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Smerconish

The Natural Immunity Question; Tuscon Officer Fires Nine Rounds, Kills Suspect in Wheelchair; Teen Shooter's Parents Arrested; Parents of Michigan School Shooter Plead Not Guilty to All Charges. Aired 9-10a ET

Aired December 04, 2021 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: Wouldn't work here and won't be tried.

I'm Michael Smerconish in Philadelphia.

This week, Germany announced a nationwide lockdown for the unvaccinated saying that they will be banned from accessing all but the most essential businesses such as supermarkets and pharmacies. Under the titan rules, unvaccinated people can only meet two people from another household. And bars and nightclubs must shut down in areas with a high incidents rate.

That would never succeed in the United States where passions about vaccination run deep and often divide along partisan lines. And it's probably not worth the effort. Such as the intensity here in the states that Thursday, a government shutdown was averted despite the willingness of some Republicans to bring services to a halt in a bid to stop President Biden's vaccine mandates.

And the president seemed to acknowledge the futility of continuing to try to convince some in retro rural states to get vaccinated when he announced a strategy shift away from singular focus on vaccination, and instead to emphasize increased testing.

But maybe there's an olive branch that could be extended to some of the unvaccinated that might bridge our divide on the pandemic. Buried in the report about Germany's lockdown limiting the activities of the unvaccinated was this pretty significant caveat.

The ban does not apply to those who have recently recovered from COVID-19. Basically, the lockdown is for those with no antibodies. And those who have had COVID are treated the same as those who have been vaccinated.

And it's not just Germany. Here's something that I did not know that might come as a surprise to you, too. Unlike here in the United States, the European Union and other countries have been affording the same privileges to people who have had COVID-19, the same privileges as those who are fully vaccinated.

Among the countries that do, Austria, Belgium, France, Germany, Greece, Ireland, Israel, the Netherlands, Spain, Switzerland, Turkey, Ukraine, the United Kingdom and the Vatican.

You're wondering, well what does the science say? Well, it's complicated.

According to an October study by the UK's Office for National Statistics, two doses of either Pfizer or AstraZeneca vaccines provided a similar level of protection to prior natural infection when the Delta variant was dominant.

Our own CDC concurs. A study dated October 29th says, quote, "Available evidence shows that fully vaccinated individuals and those previously infected with SARS-CoV-2 each have a low risk of subsequent infection for at least 6 months."

On the other hand, Omicron has presented a new wrinkle. Just Friday, researchers at the South African Centre for Epidemiological Modelling and Analysis at the Stellenbosch University said this in a statement. "Population-level evidence suggests that the Omicron variant is associated with substantial ability to evade immunity from prior infection."

Important to note, none of that is yet peer reviewed.

Microbiologist Simon Clark of the UK's University of Reading said, "Omicron has blown a big hole in the controversial argument that we should simply allow the infection to spread in an attempt to create immunity."

It all raises a very interesting question. Should prior COVID infection count when it comes to vax mandates? Is the science settled? And what do the Europeans know that America does not or vice versa?

I want to know what you think. Go to my website at smerconish.com and answer this week's survey question. "Should prior COVID infection count when it comes to vaccine mandates?"

Joining me now is Dr. Monica Gandhi. Professor of Medicine and associate division chief at the UCSF, San Francisco General Hospital.

Dr. Gandhi, thank you so much for being here.

How about that question as a starting point?

What do the Europeans know that we don't or vice versa?

DR. MONICA GANDHI, INFECTIOUS DISEASE SPECIALIST, UNIVERSITY OF CALIFORNIA, SAN FRANCISCO: I don't think they know anything differently than we know. I think that there's pretty much what's called equipoise around this question.

What equipoise means is that some study show that the infection is less common after been recovered versus getting the vaccine and some studies show the opposite. And essentially, if you put all of the data together, probably the largest study shows that reinfection is actually a little more protective than having the vaccine.

That was in Israel. Importantly, Israel gives their vaccine, only Pfizer every three weeks apart. It's not the vast vaccine.

But if you put all of the data together. And we've been accumulating data over 15 months, probably would have been a situation where reinfection is equally as common if you've been previously infected versus having the vaccine. And I can certainly talk about the South Africa situation.

SMERCONISH: Well, do talk about the South Africa situation. I made a point of saying that that was not yet peer reviewed. But what is the latest?

GANDHI: So, what's very interesting - I mean, everything is so new with the Omicron variant. We barely have a week and two days of data.

[09:05:00]

The issue is that what -- why would natural - why would recovery from infection be variable? It's actually variable because you can present with really severe disease, unfortunately, and then you actually have more durable immunity. You have stronger T-cells. And you have antibodies that lasts a long time.

Then if you present with more mild disease, the opposite is true. Your antibodies will likely come down more quickly. And the vaccine would be narrative.

Same with the vaccine, by the way, the vaccine AstraZeneca does not raise as high up antibodies as the mRNA vaccines do. And so, they may be stronger but then again, Moderna is a stronger mRNA vaccine than Pfizer, higher dose and more duration between doses.

So, all of that put together is complicated. It's mixed. And in South Africa, the vaccine program started with AstraZeneca at the beginning. It actually started much later than we did here in the United States. We don't have even rates of vaccination in South Africa. 23 percent, 25 percent now.

