Mexican Jaunt in Affluenza Case Won't Pay Dividends for Couch or his Mother

The fugitive from justice case out of the state of Texas involving 18 years old Ethan Couch and his mother, Tonya, that in equal parts fascinated, and appalled, Americans everywhere for the past three weeks is both instructive and cautionary. Couch, as you may recall, pleaded guilty in 2013 to four counts of vehicular manslaughter for plowing his speeding pickup truck into a disabled motor vehicle, killing the vehicle's driver and three "good Samaritans" who were attempting to assist her. Apparently drunk on stolen beer (and possibly high on valium), Couch's blood/alcohol level after the crash registered at .24 %, or three times the legal limit. In addition to the decedents, one of two companions' in Couch's pickup was left brain-injured and partially paralyzed. Couch, who was 16 at the time, was prosecuted in Tarant County Juvenile Court. At his sentencing, a psychologist called by the defense testified that Couch "suffered from affluenza;" in essence, he was too rich and spoiled to know the difference between right and wrong. Apparently crediting this testimony, the judge sentenced him to 10 years of straight (i.e., no jail) juvenile probation, which included the condition he stay away from drugs and alcohol for the duration. The prosecution had hoped for a sentence of 20 years incarceration. Early this month, likely in response to a probable violation of probation, Couch failed to appear for a scheduled meeting with his probation officer and, along with his 48 years old mother, appeared to have fled the state. Both were apprehended this past Monday in Puerta Vallarta, Mexico, where they were "hiding in plain sight" (a la Whitey Bulger and Catherine Greig) while keeping a low profile. They are currently in the custody of Mexican authorities pending extradition. Post-arrest photographs depict the blond-haired, red "bearded" Couch to have dyed/colored his hair dark brown or black.

The Couch case is instructive to me as a defense attorney in that it demonstrates that sometimes, but certainly not always, one's best defense just might be to concede guilt, present no defense, and instead reserve for, and focus one's energy, argument, and resources on, a contested sentencing hearing. For the most-part, that was the defense strategy in the recent Boston Marathon bombing case where the defense conceded guilt during the guilt phase of a two-tiered trial process and did most of the heavy-lifting/proactive defending during the [death] penalty phase. Clearly, Couch's defense team adopted a similar approach in his case, with the wisdom of that choice confirmed by the extremely lenient nature of the sentence he ultimately received in light of such egregious, wanton, reckless and catastrophic behavior. Now I don't know Couch's defense lawyer(s), and was as bemused, if not surprised, that the judge accepted his/her sentencing premise (last I checked "affluence" is not an Axis I, II, or III mental disease or disorder recognized in the DSM-5). Still, I give him/her a great deal of credit for creativity and for trying; also for backing that claim with credible forensic psychiatric testimony, and for obviously knowing (or having researched) the Judge well-enough to know what arguments or issues were likely to resonate . Call it what you will. I call it good/aggressive/effective lawyering. To criminal defense attorneys at all levels of practice and experience, the initial result was both instructive and illuminating as to the value, regardless of the case and circumstances, of knowing when, where, and how to fight your client's battle(s), understanding your venue/forum, and correctly gauging your "audience." No lawyer can or should ever be blamed for doing just that.

The Couch case is also instructive in terms of the disconnect and/or inevitable gaps that still pervade our criminal justice system regarding those tweener periods between the end of adolescence and early adulthood. Here, because he was sentenced as a juvenile, the worst penalty Couch faces under Texas law, if found by a juvenile judge to have violated his terms and conditions of probation, is incarceration in a juvenile facility until his 19th birthday, in April of 2016. While an option of transferring his violation to adult court also exists, Texas law says he can't be punished there for violations committed while a juvenile, but he could be required to serve up to four (4) months in jail as a new condition of his adult probation—which is essentially the same time he'd serve for a juvenile court probation violation. Once in adult court, a further violation would, in fact, have "teeth" in that Couch could be incarcerated for up to 40 years.

As a criminal defense attorney who also handles juvenile matters, I understand, and support, juvenile laws and protections being applied to persons who allegedly committed crimes as juveniles, regardless of their age at the time they are prosecuted. (For that reason, prosecuting an adult Michael Skakel as a juvenile for a murder he was alleged to have committed in Connecticut at 15 made sense to me.) I also believe that scientific studies that have demonstrated how long it takes for the human brain to fully develop (up to 25 years, or older) and that adolescent males lack certain constraints such as impulse control, compel a different standard and different treatment for juveniles. Still, even from a defense perspective, it seems to me there ought to be stronger recourse and additional sentencing options regarding 17-19 year olds convicted ("adjudicated delinquent") of certain serious felonies like rape, murder, or manslaughter who blatantly disregard "second chances," commit substantial probation violations, make a mockery of the system, and/or intentionally flee the jurisdiction/prosecution. What that might be is up to the legislature in each state to determine, but until then, be assured that lawyers like me will be duty-bound to exploit those loopholes to our client's best sentencing advantage.

The Couch case is, likewise, cautionary on a number of different levels, the first one also being inherently ironic. While the System as currently constituted will continue to go easy on someone whose criminal conduct was the direct and proximate cause of the death of four innocent strangers, and the paralysis and impairment of a close friend, solely by virtue of his age at the time of the offense conduct, the full weight of the court can, and may well, come down much harder on his mother for in some respects being not much more than well... a mom; again, simply because of her child's age. While in Mexico, Tonya Couch was charged with the crime of Hindering the Apprehension of a Juvenile. If convicted, she faces a mandatory minimum prison sentence of 2 years, and up to 10. The second cautionary basis is that this case also shows both the prevalence and prejudice of Social Media in that the impetus for Couch's potential probation violation, and the likely prompt for him to flee in the first place, appears to have been a video posted by "a friend" on twitter of Couch attending a drinking party and being close enough to an active game of beer-pong to suggest he may have been a participant. The third cautionary basis is the revelation that despite absconding to a busy Mexican tourist destination on the Gulf Coast, disguising his appearance, remaining indoors, and restricting his face to face interactions, it was a traceable cell phone call to Dominos Pizza, ordering delivery, that ultimately led to the discovery of Couch's hideaway; which just goes to show, you can sometimes be so smart as to be just plain stupid.