The “Affluenza defense”: A Criminal Defense Attorney’s Hail Mary

As criminal defense lawyers, we’ve all been there. A client with little to no defense while facing serious charges. You reach back into the file, re-read the entire record, and hope something will jump out at you in hopes of something to help your client. I am sure a similar scenario played out for the criminal defense lawyer representing Ethan Couch in Texas several years ago. On June 15, 2013, Couch, 16 years old at the time, was partying and drinking with his teenage friends in Burleston, Texas. He and his friends then decided to leave the house, and Couch opted to drive them in his parents’ pick-up truck to another location across town. Couch was intoxicated and, with about 6 of his friends in the pick-up truck, began speeding on a narrow two lane road. He weaved off the road, and stuck several park cars and plowed into four pedestrians on the sidewalk. All four of the pedestrians were killed and many others seriously injured.

Couch was charged as a minor with four counts of intoxicated manslaughter for the deaths of the pedestrians and a host of other charges. In December 2013, Judge Jean Hudson Boyd sentenced Couch to ten years of probation and in-patient therapy in lieu of prison. This extraordinary sentence was given to Couch after his attorney’s argued Couch suffered from “affluenza,” which is a condition manufactured by his attorney in his defense. It purportedly relates to an individual’s inability to fully comprehend the consequences of his criminal actions due to the all the trappings of a privilege upbringing. The judge and prosecutor were ultimately swayed by the defense attorney’s argument, resulting in what is an extremely lenient sentence even considering Couch’s youth.

The bottomline: there no basis in psychology for the “Affluenza,” nor has any reputable scientific organization ever diagnosed any such condition -that being said, my experience is that one can usually find some psychologist to testify as to even the most obscure psychological conditions. Nonetheless, the defense is nothing more than last ditch effort for a defendant that has essentially no defense. Strangely enough, it worked and the credit goes to his defense attorney. When the most logical and typical of defenses fail, then a defense attorney must be creative in crafting a defense.  Our case law is rife with examples of good defense lawyering leading to changes in the law. Although Couch benefited in this one instance, the affluenza defense has not been used in any other known jurisdiction; therefore, this particular defense will not be successful going forward.

As for Couch, he has undone all the all the hard work his defense attorney did to earn him the plea deal. Recently, he was seen on a Facebook video playing “beer pong” with friends when he was supposed to be staying clear of alcohol. Moreover, he seized all contact with his probation officer. These are a clear violations of his probation. Upon the news of this violation, he and his mother absconded to Puerto Vallarta, Mexico. They were recently captured by the Mexican Police and face extradition to the United States. This time, the prosecutor will be seeking jail time for the violation of his probation and the affluenza defense will not be of any use to him.