OA550: Oxford Shooter's Parents Charged

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 550. Wow, that's a lot. I usually just say the number, don't really think about it, but that's a lot of episodes. How's Patrons, it is 550. 551 is new intro quotes. That thread is up there right now for you to uh to post your intro quote suggestions, to vote on other, other ones. So uh, check that out, it's a fun little patron perk. Hear that you need, need to make some oblique noises about.

0:01:25 Andrew: A lot of shows. Yeah Do look, um, if you have been following our ongoing coverage of Christian HealthShare Ministries, you know that I have been in communication. I've testified before members of Congress. On Tuesday, I got to speak with persons at the Federal Trade Commission at the level of, of talking about specific recommendations in terms of, you how this is consumer fraud. So again, uh, if you have those stories, please do keep them coming to uh, open arguments at gmail.com and uh, and if you don't, I mean, know that you are, and we are trying to uh, make a real, a difference here, and as, as with everything, I'd love to snap my fingers and make everything magically better. Um, sometimes it requires real work. Not afraid to put in that work.

0:02:37 Andrew: I was very excited to get the opportunity to do some of that on Tuesday. I can't tell you more about it, can tell you that, you listening and,

0:02:46 Thomas: That's awesome. Why don't we get to today's show? Lots to talk about.

0:02:50 Clip: Down the law, down the law.

0:02:54 Thomas: Updates in the Amazon story. We talked about this. There was, I believe it was just like one location that was trying to have a vote about unionizing and we covered that. We covered a lot of the law around it. And then the vote happened And it was overwhelmingly, I believe, voted down. There's all kinds of very plausible to me stories of Amazon, you know, tampering with stuff and otherwise making efforts to influence that vote. But do we have an update in that story? Was that not the end of the story?

0:03:22 Andrew: Yeah, it is not the end of the story. We do indeed have an update. Boy, the uphill battle that that labor faces in today's United States. So you are correct. This has to do with the Bessemer Alabama Distribution Center, in which there were 5,867 eligible employees, of whom about 2,500 votes were cast, a little under -- well, 3,000 votes were cast, 738 votes for, 1,798 votes against, 505 challenged ballots. So as you point out, yeah, it It is a lot of challenge ballots. It's still not enough to swing the election. But as you point out, that's a pretty lopsided vote against unionizing.

0:03:54 Thomas: That's a lot of challenge ballots, isn't it?

0:04:05 Thomas: Well, I know it's not enough to change the outcome. I'm just wondering why in an election that small there would be such a high percentage of ballots. It's, did you somebody mess up? Like, why are so many challenged? I don't get it.

0:04:17 Andrew: Well, maybe this segment will shed some light on that. So immediately after that result, the union filed objections to how that elect election was conducted. And that was scheduled for a hearing before the National Labor Relations Board Region 10. that ruling is now in actually came in a couple of weeks ago. And we had some breaking news that necessitated getting there first. We're going to talk about it. The first thing that I want to talk about. And we're going to link the decision in the show notes. And as always, I'm going to spoil the outcome, which is that the NLRB has ordered a new election in that unionizing question. So they have thrown out the results of that previous election on the basis of it being improperly tainted,

0:04:18 Thomas: Oh, okay. Well, maybe

0:05:08 Andrew: And they have ordered a New One. We're talk about when exactly that's going to happen as we walk through this decision. But to figure out kind of what went wrong, I think it's really, really important first to talk about what this doesn't cover. Right. So you've seen various stories in the news regarding things that are perfectly legal for Amazon to do, And that is have meetings at which employees are required to attend in which you blast anti-union propaganda.

0:05:13 Thomas: Yeah. Wow.

0:05:45 Andrew: OK, that is a perfectly legal thing to do to require your employees to attend. No, I'm not happy about that either. I'm just saying that when we talk about conduct that goes beyond that, it's, I think, important to know sort of the landscape of, yeah, exactly.

0:05:51 Thomas: I mean, but oh, like how high that bar is that you're already allowed to do that.

0:06:05 Andrew: Yeah, that is exactly right. One of the things that the NLRB lacks jurisdiction over is set out, and this is kind of confusing, so it's why I wanted to start with it. In footnote two on page two of the decision. Which says, and again, these are the objections filed by the unions, and it says objections 20 and 21 allege that the employer, that's Amazon, discipline and discharged union supporters. OK, so obviously that's as bad a thing as you can do, right? Saying, oh, yeah, if anybody is vocally pro-union, they will get fired.

0:06:06 Thomas: Okay.

0:06:40 Andrew: On April 26, the acting regional director ordered that these objections be held in abeyance because the union filed a related unfair labor practice charge in a particular case. After the objection hearings, the union requested and I approved the withdrawal of that case. Thus, those objections are now before me. This board has held it will not inquire into an objection when the gravamen of the contention is an unfair labor practice requiring a finding that the employer's conduct constituted a violation of Section 8A3 of the National Labor Relations Act, as making such a finding would conflict with the statutory scheme which vests the general counsel with final authority to issue complaints based upon unfair labor practice charges and the prosecution thereof. This relates to a 1961 case.

0:07:27 Andrew: So it then says, accordingly, I am dismissing these objections because a discipline and discharge will be be presumed to be for cause in the absence of a related charge. So, I know there was a lot of legalese there, but I think you're grunt meant you got the gravamen of that. And that is one of the arguments you cannot make to the NLRB to throw out an election is they were firing union supporters.

And the reason for that, that is because firing union supporters is in and of itself an unfair labor practice, and you have to raise it in a separate hearing, in a different proceeding. OK, so in other words, credible, credible evidence that Amazon was retaliating against its employees who were pro-union, right, which we've heard in media accounts, which were certainly alleged in the union objections, were not allowed to be raised in this particular forum because until you've proven it, disciplines and discharge will be, quote, presumed to be for cause. Right. That is. Yeah. Well, you know, maybe maybe it just so happens that you have to you that you're pro union, but we're firing you because, you Know, you failed to meet your stockpiling quota for, you Know, the past week or what have

0:08:43 Thomas: You went to the bathroom once, so we're fine.

0:08:44 Andrew: You. Yeah, right. Right. So none of those allegations are are the subject of this particular NLRB order. So what is the subject of this particular NLRB order? And going to say it like this because I think it really illustrates what happened. It is setting up a mailbox, right? And you're going say, "Why would setting up an mailbox be a big issue?" And the answer is that that of the things you can't do as an employer is create conditions that interfere with how the NLRB has said the election was to be run? And there are a number of ways in which you could do that, right? So, so one ofthe obvious things is, right, elections can either be vote by mail or they can be vote on premises. This was supposed to be a vote by mail election.

0:08:45 Thomas: Yeah. Huh.

0:09:43 Andrew: And the minute I mean, literally the same day that the NLRB said that this was going to be a vote-by-mail election, Amazon contacted the post office and said, we need you to stick a mailbox in the middle of our parking lot. Lot. And Right. They did. They couldn't because it was such an expedited schedule. They couldn't get the regular blue mailbox. It was a special like gray kind of mailbox.

0:09:59 Thomas: Mm-hmm.

