This is the second part of a series. If you missed it, part one begins here.
Because he was a juvenile, the 323rd Judicial District Court of Tarrant County had exclusive jurisdiction over Ethan Couch at the time he was charged with four cases of Intoxication Manslaughter. The first question the Tarrant County Criminal District Attorney’s office (TCCDA) had to grapple with was whether or not to ask the judge to certify Couch to stand trial as an adult. Texas Family Code Section 54.02 sets out the rules for when a juvenile court waives its jurisdiction and transfers the accused to an adult court.
There are two types of certification, one is used when the person is still a juvenile (under the age of 17) at the time he is charged, the other is for when the person was a juvenile at the time the offense was committed, but is an adult at the time of adjudication. If you’re at all familiar with this story, you know that the first type of certification is what applied initially, but the second type would be relevant later. Contrary to what you might think watching the news, very few juveniles are certified. It’s typically only done for the most serious felonies such as murders and sexual assaults. These are also the types of cases likely to get news coverage which can skew the perception. The cases you already know about are the ones most likely to have a juvenile certified.
In Tarrant County, the number of juveniles certified is generally in the single digits. If the TCCDA Office wants to certify a juvenile, he must be at least 15. They must file a petition asking the judge to certify the juvenile. The judge first orders a complete diagnostic study. Once that is done, the judge next conducts a hearing weighing the factors listed in Section 54.02(f) to weigh the safety of the community against the welfare of the juvenile. Playing heavily into the decision are the sophistication and background of the juvenile, previous criminal history, and the likelihood of appropriate rehabilitation of the juvenile. I’m not sure I’ve seen a juvenile certified for Intoxication Manslaughter before, although TCCDA asked for it on previous occasions. That’s because it’s a crime of recklessness rather than intent and substance abuse issues seem appropriate for rehabilitation.
Juvenile justice is a like walking a tightrope. Given what we now know about developing brains, when do we choose to make a teen face adult consequences over more youthful ones? Prosecutors chose to leave Couch to the juvenile system. Many factors played into this decision, but one of those was the judge. You see, prosecutors can try to have a juvenile moved to adult court, but the person who has the final decision on certification is the judge. At the time, the sitting judge was Jean Boyd. For over 20 years, Judge Boyd made those decision as judge of the 323rd District Court. She was known for favoring long probations and being very stingy with certifications, even for murder cases.
Prosecutors Richard Alpert and Riley Shaw knew they didn’t have a realistic chance of her certifying Couch, but they did hope to convince her to send him to a Texas Youth Corrections (TYC) facility. Intoxication Manslaughter is a second degree felony punishable by 2-20 years. Alpert was seeking a determinate sentence which would allow the defendant to begin his sentence in TYC. At the age of 19, he could be paroled if he had showed progress in rehabilitation or transferred to an adult facility if he had not. If the name Richard Alpert sounds familiar to readers, he is considered the Texas’ foremost authority on vehicular homicide and was the prosecutor on the Chante Mallard case which I covered in “Depraved Heart: The Killing of Gregory Biggs.”
As they were gearing up for trial, Alpert and Shaw received word of a not-so surprising development. Given the overwhelming evidence, Ethan Couch was going to plead guilty before the judge and hope for the best. It was a tactic that had always served him well in the past. That’s right. He had a history of alcohol related offenses. February 2013, just five months before the fatal crash, a Lakeside police officer found Couch peeing in the parking lot of a Dollar General at 1 am. In his truck was a naked 14-year-old girl, beer, and a 1.75-liter bottle of Grey Goose. D Magazine describes the exchange as follows:
The officer asked the clearly intoxicated 15-year-old Ethan what he was doing.
Ethan replied, “What’s it look like I’m doing?”
Tonya was called to the scene. The officer’s microphone captured the conversation between the mother and son.
“By the way, I didn’t know you snuck out,” Tonya says.
“What do you mean, I snuck out?” Ethan says. “I told you I was—”
“Well you’re not going to tell your dad that after you go out drinking and doing this,” she says.
“I drank one beer,” he says.
“It doesn’t matter,” she says.