And fundamentally, rates of previous infection were less likely to be severe to younger population. So, all of that makes it complicated. And it's been longer since people have had their natural infection in South Africa.

And then, finally, that paper that you just referenced or the data that you just referenced, there's no mention of protection against severe disease which we're beginning to understand. We're going to see a lot of reinfections, whether you're vaccinated or whether you've been previously infected. Mild infections through the nose with an endemic circulating high-level virus, we're going to see it.

What's the protection against severe disease? That's the fundamental question.

SMERCONISH: Dr. Gandhi, maybe I'm the outlier. I do read a great deal about these subjects. I was really shocked. I'm reading in this week about Germany and their lockdown. And I saw that line. And the line said that folks who have had COVID or treated the same, in lay terms, the people who have had COVID are treated the same as people who have been vaccinated.

Catherine, if you can put that map back up of the world, I want to show it.

And when we then look at the research and we saw how many nations - European nations, the European Union, the Vatican treat you the same, but the United States does not. I don't understand the disconnect.

Can you say anything further on that? Why are we not doing it the way they -- and who has the right idea, us or them?

GANDHI: You know actually, I think Europe does because you can't discount natural immunity. When you are in a state of the data where you're in a genuinely equal situation, some are a little better, some are this way. But essentially, it's essentially the same protection from specifically severe disease from having natural infection versus being vaccinated. You can't frankly discriminate against those who have been recovered.

And European nations are most loud because they know their science. And they put all the data together and they decided that those who had recovered have the same sort of rights at least in the case of Germany than those who were vaccinated.

There's a Lancet Infectious Diseases review that was published just earlier this month that puts all of the data together. Klausner - Dr. Klausner last author, all the data together, epidemiologic and immunologic, then concludes that if you're going to do vaccine mandates, you should allow those who have had prior immunity to count. And encourages immunity mandates like Europe is doing.

So, how can I explain this.

SMERCONISH: Well, I want to have the conversation. I am here to have the conversation. I don't have your expertise. I just think it's right for dialogue, especially when we're so dug in. And maybe this is one way we can bridge the partisan divide on these issues.

GANDHI: You're exactly right.

SMERCONISH: Thank you, Dr. Gandhi. That was really informative.

GANDHI: Thank you.

SMERCONISH: What are your thoughts? Tweet me @smerconish or go to my Facebook page. I'll read some responses throughout the course of the program.

"Natural immunity is too variable when compared to vaccines which have been extensively studied. A false positive on a COVID test is no substitute for a shot in the arm."

Jon Wyner, I hear that from experts with whom I've spoken about the subject. You also just heard what Dr. Gandhi said in contrast to that view. She thinks it ought to be accounted for.

One more if we have time. What is it?

"Germans aren't a bunch of babies like Americans have turned out to be!"

David, it's not just Germany. If it were just Germany, I'd say OK, United States goes one way, the Germans go the other. But you saw that long list of countries - countries that you know we have great respect for, do business with and tend to mirror one another's policies.

I want to know what everybody thinks. Go to my website this hour. It's smerconish.com. Pretty simplistic survey question at least in the way we framed it. Complicated answer maybe.

Should prior COVID infection, should it count? Should it count when it comes to vax mandates?

Still to come.

James and Jennifer Crumbley, parents of the teen charged in the Michigan high school shooting were located and arrested early this morning in Detroit after their vehicle was spotted. They face charges of involuntary manslaughter. We will be covering that arraignment live here on CNN. We expect to do so in the next 20, 25 minutes.

[09:10:05]

And remember when the hesitant were being enticed with payments to get vaccinated?

Well, now four GOP-led states are doing the opposite. Ensuring unemployment benefits for anybody who gets fired for refusing a work mandate vaccine.

Does that make sense?

Plus, this week, an Arizona police officer fired nine times. Killed a suspect in a motorized wheelchair who was wielding a knife. Is there any alternative to the use of deadly force in these situations?

One local police department is experimenting with something they call "shoot to incapacitate." And I will explain.

(COMMERCIAL BREAK)

SMERCONISH: So, you're looking at a live shot. That's the sheriff's office in Oakland County, Michigan, where soon the arraignment for the parents of the Michigan school shooter. The arraignment will begin. And when it does, we will carry it live.

[09:15:03]

Question, do police always have to shoot to kill? I've got a warning for you. You're about to see a video that contains some disturbing images.

All right. Roll it. This week in Tucson, the police department moved to fire an officer a day after he fatally shot a man in a motorized wheelchair. The man, 61-year-old Richard Lee Richards was suspected of stealing a toolbox from a Walmart. He flashed a knife when challenged. And the officer who was carrying a taser opted to use his gun firing nine times.

The officer's lawyer said that the taser wasn't an option and told "The New York Times" that Richards' actions were to blame. Quote, "Officers are trained that if they perceive a serious and imminent deadly threat, they are to fire multiple times until they perceive the threat is removed."

Anytime a firearm is discharged, it's considered deadly force. According to a database maintained by "The Washington Post," Richards is just one of 6,793 people shot and killed by police since January 1st of 2015. 41 percent of them like him did not have a gun.

If you've ever been on a gun range or just seen one on TV, you've likely seen this classic target. It's this guy. Hunched over, aiming at you, with circles around his face and chest. That's where you're taught to shoot. And when police shoot at suspects, they too are taught to aim for center mass. Generally, the torso.