0:10:11 Andrew: But well, and that's the thing. Then they stuck a tent over the top of it.

0:10:10 Thomas: With like Jeff Bezos' eyes on it. Oh, God.

0:10:18 Andrew: Right? And the tent over-the-top of it said, speak for yourself, mail your ballot here. Now, Now, speak for yourself, that message was part of Amazon's campaign slogan encouraging employees to vote against the union.

0:10:18 Thomas: Oh, God. Look, I wonder why they are so dead set on union busting, Andrew. It must be because they care a lot about us and it's for our own good. Probably. As laborers, you know?

0:10:44 Andrew: It's, I, of course, absolutely, that has to be the case, right? Set up the mailbox, they put a tent around it, they putting their message on it. Well, also, the mailbox that they set up was plain sight of these because it was in the parking lot of the security cameras at Amazon. And while nobody said that, hey, we're watching to see who's going to go vote and which way you're going to vote for the union, the employer, that is Amazon, quote, sent messages to employees informing them that the Postal Service had installed a secure mailbox outside the main entrance, making mailing your ballot easy, safe and convenient. So I can talk about some of the rest of the stuff here, but basically everything that surrounds it came from those conditions of basically setting up transformed a, hey, take your ballot, go home, and then in the privacy of your home, fill it out. And at your leisure, take it to a mailbox to mail it in.

0:10:53 Thomas: Wow.

0:11:02 Thomas: Mm-mm. Oh, my God. God, a

0:11:54 Andrew: And Amazon will never find out. Right. They do not know. They can't observe who's going into the tent and who's not. All of those things. And right, all of those things were violated. And the test as to whether the NLRB will set aside an election is whether the objectionable conduct by the employer, quote, so interfered with the necessary laboratory condition as to prevent the employee's expression of a free choice in the election. And in deciding whether to do that, this is one of these delightful balancing tests again. This time, it's a nine-part balancing test.

0:12:32 Andrew: And it's like, don't tip the waiter at that point, right?

0:12:32 Thomas: Lot of balancing. Yeah, I'll get out my weights and measures and see if

0:12:36 Andrew: Right. Again, I am I've cracked the joke because in law school, I was a big fan of balancing tests because it's a way of saying of giving a non exhaustive list of, hey, these are the kinds of things that we want to take into consideration. And you can imagine, right, this sort of general liberal application of the laws. You would want more discretion to the courts. It's something I've changed my mind about as a practicing lawyer, because part of my job is to advise clients how not to break the law. And when the law says, well, you know, what we're going to do is judge your conduct by a nine point balancing test. It's a fair argument to be like, all right, what do I have to do? Right.

0:13:20 Thomas: Yeah. Yeah.

0:13:22 Andrew: And, you know, and it makes my job a little harder. That is not to say, and I think this is a good illustration of I think a balancing test is appropriate, Because what you can say to Amazon is, yeah, run a fair election, keep your hands off the process. What you're really asking is, what's the most I can do to interfere with the election without having the NLRB overturn it? And that is, a little sidebar in the interplay between balancing tests and straight rules. So the nine part balancing tests, right? They are the board will consider, number one, the number of incidents. Number two, the severity of the incidents and whether they were likely to cause fear among employees in the voting unit. Three, the number of employees who were affected, who were subjected to the misconduct. Number four, the proximity of the misconduct to the date of the election.

0:14:09 Andrew: Number five, the degree to which the mis conduct persists in the minds of employees in the voting unit. Number six, the extent of dissemination of the misconduct to employees who are not subjected to the misconduct, but who are in the voting union. Number seven, the effect of any misconduct on the non-objecting party to cancel out the effects of the misconduct alleged to the objection. Number eight, the closeness of the vote. And number nine, the degree to which the mis conduct can be distributed to the party against whom objections are filed. So I'm not going to go through. This is a, you know, 20 page application uh of of those factors. I will tell you, right, Amazon's primary arguments were uh there's nothing wrong with us sticking in a mailbox, um,

0:14:48 Thomas: Probably the election wasn't close would be one of them, right?

0:14:51 Andrew: Right, uh, that, you know, employers do this sort of thing all the time, and even if objectionable, the mailbox could not have affected the election results, um, and the NLRB said, yeah, the fact that you can install all a mailbox does not provide it with legitimate, right, there are lots of things that you're entitled to do, which, nevertheless, when taken in this particular context, would run afoul of those nine factors.

0:15:14 Thomas: No, it's impeachment all over again. I was like, yeah, the president's allowed to dial a phone like he's not. It's not illegal. But when he dials a certain person and ask them to do a thing, then yeah.

0:15:17 Andrew: And that's exactly right. Yeah. Um, and ultimately, right, the NLRB concluded that eight of the nine factors that I just listed are, are present here. Right. It covered the tent was visible by all almost six thousand employees at the Bessemer plant. And, right, so you say, OK, well, you know, it was seventeen hundred to seven hundred. That's not really close. Well, when, when you taint a pool of 6000 potential voters, maybe it is, right, like that. That's, we're not talking about, you the typical application of that factor is, you know, there was unauthorized pressure being made on specific individuals.

You, right, know, these five people were required to stay over time to attend one of those meetings in which they, tell you how bad unionizing is. And And we're not paid for their overtime. Right. So, again, you know one of the the the conditions is you can require your workers to attend it. It has to be considered working hours. Right. Like you can't you can'T say you're going to attend this. And by the way, we're also not going to to pay you for it. Some other funny things, which was mean, it's funny now that they've ordered a new election.

0:16:34 Thomas: Yeah.

0:16:34 Andrew: But But, you know, Amazon created vote no accessories, right, like bumper stickers and, you know, swag, right? Like merchandise. And they they stuck them on the table at during these, the union is terrible vote no meetings and then told employees, hey, you know, you can grab a vote no, you little teddy bear if you want on the way out. While, you representatives of Amazon are in the room watching to see if you pick up a vote, a vote no or not. And the NLRB is like, yeah, you you cannot make an open or observable choice to pick up or decline anti-union material in full view of the employer's agents. Right. Like, yeah, that's that's pretty straightforward stuff. So a new election.

0:16:34 Thomas: Yeah.

0:17:21 Andrew: I will tell you, that election is not even scheduled at this point in time. And the reason that it's not scheduled is that this is the regional. This is region 10 of the National Labor Relations Board. Amazon has already appealed this decision to the full National Labor Relations Board in Washington, D.C. And so that hearing will be scheduled, will be briefed, will be decided on the record again. Is obviously good news, but I think it's illustrative of a point that we've made on a bunch of shows, which is even as labor power has declined in the United States, the where you have, for For example, when you're talking about, the rights that unions have, when you're taking about, a resurgence of the exercise of labor rights in 2021, of the surface of the iceberg that's below the sea, right, is, by the way...

There's virtually 50 years of unchecked ability of companies to make it as hard as possible to unionize. And the Amazon story is a really good illustration of that. This Right. Will be years before another special election is scheduled. And and if you ask me, right, I can't attribute I can't tell you what Amazon decided to do. I can'T even tell you that they deliberately got the mailbox and put up the tent in order to

0:18:51 Andrew: Influence the election. But I can tell you that if they ask their general counsel, hey, what's the consequence here of us doing this? The general counsel just said, well, if you interfere enough, the NLRB can order a new election. And then, you hypothetical managers might be like, right, would they order any sanctions against us? No, not for Not for your first time out.

