
criticizing what they perceiveas, impropriety to use a polite
word, but some people would say,you know, outright corruption.
And, this is a bit of a, fromthe ABA here, to encourage
members of the bar to kind of,like, stick up and, I guess,
(19:44):
maybe deflect or, defend certainthings like this. It's just it
struck a weird tone for me,given, you know, the standards
of free speech in this countryand everything else. Later, I
wanna read again from theremainder of the statement here.
Quote, bar associations have aspecial responsibility to ensure
(20:05):
that the public holds thejudiciary to the highest esteem.
Parenthetical, I would say thatjudges have a special
responsibility to ensure thepublic holds them to the highest
esteem. I
Danessa Watkins (20:15):
would agree with that.
Jack Sanker (20:17):
Yeah.
Danessa Watkins (20:18):
I mean, I think I I see it from both sides, I
guess. And it's it's hard for meto, you know, defend what the
Supreme Court is doing, but Ican take this, her you know,
what the ABA president istelling us. I can take it on a a
more local level, and it it didcause me so she did email this
(20:39):
out to anyone who's a member ofthe ABA who signed up for emails
because I did get it by emailtoo. And it did make me think a
little bit about as as lawyersthat, you know, the first thing
you do when you get a case, youresearch the opposing counsel,
you research the judge. Andoftentimes, I do send reports to
my clients about the judges.
(20:59):
You know, what kind of caseshave they
Jack Sanker (21:01):
Yes.
Danessa Watkins (21:01):
Had before them? You know, how did they
come down? Is there anypatterns? Like, what should we
be aware of?
Jack Sanker (21:07):
And Let's let's not mince words here. Like, when we
say we do research on the judge,we'll oftentimes, advise our
clients. This judge doesn't knowanything about this type of law.
Danessa Watkins (21:17):
Right.
Jack Sanker (21:17):
Or this judge is so plaintiff friendly or defense
friendly Mhmm. That depending onthe claim that's in front of
them, you're never gonna get afair shake.
Danessa Watkins (21:27):
Yeah.
Jack Sanker (21:28):
That's candid assessments. Like and I'm I'm
sure that there I hope thatthere are listeners here nodding
along, but maybe some of themare shocked. It it it isn't
shocking to anyone wholitigates. Right. That I could I
can I think I could speak forall of us when I say that?
Danessa Watkins (21:43):
But I think what I took though, maybe from
this morning that she put out,is that sometimes we have to be
aware of who our clients are orwho our audience is when we're
saying these things.
Jack Sanker (21:53):
Yeah.
Danessa Watkins (21:54):
You know, it's one thing for us to come to our
own conclusions, but maybethat's a takeaway for us on a
local level of, you know, maybeyou need to pay a little bit
more attention to how you wordthese things and and show a
little bit more respect for thefor the judges because, you
know, your clients aren't gonnaforget that when that bad ruling
comes down, you know, when yourmotion gets denied or whatever
(22:16):
the case may be. Oh, yeah. Youtold me. I remember you told me
from the beginning that thisjudge wasn't gonna rule for us.
And then, you know, it becomesmore of, well, you know, maybe
that ruling did have some meritto it.
And
Jack Sanker (22:26):
Oh, yeah. Yeah.
Danessa Watkins (22:26):
You know?
Jack Sanker (22:27):
Well and there's also, you know, to your point,
being aware of the audience, itit's you have to be aware of how
people are gonna perceive this.If every lawyer in your
jurisdiction is saying, man,that judge really stinks, you
know, for x y z reason. Therecould be someone that hears that
and is, like, wow. That judge isbad. You know, I should threaten
their family.
Danessa Watkins (22:48):
You're right. Okay.
Jack Sanker (22:49):
And it's, like so maybe, you know, maybe you don't
complain so loudly because youhave to understand that there
are a lot of crazy people outthere who's gonna hear this
stuff and not have any contextto put it in. Right? Like, so if
I our context, you know, that II've assigned to a certain judge
and I say, listen, this judgehas, in my opinion, certain
biases or whatever. That's inthe context of, like, every
judge in their jurisdiction onthese narrow issues. Again, I
(23:11):
think it goes without sayingthat if you're a judge who has
either been elected orappointed, there's a baseline
level of competency that you areexpected to have and that every
judge I've ever practiced beforedoes have.
