Michigan Supreme Court
Today I had lunch with Nick Lyon and my good friend Rick Bossard. Nick is the former DHS Director who is being charged by AG Nessel for nine counts of manslaughter. His attitude is amazing. It is an inspiration for me to keep writing about his case. As I have said so many times, this is a politically motivated prosecution by Nessel to gain favor with her constituents, especially since the State has already settled the case with the City of Flint and its residents with a $650 million settlement.
Up until November 2021 I had never met Nick. It was only after he had been forwarded copies of my blog, that he reached out to me to have lunch. Today was the second time I we have ever been together. I am amazed how he is holding up through this nightmare he and his family are facing. His spirits are upbeat because he knows that he is innocent of all charges against him. He continues to be an inspiration to me to keep his case in the public’s eye.
It has been over 16 months since Lyon and others were charged by Nessel, using a one-man grand jury with a judge serving in the role of both judge and prosecutor. As a result, Lyon and others have not had a preliminary exam in which they have seen or heard the evidence that was used as a basis of the charges against them. Nessel is of the opinion that the Lyon and others are not entitled to a preliminary exam because the sole purpose of a preliminary exam is for the judge to hear the evidence gathered by the prosecutor and then determine that there is enough evidence for the case to go to trial. Nessel does not believe that the Michigan constitution entitles a defendant to a preliminary exam. She believes the Michigan constitution allows a judge to represent the executive branch (as the prosecutor gathering evidence in the case of a single person grand jury) and as the judicial branch (the judge approving the charges). Nessel believes that a judge serving in the role of both the executive branch and judicial branch on the same case is not a violation of “separation of powers”.
On May 4, lawyers for Lyon, Nancy Peeler, and Rich Baird, all of whom have been charged by Nessel in the Flint Water Crisis using the one-man grand jury, presented their case to the Michigan Supreme Court. Nancy Peeler and Rich Baird claimed that their due process was violated. The attorney’s said they should have had a preliminary exam to determine the evidence against them. The 3 defendants were also presenting their arguments that the one person grand jury process was unconstitutional. Director Lyon’s attorney John Bursch was asking for full dismissal of the charges against Director Lyon. If the Supreme Court grants the request of Director Lyon, the charges against the rest of the defendants could also topple.
The following is excerpts from a summary of the Supreme Court Hearing by Gongwer News Service. In addition, I have included the complete video of Nick Lyon’s attorney’s presentation to the Court as my Video of the Day. It is worth the time it takes to watch.
The separation of powers doctrine and whether criminal defendants indicted by a single-judge grand jury have the right to a preliminary examination were two arguments that took center stage before the Michigan Supreme Court on Wednesday……
Overall, attorneys for former Governor Rick Snyder, former Department of Health and Human Services Director Nick Lyon, DHHS subsection manager Nancy Peeler and top Snyder aide Richard Baird argued Wednesday that the grand jury process – one of several types of probable cause finding processes available to prosecutors – did not afford the defendants the right to a separate preliminary examination.
The defendants argued that such a hearing, used by state district court judges in criminal matters to determine probable cause and the sufficiency of evidence before binding a given case over for trial to the circuit courts, would have given them a chance to poke holes in the government’s evidence, parse discovery and impugn witness testimony. It would have also given their attorneys the chance to directly examine and cross-examine said witnesses in a public setting and may have allowed them an opportunity to motion for the dismissal of charges. What they got instead, their attorneys argued, was a backdoor decision from a Genesee Circuit Court judge – from the same venue in which they are being tried – to issue indictments for misconduct in office and willful neglect of duty related to the Flint drinking water disaster.
That action not only violated their due process rights, but some of the attorneys argued that it also violated the separation of powers doctrine in the Michigan Constitution. In essence, the grand juror engaged in a judicial inquiry (the review of evidence presented by the department to determine probable cause), two attorneys said, while also executing charging authority (an executive branch function bestowed onto prosecutors and in this case the attorney general) when the judge signed the indictments.
Some said that the decision to use a single-judge grand jury was done to give the case more credibility, as the department would walk into proceedings linked arm-in-arm with a judge who had already determined cause for felony charges against the group. Others said it was obvious to them that the department’s preference to use a grand jury process was an example of the government not just cutting corners to push forward a weak case but amounted to sawing those corners clean off and eschewing the normal criminal process. Thus, the attorneys asked justices to rule against the use of one-person grand juries as an unconstitutional practice.
The separation of powers arguments proffered by Lyon attorney John Bursch and Snyder attorney Devin Schindler appeared to resonate with several of the high court’s justices. Chief Justice Bridget McCormack at one point said she found Mr. Bursch’s arguments “compelling.” “This court has held time and again in (previous) cases … that the power to charge a defendant and what charge should be brought is an executive power that vests exclusively in the prosecutor,” Mr. Bursch said. “The fact that the prosecution agrees with the judge’s charging decision does not solve that separation of powers problem. If the Legislature tried to delegate the judicial power to a prosecutor and said that the prosecutor could try a case, the constitutional problem would not be alleviated if a judge happened to agree that the prosecutor could put on a robe and try the case. The prosecution here gives you no reason to overturn that long line of cases, and the cases that they cite are in opposite. None of them involve the question presented here.” While Peeler attorney Harold Gurewitz and Baird attorney Anastae Markou argued in the lane that their clients should have been afforded a separate examination by right, both said they agreed with their colleagues’ arguments on branch powers.