But trying to save lives, a new police training program called "shoot to incapacitate" was launched this past February in LaGrange, Georgia. That's the town of 30,000, about an hour south of Atlanta. LaGrange officers are now taught that in situations where they think a deadly threat can be stopped without killing, they should aim for the legs, the pelvis, the abdomen.

In late September, LaGrange had its first police involved shootings since training began. An officer encountering a man wielding a machete, first fired a taser and when that didn't work, shot the man in the abdomen and the legs. The man survived. However, the program has elicited widespread criticism in law enforcements community.

John B. Edwards of the Peace Officers Association of Georgia told "The Washington Post," it's virtually impossible to implement. And quote, "opened Pandora's box."

Joining me now is Seth Stoughton, a former police officer who actually took the training in LaGrange to see what it was like. He's an associate professor of Law at the University of South Carolina Law School and lead author of the book, "Evaluating Police Uses of Force."

Seth, what did you learn when you took the training?

SETH STOUGHTON, ASSOCIATE PROFESSOR, UNIVERSITY OF SOUTH CAROLINA LAW SCHOOL: Good morning. I learned that the training is nuanced and far more complicated than is often being reported. It doesn't apply to all use of force situations or all deadly force situations. It provides officers with an option that they are now formally allowed to consider in certain narrow circumstances.

SMERCONISH: Is there a hypothetical that comes to mind where you could see this being implemented? STOUGHTON: Yes. The training emphasizes that officers can use this new targeting, aiming at the upper legs, pelvic girdle or lower abdomen against someone for whom deadly force is authorized when that person has something other than a firearm. This would be a melee weapon like a knife or a club.

And the best example that was used in the training that I went through was a situation where officers are confronting and interacting with someone over some period of time. So, they have the luxury, if you will, of being able to position themselves and take aim.

Think of a suicidal subject. He's holding a knife to their own throat and then rushes at the officer. In an appropriate situation, the officer may shoot to the pelvic girdle under this policy, as opposed to shooting the center mass.

SMERCONISH: If you shoot to the pelvic girdle, if you shoot to the groin, if you shoot to the leg, that still sounds pretty deadly to me.

STOUGHTON: It is still considered deadly force. This is not a reduction in the level of threat that the officers use of force creates. It can still kill. But according to the medical experts who I've spoken to and who the LaGrange police department consulted with, it is less likely to be lethal, that is, has a lower mortality rate than shooting to the upper torso or certainly to the head.

SMERCONISH: How practical is it? I mean, I would - I would have assumed that in the field when the adrenaline is going, and a member of law enforcement is confronting a situation where he or she is contemplating the use of deadly force. To now have the added consideration of, OK, I need to shoot him. Where am I going to shoot him? I don't know. Are they going to be able to process all of that?

STOUGHTON: Not in every situation. And this is one of my big hesitations about the program. Officers have to be very well trained and prepared. And LaGrange police department does a pretty good job of that. But not every agency is going to be able to prepare officers to make this type of difficult situation in what can be a very time- pressured situation.

[09:20:07]

There are concerns about whether officers will be able to make good decisions and whether they'll have the physical skills, the shooting kills, to be able to hit a target that is at least somewhat smaller than the traditional center mass target.

SMERCONISH: Seth, I can understand the criticism from the member of law enforcement that I quoted a moment ago who said you're opening up Pandora's box. Because immediately once you authorize some form of force less than deadly, if you go down the road of it, "shoot to incapacitate," you know in every circumstance, a police officer is going to be asked, well, why did you shoot center mass. You should have shot the ankle instead. Quick final comment from you.

STOUGHTON: Yes, this is a very popular criticism and I think it both makes sense but it's also more broadly applicable than it appears. That criticism couldn't officers have done something different applies in every shooting now.

SMERCONISH: True.

STOUGHTON: So, the idea that it might continue to apply in future shootings doesn't seem like a particular concern to me.

SMERCONISH: Well, we have a lab experiment of sorts in LaGrange, Georgia. Let's see what happens. Thank you for being here Seth Stoughton.

STOUGHTON: Thank you for having me.

SMERCONISH: Via my social media. I think this comes from the world of Twitter.

What do we have, Catherine?

"You shoot to eliminate the threat. Period. Once the threat has been stopped, then you go into life saving mode, first aid, etc. Imagine a school shooter and the police are trying to hit an arm, or a leg, and miss. And the shooter gets -"

Well, Drich, we can all come up with our hypotheticals. Like in your scenario, sadly very timing for the arraignment that we're about to televise live. Yes, you would say you got to take out that threat, any means necessary.

But in the standoff scenario -- we had a situation here in Philadelphia. One year ago, where police arrived on the scene, it's a guy with a knife, he has a history of mental health issues. They don't have tasers, that was a shame. And they end up shooting to kill.

That's the kind of scenario I'm thinking of. Was there an alternative where there was a little time to assess the situation. And maybe in a case like that they had the alternative.

I want to remind you. Go to my website at smerconish.com. Answer this week's survey question. We talked about this in the first part of the program.

"Should prior COVID infection count when it comes to vaccine mandates?"

Up ahead.

