Wednesday Writs: Ethan Crumbley’s Parents and Culpability Case Law

WW 1: Ethan Crumbley’s parents bought him a 9mm Sig Sauer for Christmas. A few days later, he used it to kill four kids at his high school and injure several other people. His parents are now in jail, charged with involuntary manslaughter, and debates over their culpability ensue.

I have a lot of feelings about that case, but one aspect in particular prompts today’s Writs feature. To what extent can a person be held responsible for a murder they did not physically commit? Would you be surprised to know the answer extends all the way to the death chamber?

No, the Crumbleys will not face the death penalty, and not only because capital punishment is not available in Michigan. Their charges are not capital offenses. But there are plenty of cases in which a people have gone to death row, and even been executed, despite there being no accusation they actually killed anyone.

The concept of the felony murder rule is simple; if a person commits a felony and during the commission of that felony someone dies, the offender can be charged with murder. This can happen in any number of ways; if a codefendant in an armed robbery shoots and kills the clerk, the non-shooter can be charged with murder. If the robbers flee and are chased by the police, wreck into and kill an innocent motorist, that can be charged as felony murder. ¹ The logic is easy to follow: this person is dead because of the felony you committed; therefore, you are responsible for their death. But is the connection so strong between the action and the outcome that you should receive the same sentence as a person who deliberately kills?

The Supreme Court has addressed this back in 1982, and said no. The case was Enmund v. Florida, The petitioner, Earl Enmund, was accused of being the driver of the get-away car at a farmhouse where his accomplices went to rob an elderly couple. One of the victims got a gun and shot at the perpetrators; they fired back and killed the couple. Enmund, who had been waiting in the car and drove the group away from the scene, was charged with the murders and jointly tried with the man accused of actually pulling the trigger. The judge instructed the jury:

“The killing of a human being while engaged in the perpetration of or in the attempt to perpetrate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill…. in order to sustain a conviction of first degree murder while engaging in the perpetration of or in the attempted perpetration of the crime of robbery, the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery.”

The jury found Enmund and his codefendant guilty and he was sentenced to death. Upon the first appeal to the Florida Supreme Court, his case was remanded because the Court failed to articulate in writing the aggravating factors that supported the sentence of death. The trial court judge submitted written findings including that the crime was “especially heinous, atrocious, or cruel” and “committed for pecuniary gain. The trial court further found no mitigation factors which would make the sentence unjust. The appeals court affirmed the conviction, conceding that there was no evidence that Enmund was at the backdoor when the robbery plan evolved to murder, but found his conviction and sentencing appropriate nevertheless under the felony murder rule. That Enmund did not intend to take a life was irrelevant.

SCOTUS agreed to hear Enmund’s appeal to answer “whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life.” A 5-4 Court, in an opinion written by Justice White, found that it was not, holding that “[t]he death penalty, which is “unique in its severity and irrevocability,” is an excessive penalty for the robber, who, as such, does not take human life. Here, the focus must be on petitioner’s culpability, not on those who committed the robbery and killings. He did not kill or intend to kill, and thus his culpability is different from that of the robbers who killed, and it is impermissible for the State to treat them alike and attribute to petitioner the culpability of those who killed the victims.”

The Enmund rule was tinkered with five years later in Tison v. Arizona. In that case, three brothers, Ricky, Raymond, and Donald Tison, helped their father Gary (who was serving a life sentence for killing a prison guard in a previous failed escape attempt) and another inmate escape from prison by smuggling in weapons, which were used to fend off guards while their father and his cellmate absconded. A few days after, their getaway car broke down, and the four of them carjacked a family who stopped to help them. While Ricky and Raymond were looking in the car for water for the family, their father and the other escapee shot the entire innocent family to death, including a baby. The younger Tisons offered no aid to the family but continued on the run with the two escapees. Eventually, law enforcement caught up with them and a shootout ensued. Donald Tison was killed; the cellmate and the other two Tison sons were captured. Gary Tison escaped into the desert, where he died of exposure.

All three captured men were tried and convicted of capital murder, armed robbery, kidnapping, and car theft. At sentencing the trial court found three aggravating factors: (1) the Tisons had created a grave risk of death to others (not the victims); (2) the murders had been committed for pecuniary gain; (3) the murders were especially heinous. The judge further found that “participation of each [petitioner] in the crimes giving rise to the application of the felony murder rule in this case was very substantial,” and that each of them “could reasonably have foreseen that his conduct . . . would cause or create a grave risk of . . . death.” They were sentenced to die.

On appeal, their death sentences were affirmed. Even though neither Tison son had actually killed anyone, “[t]he record establishes that both Ricky and Raymond Tison were present when the homicides took place, and that they occurred as part of and in the course of the escape and continuous attempt to prevent recapture. The deaths would not have occurred but for their assistance” while also finding “that they did not specifically intend that the Lyonses… die, that they did not plot in advance that these homicides would take place, or that they did not actually pull the triggers on the guns which inflicted the fatal wounds is of little significance.”

The Tisons appealed, relying on the Enmund decision, but SCOTUS ruled in favor of the state this time. Writing for another 5-4 court, Justice O’Connor differentiated the facts of Tison from Enmund in both the level of participation in the crime and the defendants’ knowledge that death was likely to occur as a result of the crime. Of the former, Justice O’Connor wrote:

Far from merely sitting in a car away from the actual scene of the murders, acting as the getaway driver to a robbery, each petitioner was actively involved in every element of the kidnaping-robbery, and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight.

The Tison brothers did not pull the trigger, but they offered no aid to the innocent family. Furthermore, because their father was serving a life sentence for killing a prison guard in a previous escape attempt, the brothers were aware that deaths were a distinct possibility in the course of carrying out their escape plot:

Raymond Tison brought an arsenal of lethal weapons into the Arizona State Prison which he then handed over to two convicted murderers, one of whom he knew had killed a prison guard in the course of a previous escape attempt. By his own admission, he was prepared to kill in furtherance of the prison break… Like Raymond, [Ricky] intentionally brought the guns into the prison to arm the murderers. He could have foreseen that lethal force might be used, particularly since he knew that his father’s previous escape attempt had resulted in murder.

Tison therefore expanded the permissibility of capital punishment beyond situations involving an actual intent to kill to those in which the defendant had a “reckless indifference to human life.”

Subsequent to the Tison decision the Court has examined accomplice liability on other occasions, though not in the context of capital punishment. In 2014’s Rosemund v. United States decision, written by Justice Kagan, the Court considered whether a person could be convicted of federal charges of “aiding and abetting the use of a firearm during the commission of a drug trafficking crime” required proof that the defendant encouraged or facilitated the use of the firearm. The facts in Rosemund showed that the defendant did not know about the presence of the firearm until it was used by his co-defendant. The Court held that Rosemund had to have an opportunity to walk away after learning of the presence of the firearm before he could be convicted of the gun charge.

Whether death is on the table or not, the threshold for accomplice accountability varies by state and is heavily fact dependent. In cases like the Crumbleys’, how much they knew or should have known, the extent to which they should have foreseen what would happen will be wrangled with in a court of law.

1. I have even seen the death of a codefendant used as the basis of a felony murder charge, though in that case, the state appeals court shot that down.