You know? It's in the marginswhere you can make these
judgment calls or whatever. Butsomeone who's not in industry
or, doesn't understand that andthinks, well, just because this
(23:33):
federal circuit court judge wasappointed by Barack Obama or
Donald Trump, they will alwaysdecide the issues in favor of
those 2 political agendas. Andthat's just, like, that's never
the case. And even if you lookat those judges, they don't rule
that way, like, often.
On a particular case, they mayor may not, but it's it just
doesn't work that way. By andlarge, the judges are trying to,
(23:56):
like, be public servants, andand do a good job here. But this
whole the tone of this wholething do did kinda strike me as,
it should be illegal to make funof us. And, and, you know,
that's you're you're not allowedto make fun of us. And, and if
anyone if you overhear anyonemaking fun of us, you should you
(24:17):
should tell them to stop.
Danessa Watkins (24:18):
Oh, gosh. I don't know that I took it that
way.
Jack Sanker (24:21):
Here's well, let me let me read this last part.
Danessa Watkins (24:22):
Okay.
Jack Sanker (24:24):
Quote, every one of us must stand up for our judges
and their staffs and engage inthe civic education needed to
help our public understand howour courts work, the crucial
role education needed to helpthe public understand how our
courts work. I mean, that's yourjob, man. Sorry, but, and I I
(24:57):
understand as members of the ofthe bar, we do have obligations
to the public at large, and, andI think that, you know, everyone
in their heart of hearts triesto put on profession works. But
if the judiciary and, theadministration of justice is,
(25:19):
like, cape, and, you've youdon't have I mean, if you've
ever seen a pro se litigant incourt, you know, they are so,
disadvantaged, to the pointwhere it's I mean, they're
(25:39):
they're basically in anothercountry have with people
speaking a different language.And so that aspect of this
stuff, I think is the public'sfault, not, you know, the
private members of the barassociation.
And it just struck me it juststruck a weird tone for me to
be, like, listen. You all needto make sure that that no one's
(25:59):
making fun of our judges. Mhmm.And to which I would say, not
the judges, but, you know, fromthe top down, if you're worried
about that, I mean, maybe thosepeople who are getting
criticized, again, not deaththreats, not things like that,
but the criticism, should bedoing a better job understanding
how that process works. And Ithink one of the most shocking
(26:21):
things from the, like, the Dobbsopinion, for example, when that
got leaked, and, like, was for amoment arguments and briefs go
into and then decisions come outof.
Yeah. But, like, the Dobbsdecision arguments and briefs go
into and then decisions come outof. Yeah. But, like, the Dobbs
decision which, like, showed,like, there's drafts. There's
negotiations among the 9justices.
(26:42):
Like, they are pitching ideas toeach other. They are arguing to
each other. Mhmm. They arerecruiting each other to sign on
to different opinions andeverything. And I think people,
when they stopped and thoughtabout that for a minute, they're
like, oh my god.
I don't know how this stuff evenworks.
Danessa Watkins (26:55):
Yeah.
Jack Sanker (26:56):
I don't even know who these people are or how this
process like, there's notransparency at all. And, of
course, there's not. And I'm notsaying there should be. But if
there's no transparency at alland people don't like the
outcome, people are gonnacomplain, and and the crazy ones
among us are gonna come up withconspiracies to explain it. So I
(27:18):
I guess that's my 2¢ to justsaying, I think the ABA
president here has the rightidea, but I just I think yeah.
I don't think it's my job. Youknow? That's I
Danessa Watkins (27:31):
It is interesting how I and I I didn't
think to really talk to any ofmy colleagues about it, but how
we probably all interpreted thisin a little bit of different
ways. I just think our systemhas come under a microscope. You
know, president Trump was madeit a point to appoint as many
federal judges as possible. Youknow, and I think that caused
(27:55):
probably some people to startpaying attention. And and maybe
people didn't realize that incertain cases, judges are
appointed, that federal judgesare appointed, and also certain
state and local judges areappointed, which is different.
You know, when you here in CookCounty, our judges run for
election. They have to go outand and run an election and meet
(28:15):
the people. And, I actuallyfavor that because, you know, it
it gives you a chance toactually meet the candidates.