Following a manhunt, the parents of Michigan high school shooter Ethan Crumbley are now in custody. They face charges of involuntary manslaughter in their son's killing of four schoolmates. We'll carry their arraignment and do that live.

(COMMERCIAL BREAK)

[09:27:10] SMERCONISH: The parents of the Michigan high school shooting suspect have been arrested overnight after a manhunt found them in Detroit. James and Jennifer Crumbley were found on the first floor of an industrial building near where authorities had located their car. Their 15-year-old son, Ethan, is accused of killing four students and wounding seven others at the Oxford High School.

The Crumbleys were charged Friday with four counts of involuntary manslaughter for having allegedly given their son the weapon that he used in the shootings as an early Christmas gift. They were transferred to the Oakland County Jail where their son is also being held. And they are expected to be arraigned within minutes.

So, what's the legal situation?

Joining me now is CNN legal analyst Paul Callan. He's a criminal defense attorney and former prosecutor.

You know, Paul, in cases like this in the past, I can hear myself doing the radio show. And the call comes in and it's someone who says, what about the parents? Where were the parents? But this is pretty rare, isn't it, that there'd actually be a prosecution?

PAUL CALLAN, CNN LEGAL ANALYST: It is, Michael. It's very, very rare. Especially on a fact pattern like this.

Now I will tell you. In the past, I have seen parents charged but it tends to be a situation where the parent is either a police officer, maybe a correction officer, doesn't secure his firearm back at his apartment or his home. And a toddler gets ahold of the gun and maybe shoots another child that he's playing with. That sort of thing. That's the kind of reckless use charge that we customarily see.

Now, this is something very, very different. This is really involving the parents and being charged in connection with a mass shooting because of their own negligence in not securing their weapon from their own child. So, we haven't seen charges like this in quite a while.

SMERCONISH: Paul, I'm glad you used the word "negligence" because from my assessment of the timeline, their behavior certainly seems negligent. But does it rise to the level of criminality? Where I guess the issue is, were they complicit in this case. Can you flesh those notions out?

CALLAN: Yes, it's a difficult concept that juries have to struggle with when they get cases like this. And criminal negligence really, as opposed to what we call ordinary negligence, in a car accident case, for instance. All right. You're driving fast. And you get in an accident. Now, that's negligence, OK?

But criminal negligence is a significant level above that. It usually is an act of reckless conduct or grossly negligent conduct. And the degree of negligence is so great that any ordinary person would perceive that engaging in such conduct might hurt another human being. Now, let's look at the facts here. The facts would be that the parents knew he had this gun. As a matter of fact, they had purchased this sig sour automatic for him as a Christmas present.

Two, the parents were aware that he had prepared this bizarre note saying that there would be blood everywhere. He had a picture of a gun in it.

[09:30:00]

Two, the parents were aware that he had prepared this bizarre note saying that there would be blood everywhere. It had a picture of a gun in it, a picture of a person being shot. And the parents had been called into school and warned that something unusual was going on with the child.

So, there was awareness of a psychiatric problem involving use of a gun and they had an unsecured gun. The gun was kept in a drawer that was unlocked and it was in fact the child's gun. So, it seems to me that they probably can make out this difficult standard of criminal negligence with respect to this case.

One thing I would throw into the hopper though, Michael, causation. I was looking at the jury charge in Michigan that is given to the jury when a case gets submitted to them. And the big thing is you have to prove that the action caused the death of all of the victims involved.

And I think juries may look at this and say, well, they were reckless. But can they be charged with actually causing the death. I think that's where defense attorneys might try to fight the charges when the case ultimately gets tried.

SMERCONISH: And that's what I was getting to. And the question -- I have many, many questions. In fact, there's more unknown than known at this stage. But at the top of my list is the question of, "On the day that they get brought into school, did they know he had the gun?" Obviously, they knew they purchased a gun for him, but did they know he had the gun?

Hey, Paul, I don't know if you can see this but I'm going to put a slide on the screen with a timeline and I want to walk you through some of that what you just described. So, dad purchases the gun on the 26th. I think that's Black Friday. And then on the 29th, a teacher observes Ethan searching ammunition in some kind of a Googlish search.

The school contacts the parents on that day. They don't get a reply. The following day comes what you referenced. Ethan's teacher finds an alarming note. The parents are immediately summoned to the school. They both come in. They resist taking him out of school.

It's within a few hours that now there's the report of the active shooting having commenced. And you know, mom texted the son, as I understand it, Ethan, don't do it.

As you scrutinize that timeline what stands out? CALLAN: You know, several things but most importantly that the parents knew that the gun was in their home and maybe in his backpack even when he went to visit the school with them when the school complained. And it seems to be clear that he has psychiatric problems of some kind.

There's one thing that I would add to your timeline, Michael, and that is that when the mother found out that the son had a problem at school, with respect to he was searching for ammunition, according to one of the teacher complaints, on the internet. And the mother texted back to him, to the child, laugh out loud, you have to learn how not to get caught. Now that --

SMERCONISH: Right.

CALLAN: -- seems a clear awareness of the presence of a firearm and sort of aiding and abetting the child in saying, you know, don't worry about what the teachers are saying about your conduct here.