0:18:50 Thomas: Oh, I can.

0:19:12 Thomas: Right. You get one free union bust.

0:19:15 Andrew: And and all of those are true statements. So, you know, I can't, I can tell you that Amazon asked those questions. I can tell you, you I would expect an employer would ask those questions of its general counsel and and you kind of the practical application is that this process takes a long time. And that now, you know, the remedy that the retail, wholesale and department store union that is the seeking to organize it at Bessemer is, they're, they, they might get another election if the full NLRB does not overturn this decision. And they might get that in a couple of years. And I want to say that this also dovetails with our discussion of Chevron deference, because the way in which these cases are typically handled through the administrative process is that you, that that courts defer.

0:20:03 Andrew: They do not read de novo the findings at the administrative level. Right. And that's what these are. Right? These are factual findings being made by the NLRB Region 10. And the full NLRB should defer on the administrative record. And, you know, when we talk about kind of the pluses and minuses of deference, here's a good illustration. I would not like a conservative appellate court to be able to take a look at this record and be like, right, but, you you know, who cares about a mailbox? And in continuing to impose those restrictions on the power of activist right wing courts to. You Come in swinging a hammer and overturn factual results that they don't like because they don'T reach conservative outcomes. It's part of what we're fighting against here at O.A. there you go. That's that's Amazon Bessemer. I

0:20:55 Thomas: Well, I'm just loving all the stories lately of people quitting their jobs. I think it's awesome. I I think it's sign of the fact that Biden and Democrats have given a lot a lot in terms of the, you pandemic relief, economic relief of different kinds. People feel like they have a bit more of a safety net and are just quitting terrible jobs now. It's all I see, like Reddit all over the place. All I see is like, hey, here's what my A-hole boss said. I quit this job. And they're trying to find jobs that don't treat them horribly. So it's just a little bit of a positive note, I think, on that.

0:21:26 Andrew: Love that, too.

0:21:28 Thomas: I got to ask you, though, you didn't answer my question about the ballots. So you've got three around 3000 votes cast and 500 something were challenged. It just seems really high to me. Like in in in the U.S. election, if, over you 10 percent of ballots were we're challenged. That's a that seems really hot. Am I wrong? What's what's going on there?

0:21:32 Andrew: It, it seems high to me. I cannot tell you if that is a typical or typical of union elections. I can say that it played no role in the NLRB's factual findings here with respect to the mailbox. It just said 505 challenged ballots, a number that was not sufficient to affect the election results. Now, reading between the lines, I would say, you challenging one sixth of the ballots suggests that there was a high level of of acrimony here, kind of at minimum.

0:22:02 Thomas: Yeah.

0:22:20 Thomas: Does that Mean that they were accepted, but just side or the other was like, hey, these could be iffy. Or were they actually thrown out? Wow.

0:22:27 Andrew: They were thrown out. Right. Yeah, so so that's right. If you compare this to a presidential election, right, that percentage would be 17 percent would be off the charts. Yeah, absolutely.

0:22:36 Thomas: That'd be astronomical, yeah. And And

0:22:39 Andrew: Agree.

0:22:40 Thomas: This isn't a nationwide gigantic election, this is a, this should, but it's just weird, it's alarming to me, this should be way easier to manage. It's a fixed, you know, population of people that you have, all should have all the information for. Like, what that just seems fishy to me. I don't get it. Yeah.

0:22:56 Andrew: And I will tell you what I will give as sort of homework to myself before next week is to take a look and see if that percentage is typical in union elections or not, not, it certainly, right, does not seem typical when we compare with other elections, right, like, I mean, Could you imagine, uh, you know, if we had a presidential election where 20 percent of the ballots would be thrown out? Oh, that's what Republicans want. Sorry, um.

0:23:15 Thomas: Yeah. All right. Well, good news, though. Another election hopefully coming.

0:23:23 Andrew: Yep.

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0:27:04 Thomas: OK, main story. The shooting, the Crumbly shooting, one, that major development of this shooting that I know a lot of people want to hear your take on, Andrew, is the parents of this shooter were were charged with, I believe, involuntary manslaughter for the people that kid killed. So And many questions. I'm hearing a lot of coverage both ways. Like, I'm hear a lot people saying, like, the sky is falling, slippery slope to like, wow, what if you just have a gun and your kid commits a—you know, people are going that way. And then on other side, I am seeing people who think like, these charges aren't even going to—there is no way they will stick and it is not going to work. So I am just dying to hear your legal take, Andrew. Give us the breakdown on the the parents of this shooter being charged.

0:27:46 Andrew: And, and let me go briefly over the facts, because I don't know how many of our listeners are like me, where, you know, I saw there was a mass shooting in Michigan and, you know, it, I click past those stories, man, it's just

0:27:56 Thomas: Yeah, me too. Like, I'm glad you said that. I it's just too sad now. Like it's been too many That I, I just so haven't looked into the details. I just can't do that anymore. It's too many, too many kids are dying. Well, I

0:28:04 Andrew: Yeah. That's Exactly how, I, so I went back to do that, right, in order to prepare for the segment. And the specific facts about which, and again, who knows, maybe everybody knew this, but me, me and you. But on the off chance that some of our listeners do what we do, the facts are more horrifying than just the headlines let on. OK, so day after Thanksgiving, Ethan Crumbley, the defendant and suspect in the the Oxford school shooting, and his dad went to a Michigan gun shop and the dad bought him a semi-automatic nine millimeter Sig Sauer handgun as a quote, an early Christmas present. And he came back. He and his mom spent a day testing out the gun. Then reportedly, the gun was stored unlocked in the parents' bedroom.

0:28:58 Andrew: The parents' lawyers, and put a gigantic pin in this one, have since released a statement that said, you know, contrary to media reports, the the gun was locked. So they have made that argument. I will tell you every news story prior to them retaining a lawyer included the fact that the gun was stored unlocked in the parents' bedroom.

0:29:19 Thomas: If it was locked, Then I guess the kid didn't get it and the shooting didn't happen, so that's Good news.

0:29:23 Andrew: Yeah, something Like that. Was so that was the Thanksgiving, that was Friday. Over the weekend, they, you know, play around and shoot the new gun and have fun with their new toy. On On Monday, November 29, Ethan goes back to school and a teacher reported, called, called the parents because they said he's in the library Googling how to find Ammunition. Right. We do not have what the parents' response to the school was. This element of the story has been widely reported that the mom, Jennifer Crumbley, texted her son, was, LOL, I'm not mad at you. You have to learn not to get caught.

0:29:23 Thomas: Yeah. Right.