Couch was cited for minor in possession. He appeared with his mother Tonya Couch. She paid his fine and he was ordered to attend an alcohol awareness program and perform community service. He did neither. Not one single hour. Again, Tonya would claim this was her fault for not understanding. During civil litigation, Tonya was asked about the girl. She shrugged it off. She didn’t know who the girl was or how she got home and she didn’t care. Ethan was her only concern.This incident just underscores Couch’s history. He acted out and one or both parents covered for him. If one parent punished him for something, the other one came along and bailed him out. The family dynamic was toxic.
When Ethan Couch was 9, Tonya and Fred Couch divorced. The divorce was extremely hostile, fueled by Fred’s temper and Tonya’s self-medication with drugs and alcohol. Ethan Couch became his parent’s pawn. They fought one another over him, used him to get back at one another, rarely keeping the visitation schedule. Both used money to buy his affection. He had anything he wanted: a motorcycle, a four-wheeler, a pool, the best education money could buy. He was a good student, but his parents did nothing to encourage it and even interfered.
At 13, Ethan was driving his new truck to school. A concerned principal called the parents. Fred Couch shouted her down, exclaiming that Ethan was the best driver he knew. He threatened to just ‘buy the school’ if they complained further. Then he transferred Ethan to a ‘homeschool’ program. It’s unclear if he ever graduated.
Fred first found Ethan passed out from drinking rum at the age of 14. He was angry because Ethan wouldn’t be around to shoot off fireworks. Tonya denied knowing her son was still drinking, but Ethan’s girlfriend at the time testified to drinking with Ethan and Tonya just a week before the crash. Ethan was also using other drugs, especially cocaine. If Fred did try to take something from Ethan in punishment, Tonya would swoop in and give it back to Ethan. Ethan learned how to game the system from an early age, pitting his parents against one another to get what he wanted.
He saw his parents engage in extremely risky behavior. Fred was once cited for driving 95 miles per hour and was known to engage in road rage incidents. He was arrested for DWI. According the civil case depositions, he told the officer he made more in a day than the policeman made in a year. Tonya wasn’t much better. She was once charged with reckless driving for running someone off the road. She paid a $500 fine. Fred owned a successful sheet metal business and would yell and bully others to get his way. Tonya just went for the checkbook. They divorced, remarried, and divorced again after the crash.
True to form, his parents purchased the best legal team they could find for Couch, attorneys Scott Brown and Reagan Wynn. Both attorneys were Board Certified in Criminal Law. Neither one comes cheaply. If Wynn’s name sounds familiar, he was the defense attorney on the Chante Mallard case.
The parent’s also employed an expert, a psychologist, Dr. G. Dick Miller. On Dr. Miller’s advice, Ethan Couch was sent to rehab. The family chose Newport Academy, a luxurious facility in California with equine therapy, cooking classes, basketball, swimming, mixed martial arts lessons, massages, and a matching price tag of $450,000 per year. Against Dr. Miller’s advice, the parents checked Ethan out and brought him home after just 62 days and $90,000.
Although Couch was pleading guilty, there would still be a trial. Texas has a bifurcated trial system. The first part is the guilt/innocence phase, the second is punishment. Couch’s plea erased the need for the first part and really, this case was all about the punishment. Richard Alpert knew it wouldn’t be easy. Judge Boyd was notorious for her efforts to redeem even the most hardened juvenile offenders, but Alpert had built his career on cases like this. He isn’t just any expert on Intoxication Manslaughter, he literally wrote the book. His manuals on DWI Prosecution and Intoxication Manslaughter have gone through multiple printings from Texas Criminal and District Attorneys Association Press. He knows everything there is about a building a punishment case.
December 2013, Alpert and Shaw laid out Couch’s misdeeds before Judge Boyd. She heard about his callous disregard for others, his serious substance abuse issues, and the horrific night of the crash. By now, there were seven civil lawsuits seeking damages from families of Couch’s victims and survivors. The other teens from that night testified about Ethan’s legendary drinking parties. One friend testified regarding multiple instances of Ethan Couch driving while impaired. Ethan’s circle of friends had abandoned him. But not his parents.