SMERCONISH: OK. No doubt and I'm not excusing that which is known thus far about the parents' conduct. But then I have to also ask the question, "Well, what about the school?" Because the school had a concern on one day as to him searching for ammunition online and then the following day there's such reason for concern that they bring the parents in. I mean, at what point does the school have to say, hey, Ethan, you've got a backpack, what's in it? We need to take a look. We want to search your locker, et cetera, et cetera, et cetera.

You know, was it the same teacher? I don't know the answer -- we're going to the arraignment now, Paul. We'll come back to you in a moment. Let's do it.

CALLAN: OK, thank you.

SHANNON SMITH, ATTORNEY: We have spoken to both of our clients about conflicts of interest. We have had in-depth conversations with them.

Mariell Lehman and I are representing both of them. We are representing James and Jennifer. And the conflict-of-interest question or issue has been very much discussed and resolved. And we believe at this time, ethically and professionally, we can continue on in this fashion.

HON. JULIE NICHOLSON, MICHIGAN JUDGE: OK. Well, as you know pursuant to MCR6.005 subsection F1, you must state on the record the reasons that you believe joint representation in all probability will not cause a conflict of interest. So, please state that for the record in accordance with the court rule.

SMITH: Thank you, your honor. After reviewing the circumstances and facts of the case -- and one of the things I need to make clear is that the media has very much been saturated with cherry picked facts. But when we have talked to our clients in-depth and learned all of the circumstances of the case, which obviously are covered by attorney/client privilege, there is not a conflict of interest between what happened. [09:35:11]

Without, I cannot divulge to you the specific reasons but there is not a conflict of interest between the parents, their defense and their defense strategy.

NICHOLSON: Prosecutor, any comments or statements you want to make relative to any potential conflicts of interest?

KAREN MCDONALD, OAKLAND COUNTY, MICHIGAN PROSECUTOR: Your honor, you know, I'm not sure that there's any facts that have been placed on the record that meets the standard. I'm not saying that I object but I'm not sure that we have satisfied the court rule. But if Mr. Keast has something about it.

NICHOLSON: I am required to inquire as to each defendant as well. Jennifer Crumbley, do you have any objection to Ms. Lehman and Ms. Smith representing both you and Mr. Crumbley for this case recognizing that they come from the same firm and they will be representing both of you?

JENNIFER CRUMBLEY, DEFENDANT: I have no objection, your honor.

NICHOLSON: Mr. Crumbley, likewise for you, do you have any objection to both Ms. Lehman and Ms. Smith representing both you and Ms. Crumbley as it relates to this particular case?

JAMES CRUMBLEY, DEFENDANT: No objection, your honor.

NICHOLSON: Do either of you have any questions or concerns about a potential conflict of interest. Mr. Crumbley?

JAMES CRUMBLEY: No.

NICHOLSON: Ms. Crumbley?

JENNIFER CRUMBLEY: No.

NICHOLSON: OK. At this point, the court is satisfied that the -- both of the defendants are comfortable with both attorneys representing them in this case. The attorneys have indicated on the record that they do not believe that there is a conflict of interest. And that they have spoken with both defendants in-depth relative to any potential conflict of interest and whether or not the representation may jeopardize the right of each defendant to have the undivided loyalty of their lawyers. Therefore, the court will allow them to appear for purposes of the arraignment today on behalf of both defendants.

MARIELL LEHMAN, ATTORNEY: Thank you, your honor.

NICHOLSON: All right. Now, in terms of the arraignment, Jennifer Crumbley, I'm going to arraign you first. So, if you'll please make sure you get close to that microphone so that we can hear you. If at any time you do not hear or see me, please put your hand up and we will stop the proceedings and then try to figure out what's going on. Do you understand that you are charged with the following counts, count one, involuntary manslaughter which is punishable by up to 15 years in prison and/or a up to a $7,500 fine and mandatory DNA for the death of Madisyn Baldwin? Do you understand that is a charge for count 1?

Mrs. Crumbley, you need to (INAUDIBLE) --

JENNIFER CRUMBLEY: I understand.

NICHOLSON: Do you understand that you are charged in count two for the death of Tate Myre, involuntary manslaughter which is punishable by up to 15 years in prison and/or a up to a $7,500 fine and mandatory DNA?

JENNIFER CRUMBLEY: I understand.

NICHOLSON: Do you understand that you are charged in count three for the death of Hana St. Juliana with involuntary manslaughter which is punishable by up to 15 years in prison and/or a up to a $7,500 fine along with mandatory DNA testing?

JENNIFER CRUMBLEY: I understand.

NICHOLSON: Do you understand that you are charged in count four for the death of Justin Shilling with involuntary manslaughter which is punishable by up to 15 years in prison and/or up to $7,500 fine along with mandatory DNA testing?

JENNIFER CRUMBLEY: I understand.

NICHOLSON: Do you understand that you do have the right to plead guilty or not guilty to all of those counts?

JENNIFER CRUMBLEY: I understand.

NICHOLSON: And do you understand that you do have a right to a swift trial either by a jury or by a judge and at that trial you would have the opportunity to call witnesses on your behalf, confront witnesses that have been called against you and/or to remain silent and that you would be presumed innocent until proven guilty beyond a reasonable doubt? Do you understand all those trial rights?

JENNIFER CRUMBLEY: Yes, your honor.

