Oakland prosecutors defend agreements with Oxford school officials; defense experts cry foul

In a controversy surrounding two key witnesses in the James and Jennifer Crumbley trials, the prosecution on Tuesday reiterated its position that it did nothing wrong in offering assurances early on to two school officials that whatever they told investigators in private about the Oxford school shooting would not be used against them.

It also stressed that those assurances in no way guaranteed the school witnesses would not be charged and that it was not required to disclose these assurances to the Crumbleys' lawyers.

Veteran defense attorneys disagreed. Arthur Weiss, president of the Criminal Defense Attorneys of Michigan, noted: “Anything written or oral, a wink or a nod or an indirect assurance has to be disclosed.”

Prosecutors say no lines were crossed.

“No witnesses were ever given immunity," Chief Assistant Prosecutor David Williams said in the statement. "Any statements to the contrary are false. Two school employees agreed to sit down with the prosecution and truthfully provide all the information they had."

But what the defense didn't know until now was that these two school employees had proffer agreements, which protect witnesses from having what they say in interviews with authorities used against them. These agreements were first disclosed by the Free Press in a Sunday investigation, which helped explain how the prosecution built its historic case against the now-convicted parents of the Oxford school shooter, and highlighted a thorny issue that has drawn much public scrutiny and stirred legal debate: Why were no school officials charged?

Last week: A promise to parents to 'get the accountability they deserve'

Last Thursday, after securing a guilty verdict against James Crumbley — the third and final member of the Crumbley family to be convicted for their roles in the 2021 massacre — Oakland County Prosecutor Karen McDonald was asked whether charges against school officials would be next.

Standing alongside the parents of the four victims who were killed in the massacre, McDonald said: “We want to hold everyone accountable."

"I’ve made a commitment to these parents, and I'm going to keep it," she said. “ ... I’m going to look at the facts and work with them to get the accountability they deserve.”

The next day, her office issued a formal statement saying no criminal charges would be filed against any school officials, stating: "Our office has reviewed all of the evidence in the case. We did not find sufficient evidence to support criminal charges against any school district employees.”

On Saturday, 24 hours later, the prosecutor’s office issued another statement to the Free Press, this one maintaining that McDonald "has said from the very beginning that she has reviewed all available evidence and has not seen any evidence that would support criminal charges for anyone at the school or district."

Tuesday's statement reiterated those points, elaborating about the proffer letters.

The school officials' testimony

The prosecution witnesses at issue are Oxford school counselor Shawn Hopkins and former dean of students Nicholas Ejak, who talked with the shooter and his parents during a pivotal meeting on the morning of the shooting, when they allowed the teenager to remain in school despite receiving multiple alerts about his behavior in the 24 hours before the massacre.

The most troubling warning involved the teen's drawing of a picture that included a gun, a human being bleeding and the words, "The thoughts won't stop. Help me." The dean and counselor concluded he was sad, but no threat to anyone, never searched his backpack — which contained the murder weapon — never asked his parents whether he had access to a gun and never ordered them to take him home.

The parents — who did not disclose to the school officials that their son had access to a gun at home — went back to their jobs. The teen went back to class. Two hours later, he fired his first shot.

On Tuesday, the prosecutor’s office issued a statement about the two school witnesses, saying their lawyers had requested proffer agreements on behalf of their clients, and that “a proffer agreement does not provide any immunity from prosecution."

“The agreement specifically says that they may be prosecuted and that there are no promises made,” the statement read. “Both witnesses subsequently testified under oath without any promises or protection, and they were given nothing for their testimony.”

Hopkins and Ejak met with investigators before first testifying at the Crumbleys’ preliminary exam in 2022, when their testimony helped convince a judge that there was probable cause to charge the Crumbleys with involuntary manslaughter. They were the key witnesses who helped bolster the prosecution's claim that the Crumbleys ignored a troubled son who was pleading for help, but didn't get it and that the couple failed to make even the "smallest" of steps to prevent the massacre — such as bringing him home from school, or pulling him aside to talk to him, after they saw his troubling drawing, which included the words, "The thoughts won't stop. Help me."

The counselor and dean both testified that they had expected the parents to bring their son home, but when the couple said they had to return to their jobs, they thought it would be better for the teen to stay in school with peers than be left home alone.

The legal debate

“The information they provided in that initial meeting was exactly what they testified to under oath in court,” Williams wrote in the statement, which also includes this assertion: “None of the information provided at the initial meeting was exculpatory to the defense, or it would have been provided.”

Criminal defense experts disagree.

“I think the prosecution is wrong,” said prominent criminal defense attorney William Swor, who has practiced law for more than four decades, and maintains the defense is entitled to information that can be used to challenge the credibility of a witness and attempt to impeach them.

In this case, had James and Jennifer Crumbleys’ lawyers known about the proffer agreements, they would have raised that at trial, and argued to the jury that the witnesses may not be believable given the assurances they were given.

“The law requires the government to turn over material in its possession that could be used to impeach its witness,” Swor said.

Veteran criminal defense attorney Weiss agreed.

Weiss cited the 1972 U.S. Supreme Court decision in Giglio v. U.S., in which the high court held that an accused person is entitled to all evidence affecting the credibility of any witness who may help determine guilt or innocence. That ruling expanded on the 1963 Brady v. Maryland decision, in which the Supreme Court held that prosecutors must provide exculpatory information to the defense.

“That should have been explored in front of the jurors,” Weiss said of the school employees’ proffer agreements, and whether they expected anything in return for their testimony.

“In my opinion, it should have been disclosed,” said Weiss, who has practiced law for more than four decades. “If it’s as benign as the prosecutor says it is, then fine. But the fact that he didn’t disclose it leaves me to wonder. I think it’s problematic.”

Weiss said in the 50 years since the Supreme Court ruling, the rule of thumb when it comes to such issues is as follows: “When in doubt, disclose.”

Mariell Lehman, who represents James Crumbley, declined comment.

Shannon Smith, who represents Jennifer Crumbley, expressed shock when she learned about the proffer agreements, and said "based on court rules" it was wrong of the prosecution not to disclose that information.

"I believe we absolutely should have been told that," Smith said.

James and Jennifer Crumbley are scheduled to be sentenced together on April 9 and each faces up to 15 years in prison. Prosecutors argued at both trials that the Crumbleys ignored a troubled son, and instead of getting him help, they bought him a gun — the same one he used to murder four classmates and injure seven others, including a teacher. The Crumbleys say they never saw any signs that their son was mentally ill or would ever hurt anyone, had no knowledge of his plan to shoot up his school, and that the gun at issue wasn't allowed to be used freely but only under parental supervision at the shooting range, and that it was properly stored in their bedroom armoire, unloaded, with the bullets hidden in a separate drawer.

Their son, Ethan, pleaded guilty to all his crimes and is serving life without the possibility of parole.

Contact Tresa Baldas: tbaldas@freepress.com

This article originally appeared on Detroit Free Press: Oakland County prosecutors defend proffer agreements in Crumbley trials