And, but I can see the otherside of that too where, you
know, you have the plaintiff'sbar that are putting on for a
judge or, you know, judges needto be careful. Like, they they
can very easily create this typeof, I don't know, miss
(28:40):
misconception, I guess.
And, and that's only beenfurthered to the investigations
into justice Thomas, you know,taking these lavish vacations
and so and then you start toalright. Well, why maybe that's
why he decided that case thatway.
Jack Sanker (28:53):
And and and, like, I'm not even necessarily, you
know, signing on to those, like,allegations, but we covered, it
was in episode 40. A while back,there's a federal judge who was
under a pretty a lot of scrutinyfor the judge's competency. And
(29:15):
this was a judge who, if Irecall, was in her late
seventies or early eighties. Itwas having, like, signs of,
like, cognitive issues and andthings like that, and penned a
really really, strong objectionto this because, you know, I'm a
public servant. I I've, like,given my life to this and and
(29:38):
all those things.
And, you know, in in no othercontext would that be
appropriate, to say, you know,again, like, how it should be
illegal to make fun of me. Youshouldn't be allowed to question
me. And, like, I get and I dounderstand, and I think it's
important that judges are,occupy a special role in
(29:58):
society, and that thepresumptions of integrity and
the presumptions of goodintentions and the presumptions
of competency come with the robeand for most of the time for
good reason. But, like, when youhave something like, Clarence
Thomas thing or whateverpolitical persuasion you are,
justice Sotomayor was, was, inuniversities, it was, like,
(30:24):
contingent on them buying, like,a a bunch of her books. Right?
So, like, that's a kickback, youknow. And however you wanna,
like whichever side of this youthink you're on, the broader
that your lens is at, you'relike, you know, everyone else
would get in trouble for that.Mhmm. And the fact that, like,
they don't is one thing. And thefact that you you're having
people, like, immensely powerfulpeople politically like the
(30:44):
president of the ABA saying,hey, don't complain too loudly
about this.
Mhmm. Does make you feel likeyou're going crazy. And, it's
just one of those things where Idon't know. There's some
element, there's this largeelement of people that are
taking this all the wrong wayand way too far and and should
(31:05):
do a better job educatingthemselves as citizens about how
this stuff works. But there'salso a a big contingent of the
problem here that I think is,you know what, if you are
worried about people'smisconceptions about how you
broadly, the judiciary, works,get yourself out there and
educate the people.
Mhmm. Don't blame me.
Danessa Watkins (31:25):
I hear
Jack Sanker (31:29):
you.
Danessa Watkins (31:34):
Alright. Now taking us to, unfortunately, a
little bit of a darker story.This is the school shooting that
occurred back in November 30,2021, where 15 year old Ethan
Crumley, he actually committedthe deadliest school shooting in
Michigan's history, killing 4students, wounding 6 students,
(31:56):
and also a teacher. Now therecent story is that both of his
parents were just sentenced to10 to 15 years for shooting
occurred, the Oakland Countyprosecutor on the case, Karen
(32:23):
after this shooting occurred,the Oakland County prosecutor on
the case, Karen McDonald, sheactually delivered the shocking
news that she was pursuingcharges against the parents,
only a few days after theshooting. And just to give you a
little bit of an idea of thelandscape, so Oxford, Michigan,
politically speaking, is largelypurple.
(32:45):
There were many gun rightsadvocates in the town that did
not like the potential for a newprecedent being set that would
put additional responsibilitieson gun owners. So in Michigan,
with very limited exceptions,minors are not allowed to
possess guns, but there is noMichigan law that would require
(33:05):
owners to keep guns locked andaway from kids. So by
comparison, I believe it's now23 states plus Washington DC
that have some form of a securestorage law. And, I mentioned
that only because a 2019assessment by the US Department
of Homeland Security found thatguns came from the home of a
(33:27):
parent or close relative in 76%of school attacks where firearms
were used. And in about half ofthose, the firearms were easily
accessible.
So all of this backgroundcertainly played a major role in
the prosecutor's decision, andnot to mention the sad reality
that the US endures the mostmass shootings worldwide. So
(33:50):
fast forward to this case. EthanCrumley pleaded guilty despite
being 15, under Michigan law,the judge was able to determine
through evidentiary hearingswhether he, as a minor, should
(34:10):
be eligible for an adultsentence. So at this point in
Ethan's case, while the hisdefense team attempted to get
him tried as a minor, there wasa clear conflict that emerged
between him and his parents.Ethan's attorney said that Ethan
was deeply neglected by hisparents and put forth evidence
from a psychologist thatdescribed Ethan as a feral
(34:31):
child.