NICHOLSON: Are you on probation or parole for any other offense? Ma'am, I'll ask the question again. Are you on probation or parole for any other offense?

JENNIFER CRUMBLEY: No.

NICHOLSON: And how are you pleading to count one?

JENNIFER CRUMBLEY: Not guilty.

NICHOLSON: How are you pleading to count two?

JENNIFER CRUMBLEY: Not guilty.

NICHOLSON: How are you pleading to count three?

[09:40:00]

JENNIFER CRUMBLEY: Not guilty.

NICHOLSON: How are you pleading to count four?

JENNIFER CRUMBLEY: Not guilty.

NICHOLSON: The court will enter the pleas of not guilty for you for all four counts. The court will set the probable cause conference which is going to be on December 14th. Amy (ph), what time do we have that one?

UNIDENTIFIED FEMALE: (INAUDIBLE).

NICHOLSON: That is December 14th at 1:15 p.m. The preliminary examination is scheduled for December 22nd at 9:45 a.m. Those will be in-person hearings.

SMITH: Your honor, just as a matter for our file, are you assigned for the purpose of examining the pre-exam or is it -- is it a different judge within the court?

NICHOLSON: It is me. (INAUDIBLE) is assigned to me.

SMITH: OK -- perfect. Thank you. Thank you.

NICHOLSON: I'm going to address that in a minute. I'm going to go ahead and arraign Mr. James Crumbley first.

SMITH: Thank you.

NICHOLSON: Mr. James Crumbley, can you see and hear the court OK?

JAMES CRUMBLEY: Yes.

NICHOLSON: And do you understand, sir, that you are charged in count one for the death of Madisyn Baldwin of involuntary manslaughter which is punishable by up to 15 years in prison and/or to a $7,500 fine and mandatory DNA testing?

JAMES CRUMBLEY: I understand.

NICHOLSON: Do you understand in count two you are charged with the death of Tate Myre for the involuntary manslaughter which is punishable by up to 15 years in prison and/or up to a $7,500 fine and mandatory DNA testing?

JAMES CRUMBLEY: I understand.

NICHOLSON: Do you understand that you are charged in count three for the death of Hana St. Juliana with the involuntary manslaughter which is punishable by up to 15 years in prison and/or up to a $7,500 fine and mandatory DNA testing?

JAMES CRUMBLEY: I understand.

NICHOLSON: And do you understand that you are charged in count four for the death of Justin Shilling, involuntary manslaughter which is punishable by up to 15 years in prison and/or up to a $7,500 fine and mandatory DNA testing?

JAMES CRUMBLEY: I understand.

NICHOLSON: Do you understanding that you do have the right to plead either guilty or not guilty to all of those charges?

JAMES CRUMBLEY: I understand.

NICHOLSON: Do you understand you have a right to trial either by jury or by judge and at that trial you would have the opportunity to call witnesses on your behalf, confront witnesses that have been called against you and/or to remain silent and that you would be presumed not guilty until proven guilty beyond a reasonable doubt for each and every element of the crime? Do you understand those trial rights?

JAMES CRUMBLEY: I understand. NICHOLSON: Are you on probation or parole for any other offense?

JAMES CRUMBLEY: No.

NICHOLSON: How are you pleading to count one?

JAMES CRUMBLEY: Not guilty.

NICHOLSON: How are you pleading to count two?

JAMES CRUMBLEY: Not guilty.

NICHOLSON: How are you pleading to count three?

JAMES CRUMBLEY: Not guilty.

NICHOLSON: And how are you pleading to count four?

JAMES CRUMBLEY: Not guilty.

NICHOLSON: Again, the court will accept the plea of not guilty for all four counts. This case will also be scheduled for a probable cause conference on December 14th at 1:15 and a preliminary examination on December 22nd at 9:45 a.m. At this point, I will address bond. First, I'd like to hear from pretrial services.

JEFFREY RECTOR, PRETRIAL SERVICES: Thank you, your honor, Jeffrey Rector for pretrial services. Ms. (INAUDIBLE) declined to speak with pretrial services and respect -- request to speak with her attorney. As a result, no references were contacted, and little background information is available. She's 43 years old and married. Her listed address with the jail is 112 East Street in Oxford, Michigan. She does have not -- she does have a prior criminal history. She is not currently on probation or parole. She does not have a history found to appear (INAUDIBLE) doesn't have prior document and history of violence.

The charges against the defendant are severe. Those charges issued by the court. Along with the co-defendants, failed to turn themselves into authorities where every defendant is afforded the presumption of innocence. The purpose of bail is to ensure appearance and the safety of the community.

The defendants in this matter agreed through their attorneys to turn themselves in to the court once charged (INAUDIBLE) on 12-03 of '21. Instead, they fled. Based on the defendants' attempt to flee prosecution pretrial services has concerns for appearance and the safety of the public. It is our recommendation that a release (INAUDIBLE) bail is not appropriate in this case. In order to further mitigate concerns for appearance and public safety if the defendants make release the following conditions are respectfully recommended.

Pretrial services supervision, a GPS tether prior to release, allow to leave home for work if employed, medical appointments, attorney visits, not to have any contact with any witnesses or victims or return to Oxford High School, not to possess a firearm and they must turn in any firearms in that have not been confiscated.