0:29:55 Thomas: Well, The

0:30:00 Andrew: That's pretty bad. This part was the part that I did not know. So that was Monday, Tuesday, the day of the shooting. In the morning, the parents were called in to Oxford High School after one of the teachers, one of Ethan's teachers, found a note that he had drawn with images of a gun, a person who'd been shot, a laughing emoji, and the words blood everywhere and the thoughts won't stop, help me. Okay, uh, and school officials were like, this is really serious, you need to get your son counseling. Uh, and the parents said, well, okay, but we don't think you should take him out of school today. So Ethan was allowed to go back to class and the, the parents went home. The parents did not ask him whether he brought the gun to school on a day in which he draws the gun and people shooting and blood everywhere. They did not search the backpack he brought with him. They did literally nothing.

0:30:54 Thomas: Gun is Safely locked away, right? So there's no way he could, according to them, right? I mean, god.

0:30:59 Andrew: 12:50 p.m., Ethan walks into the bathroom carrying his backpack, comes out with the gun, begins firing. He, of course, this is a preview of Tuesday's show. He has multiple 15 round magazines. And so, you he's got a sufficient quantity of ammunition, and the police have estimated he's fired at least 30 shots. Um, he killed four people, allegedly killed four people, Hannah St. Juliana, Tate Myre, Madisyn Baldwin, and Justin Shilling, and injured seven others. That was at 12 50 At 1 22 as this has made the news, uh, Jennifer Crumbly texts her son Ethan, don't do it.

And then at 1:37 the father, James Crumbley, called 9-1-1 to say, uh, that a weapon was missing from his house and it could be his son who was the, uh, gunman at Oxford High. Um, so, uh, as you point out, um, it is totally straightforward with respect to the charges against Ethan. Um, he has 24 counts, four counts of first degree murder, terrorism causing death. Uh, he has been held, uh, without bail. Um, remember that rather large pin I told you to put in about the parents' lawyers. Um, the strangest media reporting I have ever seen is that, uh, the parents have declined to pay for a lawyer for Ethan, uh, but have hired two high-priced attorneys to represent themselves.

0:32:28 Thomas: I sent you this story, uh, that is very interesting. Now, what in the world is going on here, Andrew, with this? Is this just like, their parents are like, well, the son's case is a lost cause, why bother? Or are they that selfish? Maybe, maybe they're just weird narcissists who like didn't bother to hire. Have you ever seen that?

0:32:44 Andrew: Never. The only argument that I can come up with, and it's not a great one, but the only argument that I can come up with is that because of the charges against the parents, that, you know, they, they didn't want, oh, the fact that they had hired a lawyer for their son to also be introduced as evidence of their, you know, complicity. But no.

0:33:06 Thomas: Wait, could that be? No. Yeah.

0:33:09 Andrew: So, so it would be, I mean, like I said, it's not a good one, but I'm kind of like racking my brain to figure out, why you would engage in this behavior. It would be sort of go down that rabbit trail for a minute. You will hear, I don't think this would be directly relevant to the charges that have been filed against the parents in any event, because that deals with the conduct prior to the shooting and not the conduct after the shooting.

So it would absolutely be excluded as not relevant, even if it weren't unbelievably prejudicial. But on top of all of that, from a strategic perspective, we just watched the Rittenhouse trial. The one thing you have to do as a prosecutor of these parents, and we're jumping in the gun a little bit, but but but the one thing you would have to do is make sure that they never look sympathetic, right? And like going over and putting, you know, and and having the like testimony of, you and you even paid for a lawyer for your son's defense is going to cause anybody who's a parent on the jury to say, yeah, I would, I would

0:34:13 Thomas: Yeah.

0:34:13 Andrew: Do that for my kid.

0:34:13 Thomas: That's the non-issue. Of course you would do that.

0:34:15 Andrew: Yeah, right. Of course you would right, like, yeah, I don't care, you and let's be clear about this, I would pay if my son were, had committed a terrible crime, I would pray for his lawyer so that he can fairly navigate the system. Right, need a lawyer to navigate the system. You're entitled to a lawyer. To navigate the system, I would pay for a lawyer for my son to navigate the system, I assume you would do the same for your kids, Thomas.

0:34:28 Thomas: Yeah. Yeah. Know that the, and I'm glad, and I support that everyone should have a right to representation. Of course. I've never thought about, I don't know why. I've just never thought about the idea of someone, of anyone, forget this case, but anyone being like, well, I can afford an attorney, but they're going to give me one for free. Maybe I should just go with the budget attorney. You know, I've never thought about that. Is there anything where like, because it doesn't say like, if you can't afford representation, you know, one will be provided to you. Couldn't, I don't know, the state, I guess, just be like, well, you clearly can afford it because you're, you hired lawyers for yourselves. So why would we provide one for your son? Or is, is that, or is it just if you say you you can't afford one, you can, there's no inquiry into that

0:35:20 Andrew: You gave at the end is my supposition. I will tell you, I know of zero cases is in which the, the government has conducted an inquiry as to whether you can actually, you know, whether you're actually indigent or not, um, and I, cannot imagine that they would, that they would ever do so if

0:35:27 Thomas: Yeah I've never thought of it, yeah it makes sense, I've just, it's just something I've ever occurred to me to even think of

0:35:41 Andrew: No and I think that that's right, that that is not, that that the right is absolute. It is rather that the government has said, you if you say you can't afford a lawyer, we will provide one and we will not inquire into that election, protection the court can also appoint counsel, right won't, but Ethan on his own, right, cannot afford a lawyer, right, so you know, and the court could always, uh, when you have an unrepresented minor, right, the court sui sponte could appoint counsel on his behalf. So, you him getting a lawyer, and he has been appointed, he has had a court appointed lawyer, Paulette Michelle Lofton, you know, has basically done the hey, hey, it's my, it really is her first day. So, you I don't know a whole lot. I can't comment a whole lot. Let me look at the discovery and then I will tell you what we will do. But, but that is the court appointed lawyer that was appointed on Ethan Crumbly's behalf.

So, so now what have the parents been charged with? And let's get to kind of the dilemma that you've, that you set up. They have been charged with four counts of involuntary manslaughter. Those right, are for the four kids that I named who died during the shooting. They've, they have pled not guilty. Involuntary manslaughter is one of these.

0:35:58 Thomas: Okay sense to me yeah right so

0:37:00 Andrew: We've talked about this before, how some states have defined crimes and other states just use their inchoate police powers to punish crimes that have existed and been defined, you since 13th century Saxony and common law. And it turns out Michigan is one of those 13th century Saxony states, the relevant criminal provision is 750.321 of the Michigan Penal Code, which just says any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison not more than 15 years or by fine of not more more than $7,500, which gives you a hint as to when the statute was passed, or both at the discretion of the court.

0:37:48 Andrew: And the first thing to note there is that is no distinction between voluntary and involuntary manslaughter, right? So if you're trying to figure out what's involuntory manslaughter, that there's no statutory definition in Michigan, we have to look to the a common law. Manslaughter is what you charge when you have a homicide and you do not believe that the defendant, that the state is likely to prove beyond a reasonable doubt that the defendant had the requisite mens rea to manifest the intent to kill the victims. Right. And so voluntary manslaughter tends to cover those range of cases that in law school we used to call these heat of passion cases.