Now despite these His
Jack Sanker (34:34):
attorney took that position?
Danessa Watkins (34:36):
His, his attorney hired a psychologist
who did an assessment, andthat's how they described him.
Oh. So despite best efforts, thecourt found that Ethan's
possibility of rehabilitationwas slim, that the crime didn't
bear the hallmarks of youth, andthat Ethan continues to be
(34:56):
obsessed with violence evenwhile in jail. So they ended up
trying him as an adult. And inDecember of 2022, Ethan was
sentenced to life in prisonwithout parole, which is the
automatic sentence for adultscharged with first degree
murder.
And this is actually theharshest sentence in Michigan
because it does not have thedeath penalty. So now despite
(35:20):
the fact that Ethan was tried asan adult, his parents, they
still continued these chargesagainst them for involuntary
manslaughter. Now in the past,there have been situations where
parents have been held held,responsible for the acts of
their children, and I'll I'llget into that in a little bit
more detail. But that's why thiscase is distinguishable because
(35:42):
they found that Ethan wasessentially emancipated from his
parents in the eyes of of thesentencing and how him But
Jack Sanker (35:50):
were the parents were nonetheless responsible for
Danessa Watkins (35:52):
Right. They still they the state still
continue to try to press thesecharges against them. So,
obviously, a lot came out in inEthan's sentencing hearing. A
lot of evidence that was thenalso used in the case against
the parents. The defense for theparents, and they were, tried
separately, which actuallycreated another conflict
(36:15):
because, you know, there were alot of witnesses who described
the mom as being this tough, youknow, rough edged, the type of
person that doesn't believe intherapy, you know, wasn't gonna
take seriously her son's issuesof mental health, whereas the
dad was a little bit they almostdescribed him as, like, meek,
(36:37):
you know, friendly, meek.
The mom wore the pants is is thepicture that started to emerge.
So they did have to try themseparately, and I think probably
the prosecutors hope was thatmaybe the dad would throw the
mom under the bus a little bit.
Jack Sanker (36:54):
The well, also, like, I'm assuming that the the
mom and dad were at leastinvolved in coordinating the
defense of their kid, or involvepainting a picture of, would
involve painting a picture of,you know, he's he he is a a
(37:16):
minor. It should be tried as achild because the parents had, I
guess, some responsibilitycontrol or whatever that that
you would prove there over it,which would be in in conflict
with head's attorney, you wouldsay that that I don't know. The
kid was a bad egg and it wasn'tour fault.
Danessa Watkins (37:36):
Yeah. Yeah. That's a good point. I I there
were conflicts spread all acrossthis case, and which is actually
kind of sad, you know, because,I mean, obviously, the family is
gonna be broken up in general asa result of a tragedy like this.
But, yeah, the way that theprosecutions came out, you know,
certainly pinned them againsteach other even more.
Yeah. And I did read somewhere,this mom was not very savvy
(38:00):
about how putting stuff onsocial media could come back to
bite her, or even texting,putting anything in text in
general. I've People need tostop doing it. Oh my gosh. It's
like, have you not watched the4th the first 48?
Like, everything comes out. But,yeah, she I think there was a
text message that she had sentto a friend. She immediately
(38:22):
went into hiding her and herhusband. She texted something
like, Ethan's on his own now. Ineed to protect myself.
Jack Sanker (38:28):
Okay.
Danessa Watkins (38:30):
So, yeah, it's a there there was a lot of bad
evidence that came out againstthe parents. So, you know, and
in this case, it was probablythe right case for pursuing this
this novel type of prosecution,just because of how really sad
(38:53):
this evidence is. So leading upto the shooting, how the gun
came into play was it wasactually a early Christmas
present from the parents. Thefather bought it, with his son
with him, and the the prosecutorargued that they purchased this
at a time where there were clearsigns that their son's mental
(39:15):
health was deteriorating andthat he was potentially violent.
So the gun was purchased 4 daysbefore the shooting.