[09:45:03]

NICHOLSON: Thank you. Who is going to speak on behalf of the prosecutor's office?

MCDONALD: I am, your honor.

NICHOLSON: Go ahead.

MCDONALD: Your honor, I'm sure you read the pursuant to MCR 6.106, bond should be set with the considerations of the likelihood of conviction first. Here, the likelihood of conviction is strong.

Your honor, we know from facts that were presented at the swear to that the Crumbleys -- Mr. Crumbley purchased this weapon for his son. And that on the 27th, Mrs. Crumbley went to the shooting range with her son. Posted on social media saying that it was a mother/son day and that she was -- she bought a weapon for her -- a gun for her baby for Christmas. It's also clear from the facts that he had total access to this weapon. And that it was -- that it was for him.

Second, on the 29th, both defendants were aware that he was searching ammunition on his phone at school. Instead of reacting to that as a concerned parent and worried about safety, Mrs. Crumbley texted, LOL, just -- I am not mad. Just next time don't get caught.

And then obviously on this very tragic day on the 30th, they were called to the school and -- about their son's drawing which clearly depicted threats and acts of violence. And instead of disclosing to the school that he had full access to this weapon, they chose not to.

They chose not to take their son home. They chose not to tell anybody that he might be dangerous when it was clear, and they had every likelihood that he was. And instead, they left.

Furthermore, after the active shooting announcement went out Mrs. Crumbley texted her son, Ethan, don't do it. And Mr. Crumbley went to his home purposely to search for this weapon because he was afraid his son had the weapon and was in fact shooting people and hurting them, which as we know is exactly what happened.

Your honor, this is a very serious, horrible, terrible murder and shooting. And it has affected the entire community. And these two individuals could have stopped it. And they had every reason to know that he was dangerous, and they gave him a weapon. And they didn't secure it. And they allowed him free access to it.

Furthermore, your honor, the purpose of bond is to secure further court appearances. And yesterday, they were charged with these counts of involuntary manslaughter.

Now, your honor, the communication between Mrs. Smith and the prosecutor's office was a text message that was sent to me and was not replied to. And, you know, we don't have an obligation to cooperate. And there are good reasons for that. I think they've -- the fact that the events that played out show the reasons for that.

Now, Mrs. Smith, clearly her clients did not tell her the truth. Because her representation was, they wanted to turn themselves in and that they were on their way to do that. However, they didn't turn themselves in. And we were told they were out of town.

Except that yesterday morning, they withdrew $4,000 from an ATM in Rochester Hills. Very close to where they could have turned themselves in, with no impetus and no efforts on behalf of law enforcement.

Instead, they fled. And they sought multiple attempts to hide their location. And were eventually tracked down after they parked their car somewhere, a witness saw it. And the entire fugitive apprehension team, with multiple other law enforcement agencies, went into a vacant building and searched it from top to bottom. And these two individuals were found locked somewhere in a room hiding. These are not people that we can be assured will return to court on their own.

And then lastly, pursuant to MCR 6.106, we also should consider -- or the court should consider whether or not there are members of the community to vouch. There are none here. In fact, there are none here because there are -- there's not one person in that community that will vouch for these two defendants. So I'm asking that you set a $500,000 bond for both defendants cash-surety.

NICHOLSON: Let's -- I would like to hear from the attorneys. Please -- address the bond as it relates to Jennifer Crumbley first, please.

SMITH: Your honor, the first thing I need to do is to respond to the prosecution's comments about our contact with their office.

[09:50:02]

On Thursday night I texted Karen McDonald and told her my office was representing the Crumbleys and we -- and I wanted to speak with her. She did text back and said, we could talk first thing Friday morning.

First thing Friday morning I did text Ms. McDonald. I also group texted Ms. McDonald with Mariell Lehman. I also called her office. I talked to her personal secretary and explained who I was, the circumstances, and that I needed to speak with Ms. McDonald.

Mariell Lehman also called Ms. McDonald in the morning. We called the prosecutor's office throughout the day and never got a call back. We were going to make arrangements to have our clients turn themselves in.

I was in a trial in circuit court in front of Judge Savin all day yesterday. Ms. Lehman was traveling on a plane from Florida up to Michigan. The prosecutor's office, instead of getting back to us in any way, decided to have a press conference. And as Ms. McDonald admitted, tried to find a way to surprise our clients and catch them off guard when it was so unnecessary.

And last night and throughout the day we were in contact with our clients. They were scared. They were terrified. They were not at home. They were figuring out what to do, getting finances in order. And the last text messages we had with them and phone calls Mariell Lehman and I had with them, our plan was to drive to the Novi District Court this morning because arraignments were supposed to start at 8:30 for any county arraignment. And we had plans to meet them at 7:30 to text the fugitive apprehension team to get to the court by 8:30 so they could be arraigned first thing.

Those were plans we made and solidified. And we did not announce it because unlike the prosecution we weren't attempting to make this a media spectacle. This case is absolutely the saddest, most tragic worst case imaginable. There is absolutely no doubt. But our clients were absolutely going to turn themselves in. It was just a matter of logistics.

And all the prosecution had to do was communicate with me about it. And we tried multiple times.

All right. That being said, with respect to Ms. Crumbley. She is 43 years old, as pretrial services told you. She has been employed as the director of a large company, director of marketing. She is a -- she grew up in Clarkston prior to living in Oxford where they've owned their home since 2015. She lived in Lake Orion.