0:38:26 Thomas: You didn't go out that day with a plan to murder somebody, but events happened and you ended up killing somebody

0:38:31 Andrew: The the literal casebook definitions are. And I will repeat them in in all of their sort of gendered glory. Laurie, remember, I attended law school in the late 1990s in which maybe you would you would think it would not be packaged this way. But it was always right. Husband comes home from work, finds wife in bed with best friend and then runs to the cabinet, grabs the gun and shoots the best friend. Right. And the idea is you did not have the specific mens rea of killing the best for you. You were just so overwhelmed and distraught, up in the heat of passion that you that you killed. But you nevertheless, right, intended to shoot somebody.

0:38:51 Thomas: Yeah for that moment that you went and got the gun though, I feel like that's a time where you might have had some mens rea, a little bit, a little bed, mens re going on

0:39:24 Andrew: So we could we could philosophers in space this right. Like I'm not I believe me in no way. Am I suggesting that this is an airtight philosophical argument? I will say that the legal argument that you're making there is an aspect of voluntary manslaughter. And it is called cooling off. Right. And and there have been cases. Right, like,

0:39:25 Thomas: Yeah yeah hmm oh right yeah like if you take long enough to do, to commit the murder, then the law is like, well, you had enough time to cool, cool down there.

0:39:51 Andrew: Yeah, that's literally what it says. Right? And I'm thinking of like the guy from Office Space who, you knows, in the basement is like, well, I'm going to blow the building up. Right, and and there are real cases in which people have attempted to use, you know, the heat of passion defense, men, you know, mens rea defense, uh, for, you know, well this is why three days later I tracked down my friend and shot him, and the courts are like, 72 hours is enough time to cool off buddy, right, like you literally had two showers in between then and now, so, uh, you know, not heat of fashion, um, but that's voluntary manslaughter, what's involuntary manslaughter. Well, again, I had to go look it up in the case law, right? Because don't know until the courts kind of spell out what it is. So one of the most referred cases I saw is a case, Michigan Supreme Court case, People v. Ryczek, R-Y-C-Z-E-K.

0:40:16 Thomas: Yeah.

0:40:42 Thomas: I think it would be like hitting someone with your car, right? Or something like that.

0:40:46 Andrew: That's right. But this This from 1923, so there weren't a lot of cars, right? But this spells out all of the elements, right.

0:40:48 Thomas: Oh, hitting something with your Model T. Yeah, in real Austin Powers-esque fashion. Two miles an hour as you get, yeah.

0:40:59 Andrew: Involuntary manslaughter is the killing of another without malice, right, that is, without the mens rea, and unintentionally. But in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some lawful act, some act lawful in itself or by the negligent omission to perform a legal duty. OK, so in trying to unpack that, right, again, a lot of these cases are vehicular homicide cases. I went to the pattern jury instructions to Michigan. Right. Again, you know, kind of following after our cow, written out, like, what, what is the jury going to hear here? And the jury is going to be instructed that a person is guilty of involuntary manslaughter if the prosecutor has proven all of the following elements beyond a reasonable doubt. Now, this is pattern jury instruction 16.10. First, that the individual caused the death of the victim. That is, the victim died as a result of that individual's act. Second, that in doing the act that caused the victim's death, the individual acted in a grossly negligent manner.

0:41:18 Thomas: There we go.

0:42:05 Andrew: Or in doing The Act That Caused the Victim's Death, the Individual Intended to Injure the Victim. OK, and that's then there's a there's literally a for example. For example, an individual who commits assault and battery with the intent to inflict injury, but instead causes an unintended death, then this amounts to at least involuntary manslaughter.

0:42:20 Thomas: Right. So you get in a fight. You're not really trying to kill somebody, but you know, someone hits their head or whatever.

0:42:27 Andrew: Well, right. Yeah. Somebody has a hematoma and you don't know about it and you punch them. And right. And right, exactly. So that's not going to come into play. But the first part that the individual acted in a grossly negligent manner is going to coming to play. And then third, that the individual caused the death without lawful excuse or justification. Obviously, there's no self-defense here. Right. So so the two main questions really are going to be first causality and second gross negligence. And both of these, I think, are a challenge. Right? It's why this is I'm really glad you brought this to mind and said, hey, we've got to cover this.

0:43:00 Thomas: Yeah? Yeah.

0:43:05 Andrew: And I'm really glad we're doing that, because I think as we kind of walk through this, you will see this is truly an uncertain question. Right? So let's talk about causality. Usually, an intervening autonomous actor is sufficient to break the chain of causality, right? Yeah, I load you into an ambulance, and then the ambulance driver is drunk and wanders around the city and doesn't get you to the hospital in time. OK. Right. I called the ambulance and loaded you into it. But, like, I'm not responsible for your death because there was an intervening actor who chose to act differently.

0:43:22 Thomas: Oh right. Right. So, but first, does a minor qualify as that? You know, like when we talk about our kids, if I do something that in some way, like if I strap my kid with a gun and they're four, I can't be like, well, there's another person. My kid made the decision to do that. Like that doesn't really get me off the hook, does it?

0:44:00 Andrew: Yeah, that is absolutely correct. And I will say that terms of case law, right, typically what you have is that spectrum of accountability intervention based on the age of the person, right? So this person is 15, a little different than a four-year-old. There absolutely have been cases.

0:44:15 Thomas: Yeah. Yeah. And a little bit different than an ambulance example where you're trying to do something good and then it, like, some other actor, like, turns into something bad. This is more like, well, I put them in the car with the iffy brake line, but I know, you know, but they made the decision to drive around crowds of people and then, you know, killed a bunch of people or something like that, you know, where it's like, you're not really doing a good thing that gets turned into a bad thing. You're buying a gun for a minor and you're not keeping it safely and you're not properly, you responding to these clear danger signs in your minor who is around a gun. You know, that that all doesn't strike me as putting someone in an ambulance.

0:44:17 Andrew: Yeah, right.

0:44:55 Andrew: Agree with all of that. And, b, what if you know the ambulance driver is drunk, right? Like the ambulance diver is, you your Uncle Fred. And you're like, oh, man, like Uncle Fred, it's three in the afternoon. Uncle Fred's gonna be hammered again.

0:45:01 Thomas: Yeah. There's drunk ambulance driver Uncle Fred

0:45:09 Andrew: Right.

0:45:09 Thomas: Again.

0:45:09 Andrew: He shows up and you smell the alcohol on his breath. Right, like all of those are situations in which the court could say, OK, you you you do indeed, right, you are responsible. This does not intervene in the chain of causality because you remember you intend the foreseeable and proximate effects of your actions. Right, right. And so sticking somebody in a car with a drunk person is way different than sticking somebody in an ambulance with a presumed competent person. Sending your kid to school is way different than sending your kid into school knowing that he's been obsessed with a gun, was researching ammo yesterday, that, oh, by the way, you show up in the morning and there's a graphic of him, you showing the gun and saying blood everywhere and please help me. So Right. That's the causality element, which I think is the easier of the two to prove. But I just want to point out that it's not a slam dunk.

0:46:01 Andrew: Right. It's not aslam dunk because there's a person in between. And one of the arguments that the parents lawyers are going to make at trial.