The mother posted pictures andimages of her and her son at the
shooting range. But even priorto that, so leading up to his
15th birthday, Ethan begantexting his mother about his
(39:37):
paranoia. He was saying that hewas hearing things. He thought
people were in the house. He wasscared to be alone.
Jack Sanker (39:43):
You know, all of
Danessa Watkins (39:43):
these texts were introduced, the parents'
trial, as well as Ethan'sjournal, where he wrote about
getting no help for his mentalhealth where he wrote about
getting no help for his mentalhealth problems. Quote, I wanna
I want help, but my parentsdon't listen to me, so I can't
get any help, end quote. Hewrote about his desire to watch
students suffered, thelikelihood that he would spend
(40:04):
his life in prison. So, youknow, it's it's one of those
things where I know as a kid, Iwas like, mom, don't read my
diary. But now as a parent, I'mlike, I'm probably gonna be
checking in on things.
You know? And I
Jack Sanker (40:17):
mean yeah. Because there there's also I know
evidence. I mean, I know thatthe school was involved in one
point or another. He, because hewas like
Danessa Watkins (40:24):
Well, yeah. Let me get to that part. That's
actually the worst part.
Jack Sanker (40:27):
In the dark here is, I think, the point.
Danessa Watkins (40:29):
Yeah. And it well and after I say this,
you'll understand. I'm I'mwondering why there wasn't some
liability potentially on theschool as well. But, so the day
of the shooting, Ethan made aghastly drawing of a gun and a
wounded man on his mathassignment, and then he added
the phrase, the thoughts won'tstop. Help me.
(40:50):
My life is useless. So,obviously, the teacher took it
seriously. The parents werecalled to the school for a
meeting, and the school pushedthem to take Ethan home, but
they didn't demand it. The theschool counselor was concerned
that Ethan was having suicidalideations, and they told the
(41:10):
parents they need to seek helpfor him within 48 hours. But the
parents refused to take himhome, and the school couldn't
enforce it.
And they said, you know, maybebeing in a school setting is is
the best thing for him at thistime. So they sent him back to
class. They didn't check hislocker. They didn't check his
bag. The parents also did notdisclose that they had just
(41:35):
purchased him a handgun, 5 daysearlier.
Jack Sanker (41:38):
Just bonkers.
Danessa Watkins (41:40):
Yeah. So
Jack Sanker (41:41):
And to not be like, you know what? Is the handgun
still in the drawer? Like, didyou look. Let's
Danessa Watkins (41:47):
Like, maybe maybe let's take a pause, go
home, and check. Just you know?
Jack Sanker (41:50):
I mean, I of course, all of this is 2020
Right. With respect.
Danessa Watkins (41:54):
Right.
Jack Sanker (41:55):
But
Danessa Watkins (41:55):
yeah. But yeah. So he returned to class. And
then later that afternoon walkedout of a bathroom with a gun and
began firing. Investigatorsfound an empty gun case and
empty ammunition box on theparent's bed, as well as a cable
that could have been used tolock the gun, but it was still
(42:16):
in its package unopened.
Jack Sanker (42:19):
Show. Yeah. That's brutal. I I do. I am interested.
And I I'd be surprised if theschool is not subject
Danessa Watkins (42:36):
it. So I, you know, I it just kind of always a
pop that a thought that poppedinto my head. So it could be
Jack Sanker (42:42):
Your instinct here is is correct that, well, wait a
second. You know, you knew, youknow, you knew or should have
known that this kid posed athreat. The evidence of that is
that you called his parents andto tell them exactly that, and
you didn't do, x y z to presentthis or to prevent this
shooting, such as do a routinelocker or backpack check, which
they do all the time for, like,like, I don't know, for,
(43:04):
obviously, for, like, drugs andthings like that. But, like,
when I was in middle school, ifyou, like, were suspected of
having Pokemon cards, like,Pokemon cards in school. So
Yeah.
The point is is that schools,like, have this capacity, and
Danessa Watkins (43:19):
For sure.
Jack Sanker (43:20):
We do it all the time for so yeah. You I think
that they're, it's interesting.I don't think that the school
ought to be subject to criminalliability, probably not. And
there's I don't think that theycould be. But I wouldn't be
surprised if there is there mayalready be, civil actions
pending involving the school.