The defense denied nothing about Ethan Couch’s past. In fact, you might say they doubled down. They cleverly shifted attention from Ethan to his parents by putting Tonya and Fred on trial. They paraded teachers and social workers from Ethan’s past to talk about what a sweet, smart little boy he was before his parents spoiled him rotten. His parent’s divorce and remarriage and next divorce all damaged him. They treated him like an adult. Poor, little rich kid living in his 4,000 square-foot ranch-style house with a pool, numbing his pain with booze and drugs.
Ethan didn’t testify, which is unusual in guilty pleas where the defendant is seeking probation. There isn’t much to be gained by silence. The usual trial tactic is to put the defendant on the stand and let him apologize and say he accepts responsibility and wants to do better. Perhaps Ethan’s attorneys were afraid of what their cocky client would say. After all, he wasn’t really sorry.
Throughout the trial, Couch sat quietly, not even participating in his own defense. He stared off as if his thoughts were elsewhere. The defense didn’t call Tonya or Fred to testify which made it easier to paint them as the villains. Instead they called their psychologist, Dr. G. Dick Miller. This was why he had been hired, why he had spent over 50 hours with the family in preparation, why he had been paid $15,000. Dr. Miller laid forth the heart of the defense case. Ethan was a victim of over-indulgent parents. He didn’t know right from wrong because his parents had never taught him. He had never felt the consequences of his actions. Simply put, he was too rich to know how to act.
Then the word fell out of his mouth, that ridiculous portmanteau: Affluenza. Attorney Scott Brown would swear he had never heard Miller say that term before. Miller would later say in a CNN interview that he regretted saying the term, but once it was out there, it stuck. Ethan Couch would forever be Affluenza Teen. Miller went on to say that his parents had taught him, “If you hurt someone, say you’re sorry. In that family, if you hurt someone, send some money.”
The Texas Juvenile Justice System is heavily slanted towards probation. Misdemeanor offenses can only be punished with probation. The reasoning is obvious. If anyone deserves a second chance and help in changing, shouldn’t it be children? Boyd always operated on that principal, sometimes to the frustration of prosecutors.
But never assume that the system is fair. Rehab and counseling don’t come free. TYC is overcrowded and overburdened. But if a family can pay for inpatient treatment, well, that relieves the burden a little, doesn’t it? The defense argued that TYC couldn’t meet Ethan Couch’s needs as well as Newport Academy and since the Couches would pay the whopping price tag, that was the best option. They would even agree to stay away from their son, like a “detox” from their toxic love. Money can buy everything in the system, but especially in juvenile justice. It’s a dirty little secret that defendants pay for probation and those who can’t pay often end up doing time.
Prosecutors argued that Ethan was a spoiled brat with a substance abuse problem who would never understand consequences unless someone forced him to. He had killed four people, paralyzed one, and seriously injured nine more. Rehabilitation is a great thing, but sometimes, justice demands punishment. Let him get therapy in jail.
When Boyd pronounced her sentence: 10 years probation, the court room practically exploded. Court bailiff’s hustled the judge out as the assembled survivors and families expressed their outrage.
To Eric Boyles, who lost both his wife Hollie and daughter Shelby, “Money always seems to keep Ethan out of trouble. Ultimately today, I felt that money did prevail. If you had been any other youth, I feel like the circumstances would have been different,” he said to reporters.
Richard Alpert was disgusted with outcome. “There can be no doubt that he will be in another courthouse one day blaming the lenient treatment he received here.” A reporter for ABC’s 20/20 asked Alpert what would have been justice. “Justice would have been if the system had held him accountable.”
But while most were expressing their outrage, there was another contingent who wondered if Judge Boyd had known she was setting Ethan Couch up to fail. If he had gone to TYC and been granted parole, he would only serve two years. By placing him on probation, he would be under the court’s control for 10 years.
But of course, probation comes with conditions and Ethan Couch would never make a probation.
He may have walked into the court looking like an clean cut, All-American boy, but his Facebook profile shows what he looked like at the time of the offense. That was the real Ethan. And he had no interest in changing.
Coming up soon…Part 3 of Wrecked: Civil Suits, Beer Pong, and a detour to Mexico