0:45:35 Thomas: Right. Yeah. Mm hmm. Um. That you're charging that person with all the murders and So therefore, the it ends there, is a yeah. Thinking as a lawyer that it does kind of make sense where, like, well, which is it, you know, is this person guilty or is this person guilty? But I don't know, on the other hand, you can contribute, right, to the

0:46:12 Andrew: Yeah. Yeah, that's right. Right. The other hand, felony murder. Right. Like, yeah, everybody, four people kidnap and beat the crap out of somebody. And, one person shoots them. You can go after all four for felony murder?

0:46:26 Thomas: Yeah. Yeah, now yeah, is that relevant, because this isn't a okay, it's not a conspiracy or anything.

0:46:38 Andrew: No, this is so sorry. Let me be. I was using that analogistically.

0:46:41 Thomas: Yeah, okay. Just for reasoning purposes.

0:46:42 Andrew: Right? Like I did. This is not. Yes, there is no conspiracy charge. This is not a felony murder case. But I was using that to say that the law tolerates and contemplates multiple people being found guilty for the same offense.

0:46:44 Thomas: Okay. Mm-hmm.

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0:50:04 Andrew: So now assume we get over the causality threshold. Then the question is, how do you prove gross negligence? And this is harder than you think. And one of the reasons is that there's a doctrine in negligence law that is called negligence per se. It's come up on a couple of the bar exam questions. And it is, you are negligent if you're breaking the law. Right. That makes sense. Right. If negligence is failure to act with due care, and the law says you got to drive 25 miles an hour in a school zone, and you're driving 35. Well, you're not exercising due care in that school zone. However, gross negligence is different. In fact, in a case called People v. McCoy, relatively recent, 1997, pre-Ali McBeal or, I don't know, mid-Alai McBeel by that test, but so this was an involuntary manslaughter case. This intermediate appellate court decision, Michigan state courts, that held that just exceeding the speed limit, going 55 in a 35, when the defendant struck people who were standing in the middle of the intersection, that that was not enough to constitute gross negligence.

0:50:20 Thomas: Yeah,

0:51:17 Andrew: Right. So that the negligence per se of of exceeding the speed limit doesn't always amount to gross negligence. How would it be gross negligance? Well, in that case, they were like, what were the other factors you were speeding if. And there was also heavy traffic or it was raining. Right.

0:51:34 Thomas: Or you're going like 130, maybe.

0:51:36 Andrew: In fact, that is one of the examples going 100 miles an hour in a residential neighborhood. Yeah. That's

0:51:37 Thomas: Okay yeah interesting so It's a it's a threshold, it's high threshold, not just, you negligent, but like really, really, really, really negligent.

0:51:48 Andrew: Exactly right. And one of the things that makes that a challenge is, Michigan is one of the twenty-seven states that does not have secure storage laws for their firearms.

0:51:59 Thomas: Yeah, I was going to bring that up.

0:52:01 Andrew: And good Lord, can we get those passed?

0:52:03 Thomas: Yeah. Can I take a second? So, I listened to a podcast. It was a Slate podcast with a Michigan state senator. First and foremost, we're getting to the point in our society now, where things are so polarized that Republicans are certain ways on the side of school shootings. And I mean I I like like literally. So this state senator, Michigan state senator Democrat said, yeah, day of the shooting or day after I can't remember which she was like, I tried to, you know, do a moment of silence where we all kind of acknowledge in Michigan, by the way, with a state where it happened, kind of acknowledged what happened here, that kids were killed in a in a school shooting, et cetera, et cetera. And only Democrats joined in on it. Republicans wouldn't join it because we're so they're so, I think, already keyed into the like, well, you're going to take away our guns. They can't even do the part where they recognize the shooting is a problem, which is just disturbing.

0:52:05 Andrew: Oh, please.

0:52:56 Thomas: But anyway, apart from that, she also said that like they haven't been able to get these really common sense gun restrictions passed. And this is coming from somebody in Michigan. Again, you have to deal with where you are. And it's, you know, apparently in that area, there's a lot of hunting. There's whole that kind of stuff where indeed, she said one of the victims was a a hunter. And like that one of the pictures at their memorial was like them hunting, and okay, cool, all that aside, they can't even pass like magazine limits or, um, as you say that, the the safe storage kind of laws, they can even do that, and it's very disturbing. And so I imagine that's going to factor in heavily on whether or not these parents will be found guilty, guilty of this.

0:53:36 Andrew: All of that is just a really excellent point. I mean, I I was going to sort of snarkily add, you even the NRA, right, like it's in their safety training manual, right? Says that every firearm should be secured in a gun safe, right? These are the kinds of things that, um, prior to politicization, uh, should not be controversial, um, but they are, so, uh, terms of proving gross negligence, and we're gonna wrap to this up with kind of the the traditional elements, think about how difficult that is to do when you're talking about parenting, right? Because much of that evidence is just not going to be available to the state, right, like how does the state know how good a parent you are? They really don't. And, right, so in asking the question that I, and I have seen this, right, like, well, is this, a you gateway to, you know, charging every parent for everything? The reason that these charges are seldom brought, if, uh, ever, right, I can't find a,

0:53:58 Thomas: Mm-hmm. Yeah. I Know, I love

0:54:31 Andrew: Yeah.

0:54:31 Thomas: By the way, side note, that like the first time ever this is maybe happening in a egregious case, everybody does the slippery slope, well now everyone's guilty of everything, I get put us all in prison, we're all, it's like, okay, this one, first time that I remember this ever happening, and we're already doing the like everybody's gonna be charged for everything, you bullshit slippery slope. It's it's amazing how quick we go there.

0:54:53 Andrew: And not a great argument to begin with. Um, one of the, the things that I think is always a really good defense to a slippery slope argument is whenever you have a hard bright line. And I would say it makes it almost impossible. And again, exception here, um, but almost impossible in a state which does not have, uh, you know, a gun security regulation, right? Which Which they do not.

0:55:14 Thomas: Which Michigan doesn't, right? So we're out

0:55:17 Andrew: So Yeah.

0:55:17 Thomas: Of luck? Oh, great.

0:55:18 Andrew: I'm not saying we're out of luck. Here's what the, here's what the technical elements are, and know, I sort of leave it to you to decide, going to talk about a couple of these, but are four elements to gross negligence. Number one, you must have a duty to another. And that's more than you think, right? We'll speak to that in second. Second, the defendant knew of the danger to another. That is, the defendant knew there was a situation that required him or her to take take ordinary care to avoid injuring another person. OK, that's where I think the coming in the morning of the school shooting comes into play. The defendant could have avoided injuring another by using ordinary care. And again, you would say, right, lock this up.

0:55:20 Thomas: Okay.