She has never been in serious trouble with the law. She does have a drunk driving conviction back from when she was in college. Any conviction on Ms. Crumbley's record is a misdemeanor and is old.

Ms. Crumbley has retained my office and Mariell, obviously. She would not have done that had she planned to not turn herself in and flight these charges. I'm quite certain they wouldn't have paid my office money and taken those steps if they were not going to fight these charges.

When it comes to the seriousness of the offense, when you listen to the prosecution's facts they're presenting which are incomplete, very incomplete, it does sound like an absolutely egregious wrongdoing on the part of Mr. And Mrs. Crumbley that they gave their child a gun and encouraged him to do this. That's just not the case.

And Mrs. Crumbley is presumed innocent. And I ask this court to know that -- to note that full discovery has not been available. And that the court is only aware of the facts the prosecution has presented. But that gun was actually locked.

So when the prosecution is stating that this child had free access to a gun that is just absolutely not true. And we need an opportunity to fight this case in court and not in the court of public opinion. We need the opportunity to have our clients' constitutional rights to being presumed innocent protected. And this court is going to see in the exam, in particular, that there is far more going on than what this court has been made aware of.

And for that reason, your honor, I would ask this court to set bond, keeping all of that in mind. Our clients would absolutely be -- avail themselves to a GPS tether.

[09:55:03]

They would absolutely obey all of the conditions listed by pretrial services. This case does not warrant a $500,000 bond. I would ask this court in light of the criminal history, the limited facts presented, to order that the bond be set at $50,000 or $100,000 if this court believes it needs to be more.

Our clients are going to fight these charges. Our clients are just as devastated as everyone else. Bond has to come from a place of legal soundness not emotional reaction which has driven this entire case. And it is emotionally charged. It is emotionally the worst thing I have ever been involved with and seen.

There is no doubt it is the worst thing the Crumbleys have ever been involved with and seen. And there is just so much going on here. And we ask the court to set a reasonable bond.

NICHOLSON: Any additional comments as it relates to James Crumbley?

LEHMAN: Yes, your honor. James is 45 years old. He has a prior conviction from 2004. Again, similar to Jennifer Crumbley any convictions that he has would have been -- we believe that they were misdemeanors. He does not have any substance abuse issues.

He does have some health issues that require -- he's diabetic that required two types of insulin. He was gainfully employed. He has been in Michigan since he and Jennifer moved up here several, several years ago.

As for the seriousness of the charges, as Ms. Smith has stated, the facts that have been presented by Ms. McDonald and her office have been cherry picked to further her narrative of making an example of Mr. And Mrs. Crumbley which she very freely said she was doing yesterday during her press conference. Again, to echo what Ms. Smith had said, I personally contacted Ms. McDonald's office to notify her of mine and Ms. Smith's availability. She chose not to call us back.

I was also in communication with law enforcement as was Ms. Smith. They knew that we were planning to bring in Mr. and Mrs. Crumbley. They knew that we were in communication with them, contrary to what was presented in the media.

Your honor, they hired our office on Thursday. They have been -- we are prepared to defend this case. They are absolutely taking this case seriously.

They are devastated by the events in the Oxford incident. This is not something that is being taken lightly by them or us, your honor.

I agree with Ms. Smith, $500,000 is not warranted in this case. The charges are very serious, but as the court is aware, they are allegations at this point. As Ms. Smith has stated, both of our clients are presumed innocent unless they're proven guilty, your honor. And quite frankly from what we know, your honor, the facts are not what they have been presented to the court and to the public.

So I again echo what Ms. Smith indicated. Our clients are more than happy to have a GPS tether, to be on pretrial service supervision. I am again requesting $50,000 or $100,000 bond.

But Mr. Crumbley as with Mrs. Crumbley is not a flight risk. She is not -- he is not a danger to the community. There is no risk that they are going to flee prosecution. They were never fleeing prosecution. I want to make that very clear with the court.

We have been in communication with the prosecutor's office and law enforcement and our clients throughout yesterday, your honor. They were not fleeing prosecution contrary to media reports. So, your honor, I'm asking that they have a $50,000 or $100,000 bond with the GPS tether and pretrial services supervision.

MCDONALD: Your honor, may I respond, please?

NICHOLSON: Very, very quickly, please.

MCDONALD: Your honor, I agree with Mrs. Smith on one thing. The court hasn't heard all the facts and neither has the public, because I have an ethical duty not to release those facts. Because she is indeed correct her client and Mr. Crumbley have an absolute -- we have a burden, and these are merely allegations. So, I agree.

And I just want to point out, nobody needs permission. These defendants did not need my permission and they didn't need law enforcement permission to go to the court and turn themselves in. Go to the police department, the sheriff's department and turn themselves in.

I agree Mrs. Smith was perhaps in trial. She had a break from 11:45 to 2:45. And I can't imagine why they were surprised. The whole country knew that these charges were coming.

And lastly, to suggest that anyone is somehow using this incident to create press, there's a lot of attention here because four children were murdered, and seven others were injured. And that is on the mind of every single person in this country.

[10:00:00]

So, I would ask that you impose the $500,000 cash-surety on each of the defendants, your honor.