Officials with the Department of Attorney General have argued their decision to indict the defendants with a single-judge grand jury was in line with the various charging tools made available to them by the Legislature. Thus, the issue was not a constitutional one but rather an issue of statutory interpretation, as statute only mentions a preliminary examination as one of several possible avenues for a prosecutor or judge to determine probable cause. Assistant Attorney General Christopher Kessel doubled down on those arguments before the high court on Wednesday, as well, adding that it was the department’s reading of statute that a grand jury – whether that be a single judge, three judges or a group of citizens – performs the same function of a district court judge holding a preliminary examination. Since both entities determine probable cause, such a hearing would not have been necessary and would have been redundant.
However, Mr. Kessel’s arguments were met with some skepticism from several justices as preliminary examinations were a commonplace right for defendants in criminal proceedings. Chief among them was Ms. McCormack, Justice David Viviano, Justice Megan Cavanagh and Justice Richard Bernstein. While Justice Brian Zahra and Justice Elizabeth Welch asked a few questions, the high court’s chief justice, Mr. Viviano and Mr. Bernstein dominated the session. Justice Elizabeth Clement did not participate due to her previous role as counsel for Mr. Snyder.
Mr. Kessel also did not get far into his opening arguments in each case before justices began inundating him with questions. When the assistant attorney general (and Attorney General Dana Nessel‘s former law partner) was responding to Mr. Gurewitz’s arguments, Ms. McCormack pressed Mr. Kessel on grand juries, district court judges and their apparently shared functions in finding probable cause. The chief justice also highlighted that one process happens behind closed doors and the other happens in public. Ms. McCormack similarly noted that a citizen grand jury is a group of one’s peers that stands between the government and the accused, but here, the department had the government standing between the department and the accused.
Mr. Kessel again said that each made probable cause findings which were the very essence of due process, even if they came from different sources. He also noted that precedent shows judges had a wide swath of charging authority dating back to medieval times and in Michigan up until 1963, when the Michigan Constitution was ratified. In response to similar questioning on charging authority of judges from Mr. Viviano, Mr. Kessel said that the legislative intent in statute regarding the grand jury process was not historically clear, which left it up to interpretation on whether such authority was available to them. That said, records regarding the construction of the Constitution drafted in the 1960s show the framers indeed had that discussion and were poised to remove language regarding powers of conservators of the peace. They eventually chose to leave that portion under the advisement of a Wayne County judge, Mr. Kessel said, who had argued that the loss of that language would throw the one-person grandy jury process out, as well. “So, if our entire judicial system is based on following the Constitution, regardless of our personal feelings … what is crystal clear is that our framers decided to keep this language in our Constitution for the expressed purpose of allowing the one-person grand jury to remain,” Mr. Kessel said.
Both Ms. Cavanagh and Ms. McCormack as well as other attorneys noted that conservators of the peace have not had that power for hundreds of years. Mr. Bursch also quipped that there was no need to parse the duties of knights or sheriffs in the days of yore because doing so had no application to the judiciary in 2022. Mr. Bernstein asked Mr. Kessel if they decide to support his view, what the effect would be on normal criminal proceedings rather than high-level government criminal proceedings like the cases before them now. To that, Mr. Kessel said everyday citizens could potentially be affected but did not detail why. However, it was noted during oral arguments that such grand juries have proliferated in Genesee County since the tetrad were indicted in 2021.
My good friend Dan Mausolf, a fellow basketball official and former green’s superintendent at Radrick Farms Golf Course, has notified me of a silent auction for MSU’s turf research program, which is one of the best in the world. The auction will run from now until May 8. There are many great golf courses in Michigan who have donated rounds to the auction. If you are interested in participating and playing on a course you may not normally play, this is your opportunity. I will keep this link on my blog until May 8.
https://app.galabid.com/teetimes4turf2022/items
Pray for peace and tolerance. What are you doing to stop the violence? Get vaccinated and get your booster.
Quote of the Day: “Because a judicial indictment is not only an oxymoron but a structural error, the only proper remedy is dismissal. … Judges are umpires who call balls and strikes. They are not in the business of throwing the ball or swinging the bat, because to do so changes their role.” Nick Lyon’s attorney John Bursch said, quoting U.S. Chief Justice John Roberts.
Orchid of the Day: Michigan Supreme Court Justices for taking the Nick Lyon case.
Onion of the Day: AG Nessel for her continued prosecution of Nick Lyon and others
Questions of the Day: What is the motivation of AG Nessel to continue to process this case against Nick Lyon and others?
Video/Song of the Day: Nick Lyon attorney John Bursch arguing Nick’s case before the Michigan Supreme Court