0:56:02 Thomas: I

0:56:02 Andrew: The parents lawyers are going to say, yeah, no, look, think about what the prosecution has just said in order to prove causality. Right. You have to show that the kid was going to kill them regardless. Right. Like that, you know, that that's sort of the equivalent of the drunk ambulance driver. But but in order to show that you could have avoided that or in order to show gross negligence, you know, they're going to come back and be like, just think of all the evidence the prosecution put on about how determined this kid was to show off his gun. Right. Like, yeah, they could have put it in a gun safe or locked it or whatever. But this kid would have just stolen it out of the gun safe. Right. They would have they would have found his way around the locks. Kids do that kind of thing. Don't know how that argument would land with a jury, but but I will suggest that there is you know, the kind of tension between proving the causality element and proving the gross negligence element.

0:56:48 Thomas: Technical question. That sounded like this is all one trial, though. Are they going to be able to reference the other trial in the parents' trial?

0:56:55 Andrew: Oh, really, really good question. And I think and the issue there is is going to be a question of sequencing. Right. They have both been arrested, arraigned, pled not guilty at the same time. So these are likely to be simultaneous trials. So there might not be a verdict.

0:57:14 Thomas: I would think that the less serious one would happen a little faster, but also the less serious one, they've hired more more high-powered attorneys who might be gumming up the system with motions and whatever, so who knows. Yeah.

0:57:22 Andrew: Yep. Yeah. Who knows?

0:57:27 Thomas: Interesting.

0:57:28 Andrew: Right. And then finally, the fourth element, the defendant failed to use ordinary care in preventing injuring another when to a reasonable person, right, to an objective outsider, it must have been apparent that the result was likely to be serious injury. And at all four of those individually and say, you could probably build a pretty good case on the facts, but I want to just show you at each and every stage, there is an argument to be made to the contrary.

0:57:28 Thomas: Yeah.

0:57:53 Thomas: And a chance for a jury, as we've seen lately, to find some reasonable doubt.

0:58:01 Andrew: That's exactly right. Right. Guess I want to end with, because I found this case, I was looking at sort of the extent of what constitutes a legal duty. And by the way, that element will not be a challenge here. Legal Right. Term is when one stands in a certain status relationship to another. Parent to child is one of those relationships.

0:58:21 Andrew: Right. So, you yes, you you have a duty to care for your kid and to not, wind you him up and, you show him how to shoot a semi-automatic pistol and then send him off to school and close your eyes when, you know, he's crying for help.

0:58:20 Thomas: When he's

0:58:37 Andrew: Yep.

0:58:36 Thomas: Drawing pictures of shooting kids.

0:58:38 Andrew: Yep. But here's an example, at delightfully old timey 1907 case that that actually comes comes up in a number, right, is cited outside of Michigan fairly frequently for the proposition that the duty that you have must be a legal duty and not a moral one. And it is a case called People versus Beardsley. And and so here's what happened. The defendant, his wife, was going away for the weekend. So he had his girlfriend come over. They right were partying like it's 1907. So the woman took, and I'm reading directly from the case here, three morphine tablets.

0:58:38 Thomas: Yeah. My god.

0:59:16 Andrew: Have no idea how that works.

0:59:17 Thomas: That she bought - Bought from the local drugstore.

0:59:19 Andrew: Then passed out. And so the defendant, I guess, had a friendly neighbor, took her over to the neighbor's house, was like, I can't have this woman dying in my bed. Right. Like so instead of go to the hospital, took took her over. Not that I know how good a hospital would have done in 1907, but took her to the neighbor's house and was like, hey, man, can you look after my girlfriend? Just let me know when she wakes up. Never wake wakes up, and so he was charged with and convicted of involuntary manslaughter. That conviction was overturned at the Michigan Supreme Court, which said, no, I'm sorry, you have no legal duty to take care of this deceased woman. Now, that seems odd because he invited her over to the house. One may infer from the documents that the way I inferred from the arguments, which was she did not come over to The House to, you know, like practice up on Bible study. No, the court was like, that is not sufficient to constitute a duty of care. So perfectly OK for him to be like, oh, that's a lot of morphine.

I'm just going to, you know, take you over to a friend's house instead of to the hospital. Instead, Michigan Supreme Court said there are four situations in which the failure to act may constitute breach of a legal duty. First, where a statute imposes a duty of care. OK, well, that Second, the the certain status relationship, right, that we talked about parent child counts.

0:59:21 Thomas: Oh, wow.

1:00:43 Andrew: Third, where one has assumed a contractual duty to care for another. And fourth, where one has voluntarily assumed the care of another and so seduced the helpless person as to prevent others from rendering aid, which is how they get out of the you're like, kind um of does seem like he uh voluntarily assumed the care of the girlfriend when he, you know, took her over to the friend's house. Um I'm picturing, you know, 1907 version of Pulp Fiction. Um And so, yeah. Yeah, that's why that additional bit was sort of added on to the end there. The point of all of this is going to be a challenge to prove gross negligence. And so this will be an interesting case to follow. It certainly provides the potential for one of those where the outcome, you know, sort of stands jarringly in contrast with the facts of the case.

1:01:33 Thomas: Follow-up questions. For one, we didn't at all talk about the fact that the Crumbleys fled and were arrested hiding in a commercial building. Just is that something that you can bring up in the old trial? Like, hey, that's weird. Why did you not turn yourselves in or no? Know so

1:01:50 Andrew: Again, not not a criminal defense lawyer. That strikes me as kind of classic behavior that is unduly prejudicial, far more so than it is probative.

1:01:59 Thomas: You get a free runaway try

1:02:01 Andrew: Well, I mean, you know, I'm thinking the, you the O.J. Simpson white Bronco. My recollection is that that never made it into evidence. It certainly was in the public consciousness. But I will say this here. You have a very very narrow criminal offense that has been charged. That is involuntary manslaughter. And it is it is difficult to argue. Right. I will I will tell you what the argument would be. Right, the argument Would be, you know, sort of guilty conscience, this is, that you are aware that you have violated the law. And that can be relevant, I suppose, in kind of a chain of inferences to you You knew you didn't abide by, the official you standard of care. But if I were the parents' lawyers, I would say, look, ultimately, right, that fourth element of gross negligence is is objective rather than subjective. So it doesn't matter. Right. What they thought in terms of their of how much care they provided. And, yeah, they were distraught at having failed to intervene, to stop their kid from killing a bunch of people. But, that's not that's

1:02:02 Thomas: Oh yeah or Yeah, that's interesting.

1:03:08 Andrew: Not that's not relevant to elements of the offense.

1:03:09 Thomas: Yeah so the only downside of running away is essentially the bond gets set a little higher and that's about it.

1:03:15 Andrew: Do not take running away from a crime advice from a podcast.

1:03:22 Thomas: All right, but yeah, and then the other thing I want to ask, do you think that the parents' lawyers will argue you that the school might have some liability, or is that an argument they could make? I'm looking at the details of when, we noted that the school called them in for a meeting and said, "You need to take this kid to counseling." It seems as though the parents refused to take their son home for the day and left without him. So that might, now, negate any claims of like, like, "Well, it's the school's fault that they, whatever." But is there any argument in these facts for the parents to be like, "All right, the school should have stopped the kid somewhere"? Will that be a defense for them?