Danessa Watkins (43:40):
Yeah. I mean, my my mom is actually, she was a
guidance counselor at my highschool for 30, 35 years. And,
yeah, there were definitelytimes where a student, you know,
came in and had some type of youknow, showed signs of violence,
and she shut down her whole dayand spent it with that kid. You
(44:00):
know? Clear the schedule.
This is my priority.
Jack Sanker (44:03):
Oh, yeah. Well, I I went to a metal detector school,
so we all the guns got gotclocked at the door. You think
I'm joking, but, yeah, they did.But the Pokemon cards were the
big thing. But I might I'msaying that as a bit as a joke,
but, like, schools routinely,intervene in these scenarios
over, like, what they deemcontraband, you know, which is,
(44:23):
I think, like, drugs or but alsojust, like, things that like, it
used to be you could have a cellphone.
Right? And they would be like,oh, you have a cell phone in
your locker. Like, we have totake that till the end of the
day or whatever. Stuff like thatwould get you in trouble. So it
is it does seem like they'vedropped the ball here.
Danessa Watkins (44:39):
Yeah. Yeah. Well, so earlier this year in
January, the mother stood trial.She, she ended up being found
guilty on all four counts ofinvoluntary manslaughter after
the jury deliberated for just 11hours. And then in March, the
(45:00):
father had a week long trial,and he was also found guilty on
all four counts of involuntarymanslaughter.
So the 15 years is the maxsentence for that crime in
Michigan, and the prosecutorasked for 10 to 15 years for
both of the parents. And then onApril 9th, the judge sentenced
(45:20):
both parents each 10 to 15 yearsin prison. So, you know,
certainly, there was noprecedent for this case. The
Crumbleys were the first parentsto be held directly responsible
for a school shooting carriedout by their child, which
essentially turns on its headthe Now I found a article in the
(45:47):
70 4, and they interviewed IkaoYankao, a University of Michigan
law professor. He voiced someserious concerns about this
saying that going forward, if wehave other parents that are
being charged in connection withshootings that are acted out by
their children, then thisCrumley conviction may make them
(46:08):
more likely to accept a pleadeal behind closed doors.
So so he said court
Jack Sanker (46:14):
More likely to lock their guns up.
Danessa Watkins (46:16):
Oh, well, yeah. I mean, that's the other side of
it. So this this is just giving,you know, the the side of it, I
guess, more from the legalperspective of
Jack Sanker (46:22):
how prosecutors could start to use
Danessa Watkins (46:22):
this as a prosecutors could start to use
this as a sword. So what he saidwas prosecutors will be tempted
to use this power in ways thatwe don't see. A prosecutor is
going to sit across from aparent when people are crying
out for somebody to be heldaccountable, and the prosecutor
is going to be able to say, I'moffering you 3 to 5 years in
(46:43):
prison. But if you don't takethis deal, I will prosecute for
15 years. Evan Bernick, aprofessor at Northern Illinois
University College of Law, hadsimilar concerns that he voiced
to Al Jazeera.
He said there's a saying, hardcases make bad law, which means
that there's always an initialhorrifying case that's used to
(47:04):
justify the expansion ofcriminal law. Then there are a
whole class of cases that youdon't see, that you don't get
national attention, end quote.And then he talked about how he
could see that this case couldbe used against the marginalized
communities. You know, thoseparents who are working 3 jobs,
you know, trying to make endsmeet, and then their kid does,
(47:27):
you know, some it doesn't needto be homicide, but, you know,
does something criminal. Right.
They didn't they weren'tsupervising them because
they're, you know, trying to putfood on the table. And now, you
know, the the community's gonnacry out, and so the prosecutor's
gonna say, hey. You know, takethis take this plea deal.
Jack Sanker (47:44):
I think at a the the fact that this was
manslaughter conviction. Right?
Danessa Watkins (47:53):
Involuntary manslaughter.
Jack Sanker (47:54):
Yeah. That's that's so I mean, that that's a bit
that's so interesting. I thinkif the state of Michigan is if
the state of Michigan if you'relistening, Michigan, it could
actually, like, narrow this in away that still incentivizes
parents because I I think takinga broad brush like a voluntary
manslaughter and then applyingit to the facts of, like, this
(48:16):
case, but then opening it up toother things, slaughter and then
applying it to the facts of,like, this case, but then
opening it up to other thingsdown the road, as you mentioned,
does, kick the door open forprosecutorial misuse.
Danessa Watkins (48:30):
Mhmm.
Jack Sanker (48:31):
But, if you think if the state of Michigan has a
compelling interest inpreventing school shootings or
whatever or just preventing anyshootings, there is, you know,
the the argument that gun safetyadvocates have been making for
decades, which is, registrationof the firearm. And if your if
your firearm and unless andwe'll we'll give broad
(48:53):
exceptions to the rule here. Butif if your firearm is is used to
commit a crime, there's astatutory violation of that. And
it's I mean, maybe it's prisontime, maybe it's fine or
probation or whatever. And Imean, unless it's, like, stolen
from you or, you know, there'ssome excuses to how it end up in
someone else's hands.
But I think something like thatapplied to these facts here
would make a lot more sense andthen also prevent prosecutors
(49:14):
from having the discretion toheap criminal charges on the
parents who who maybe don'tdeserve it. I'm not saying these
parents in this case didn't, bythe way.
Danessa Watkins (49:22):
Right. But it yeah. It's it's like the
professor said that, you know,you take these egregious cases
and then but they do set theprecedent going forward for
cases that maybe, you know, theevidence isn't so glaring that
that the parents dropped theball. Now there are, parental
responsibility laws nationwide,and those do impose civil or
(49:43):
criminal liability on adultsunder the premise that their
failures to take control asparents led to their kids' bad
acts. However, these laws aregenerally premised on the idea
that the child who committed thecrime is unemancipated.
So it's it's kinda like avicarious liability Yeah. There
is adult. So the law adult. Sothe law considered him a legal
(50:11):
agent responsible for his ownactions and yet still found that
the parents, you know, wereapproximate cause of these
deaths.
Jack Sanker (50:19):
Yeah. Which is a bit tenuous the more you think
about it, even if you agree orare agreeable to the outcome
here.
Danessa Watkins (50:28):
You know, on the other end of the spectrum,
certainly for gun controladvocates and the parents of
those children who have beenkilled in their classrooms, this
landmark trial outcome was wascertainly welcomed.
Organizations such as EverytownFor Gun Safety say that verdicts
like these could have adeterrent effect, help prevent
(50:50):
future mass shootings, you know,serving a warning about safely
securing guns, essentially, allthe things that you said. But,
you know, even in the wake ofthese these new laws that are
coming out, we don't have theevidence about whether they're
actually preventing crimes. Youknow, so hopefully, there will
start to be some research onthose and and what the effects
(51:12):
are, especially in the wake ofthis decision. And I'm sure, you
know, there it's gonna continueto to have effects rippling
through our system.
So,
Jack Sanker (51:22):
what's interesting is that the giving the
perspective on on the kinda 2 arights that that those people
are so concerned about Mhmm.Because there's no prior
restraint on, you know, purchaseor or or added regulations to
(51:44):
guns or gun purchases orownership or whatever. Mhmm.
It's just, added consequencesfor when things go wrong, which,
you know, ought to be selfregulating, but, you know,
that's not exactly how everyoneworks. So it'll be interesting
to see I have not seen whetherthis has been kind of played out
(52:05):
in the various media spheres as,you know, either good or bad for
gun owners who or gun rightsadvocacy people Mhmm.
Who tend to take positions onthese cases.
Danessa Watkins (52:17):
Yeah.
Jack Sanker (52:18):
I just haven't seen, like, you know, those
groups being, like, this is,good or bad for us. But I I it
is less burdensome to give theprosecutors discretion to do
this if you wanna regulate thistype of thing, but is bad for
all the other reasons we talkedabout.
Danessa Watkins (52:33):
Yeah. Yeah. I mean, I think we're it's it's a
continuing problem in ourcountry. I think we're looking
for, obviously, ways to, deterthis type of violence, but also,
you know, new people to blame. Idon't know.
I mean, I know you covered Ithink it was in episode 11,
(52:53):
Sandy Hook, and then episode 26,the Ivaldi Tragedies. But I and
I think those discussions werefocused more on the gun
manufacturers. Mhmm. But, youknow, there there have been no
consequences to that end ofthings. So, you know, I guess
this is just the the nextattempt to try to curtail this.
(53:19):
So that's our show. Thank youfor listening. Remember, you can
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