1:04:03 Andrew: Will be a defense under causality. The right, exact same way. And I should have two elements. It would be a offense under causability, right? Like here was yet another kind of piece in the in the clockwork that was in between the parents' actions and Ethan's actions. And I could see that it would also potentially be arguable under the standards for gross negligence to say that we did not know that this would be dangerous to another because, you know, the school seemed like they were on top of it. Right, right, like they, they called us with the ammo search. They called us, you know, with the with the picture in the morning. We thought that that, they were on top of these sorts of things.

1:04:37 Thomas: Yeah. And we should note, as we're recording, news just broke that there's a lawsuit. It says $100 million lawsuit against the schools, the mass shooting survivors are filing, which I mean, we'll have to analyze that another day, but that, wow. Okay. Well, that's all the time we have for that. Lots of interesting stuff there, and we'll Have to follow how that, that story progresses.

1:05:03 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:05:09 Thomas: And now it's time for Thomas takes the bar exam each and every week. I, well, I shouldn't say that most weeks, 97% of weeks, I attempt to answer a bar question using nothing but what I've learned from this show, oh, because I will never study outside of that. And let's see, I think I'm on some sort of good streak or at least I got the last one, right? Let's hear it.

1:05:24 Andrew: Yeah, you are. Yeah, you're on, I think, a three question winning streak. So Thomas, a man owned a house in a suburban neighborhood. One day he discovered that the second step of his front porch was very wobbly. Without the time to fix the step this month, he created a sign to hang on the handrail that leads up the stairs. The sign said, "Use caution, wobbly step could cause injuries." The sign was properly placed and easily available and easily visible.

A few days later, the man invited one of his new neighbors, an elderly woman, over for lunch. The neighbor approached the stairs, saw the sign, decided to use the staircase regardless. When she stepped on the wobbly stair, it caused her to slip. The neighbor was still healing from a recently broken hip, and the resulting fall from this slip caused her hip to re-break. If the neighbor were to sue the man for negligence, who is most likely to win? A, the A, the neighbor, because the man breached his duty to the neighbor to make the step save as soon as he learned of the dangers. B, the neighbour because the step was the actual and proximate cause of the injury. C, the man because he did not breach a duty that he owed to the neighbour. Or D, theman because the neighbour assumed the risk that she may fall.

1:06:46 Thomas: Is interesting. Lots going on here. Right off the bat, I'm, what's also, oh, I think it doesn't matter. The last minute I was like, oh, will it also matter that she has a recently broken hip and so she rebroke her hip? You know, is that like, you punched the glass man or whatever, are you liable for that? But it looks like that doesn't matter because she's just suing the man for negligence. I don't know if it matters like what the damage. I don't, anyway. Right.

A couple overall thoughts. I mean, there's a step that is wobbly, but he puts a sign, which is, that's very thoughtful that you own a house and you put up a sign that says, like, "Use caution, wobbly step could cause injuries." I feel like it's reasonable that beings won't be able to instantly fix everything that's wrong with their house. You know, I feel like it's reasonable to like, oh, I've identified a problem, I, who knows, you got to buy supplies, you gotta hire somebody, you gotta do something in the meantime, I'll put notice, that seems reasonable. And it also, the fact pattern states that she saw the sign, I guess it doesn't tell us for sure that she read it, but it says decided to to use the staircase regardless. So I am strongly leaning toward D, actually. Let me just go through all of them one more time to make sure.

So A, the neighbor, because the man breached his duty to the neighbor to make the step safe as soon as he learned of the dangers. Like the language there. Did he have a duty to the neighbor to make the step safe right away? I don't like the wording of that. It doesn' t sound precisely correct. It's his house. I d' n't know that he had a duty to make it safe as soon as he learned of it to the neighbor.

1:06:47 Andrew: Yeah.

1:08:21 Thomas: You know what I mean? I don't know. It seems weird. So I don'T like B. I DON'T like A rather. B, the neighbor because the step was the actual and proximate cause of the injury. Sounds like one of the no-nonsense. So, I'M going to keep that as my neighbor answer. B would be my better neighbor answer. So for now, I'LL keep that one. C, the man because he did not breach a duty that he owed to the neighbor or D the man, because the neighbor assumed the risk that she may fall. So I think I actually am between C and D here. I think I'm strong. I think I am. Huh? This is a tough, bold move, but I see and D are very difficult. Uh, the, the man wins. Cause I think, look, he put a sign up elderly woman could have been like, oh, better not try that. It's a wobbly step, you know, but she read the sign and decided to try it regardless.

1:09:10 Thomas: And then she slipped and fell. I just feel like done enough, and you so therefore, will the man win because he didn't breach a duty that he owed to the neighbor or will the man win? Because the neighbor assumed the risk that she may fall. This seems this screams out to me that she assumed the the rest risk. Don't, I could see an argument for either. Well, but I, but I feel like you may be, you invite the neighbor to your house, then maybe you do have some sort of duty to them. So maybe like, I, that's why I leaned toward D. I think it's like, well, he may have had some sortof duty to A, either fix the thing or B, you know, provide notice that it was broken, I think. But the woman read the sign. Yeah, I'm going with D. I think it's between B, C, and D. I think I'm more strongly between C and D, but I'm going with D. The neighbor assumed the risk. I, I think It's reasonable that it's a wobbly step.

1:09:57 Thomas: It's not like a lava pit. It wasn't, it You was just a little wobbly. I Think It's Reasonable that your own home. You invited a new neighbor over, but it's your own house. She had the option to not use it. I thinks she She assumed the risk. D, final answer.

1:10:09 Andrew: Alright, and if you'd like to play along with Thomas, you know how to do that, just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never ending fame and fortune. Fame and fortunate not guaranteed.

1:10:21 Clip: And thank you, Let's go!

1:10:23 Thomas: And now it's time to thank our new patrons at patreon.com/law. All the goodies I mentioned, the intro quote suggestions. We've got a Law'd Awful Movies. And I think the overwhelming consensus is we need to get back to our bread and butter, Andrew, and do some actual lot awful movie. You know, it's good to do the other things. But, like, I think people are due for us making fun of a silly legal premise in a movie. So we are doing that. It'll be within probably the next week. That will get the next lot off of movies to you. So, plenty of good reasons to pledge and the ad-free episodes each and every time. The early Tuesday episodes, you get those on Sunday night. So, let's thank our new patrons. Thank you, Furries Against Alex Jones. All right. Roe v. Wade, a Supreme Court case about a pleasant day at the lake. Juby Doo, Lauren LaPlant, Tony Zimmerman, Clowncar Crash, Nick Pod. Oh, that's such a good podcasting name. If that's your real name, like I, my name should be Nick Potter, you know, and Rural jurors rule rural jury rules, your turn.

1:11:17 Andrew: Oh. Nick, pod, max power. Oh, Thank you to Nicholas Butt, to Patent Lawyer Ben, to Joseph Brumaghim, to Faddah Wolf, thank you to Fraud vitiates everything around me FVEAM get the money dolla dolla bills yall, ClaireB, and thank you to Good Grebes.

1:11:50 Thomas: And that's our show. Thanks so much for listening. Excellent breakdown as always, Andrew, and we'll see you for a Tuesday episode.

1:11:57 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

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