Today will be the last time I complain about the political prosecution of Nick Lyon, Governor Snyder, and others in the Flint Water Crisis. For two years I have said this case should never have been a criminal case. Decisions made in good faith, regardless of the results, are not a crime.
To treat decisions that end with poor results as a crime would open a can of worms that would never end. It would discourage people from making decisions for fear of prosecution. It would discourage people from seeking public offices for fear of prosecution.
Today Bridge Michigan published an article on the Flint Water Crisis titled. Flint water cases doomed by missteps from Dana Nessel’s office” Here is the article which I have edited to reduce the length of the article.
Multiple legal missteps likely doomed the chances that Michigan Attorney General Dana Nessel’s office would force top state officials to stand trial on charges for their roles in the Flint water crisis, experts say. Legal experts and lawyers involved in the cases point to pivotal decisions made by Nessel’s team: Throwing out initial criminal charges brought under her predecessor’s watch; then restarting the investigation in 2019 and gathering evidence without adequate measures to weed out documents that should have been exempt from disclosure.
But perhaps the riskiest was relying on a one-person grand jury to issue indictments. The rarely-used process ultimately undid the investigation after the Michigan Supreme Court rejected its use last year — and rejected subsequent appeals in recent months.
“In cases of high public import, when you do things that are unusual, you are necessarily opening yourself up to criticism and court challenges,” said Leonid Feller, a former federal prosecutor and expert in white-collar crime who is now a partner at Quinn Emanuel in Chicago.
In hindsight, experts said, the cases’ troubles under Nessel’s leadership began soon after she took office.After accusing Schuette on the campaign trail of being an “opportunist” who used the crisis to further his political ambitions, Nessel quickly installed her own appointees to lead the investigation and dismissed Schuette’s appointed special prosecutor, private attorney Todd Flood.Soon, the Nessel appointees — Chief Deputy Attorney General Fadwa Hammoud and Wayne County ProsecutorKym Worthy — opted to throw out charges brought by Flood’s team and start the investigation anew. In a press release at the time, Hammoud and Worthy said they had “immediate and grave concerns about the investigative approach and legal theories” used by Flood and his team, and accused them of failing to pursue “all available evidence.” Cases were dismissed against eight defendants,…
The decision to restart the investigation left the Nessel prosecutors dangerously close to the statute of limitations — the state-imposed time limit in which prosecutors can file charges for crimes. In Michigan, that limit is six years for most felonies, and 10 years for involuntary manslaughter and some others. Hammoud and Worthy knew they were under a time crunch. So did Flint residents, some of whom were dismayed by the move to drop the original cases. Rusty Hills, a public policy lecturer at the University of Michigan who advised Schuette during his tenure as attorney general told Bridge Michigan he felt it was a risky gambit for the new prosecutors, given how little time they had to refile criminal charges. “If everybody had to do it over again,” Hills said, “I’m not sure that that’s the decision that would be made, because I think that just set back the effort.”
Hammoud and Worthy had little room for error or delay. Their team set about collecting millions of documents and electronic devices relating to officials connected to decisions made about Flint, and dozens of new witnesses. The pair said their aggressive evidence-gathering enabled them to bring charges the Schuette administration had not. New defendants included Snyder, the former governor, but also Richard Baird, a senior adviser to Snyder, and Jarrod Agen, a former Snyder chief of staff and spokesperson. Lyon, Wells, Ambrose and Earley were also named.
But the approach would backfire. Attorneys for several of the defendants complained that investigators had collected documents that should have been protected by attorney-client privilege. In response, Genesee County Judge Elizabeth Kelly ordered prosecutors to hire an independent “taint team” to review the evidence and weed out privileged items. Prosecutors estimated that complying with the order would add years and tens of millions of dollars to the investigation — another delay for a case that couldn’t afford one. Feller, the former federal prosecutor, said in cases involving potentially privileged documents, prosecutors usually anticipate the need for a taint team and assemble one before gathering evidence. That saves time and protects prosecutors, who could be disqualified from a case if they’re found to have viewed privileged documents.“It really should never come down to a court ordering you to have a team,” Feller said.
The legal setback would later collide with another misstep by prosecutors: The unconventional decision to secure indictments from a one-person grand jury. In a typical criminal case, prosecutors announce charges and publicly present evidence at a pre-trial hearing. At that hearing, called a preliminary exam, prosecutors must show they have enough evidence to go to trial and the defense is allowed to hear and question witnesses and try to convince a judge the case is too thin.
A one-person grand jury is unique to Michigan and not commonly used, though Worthy’s office frequently used one-person grand juries in violent crime cases in Wayne County. Using this procedure has its benefits. It’s quicker, for one. And it can protect witnesses from threats or intimidation before trial. Defense attorneys had long seen one-person grand jury indictments as an affront to due process. But until Flint, none had ever challenged the procedure’s constitutionality in Michigan.
I gotta say, shame on myself for not challenging it before,” said Ben Gonek, a Detroit-area defense attorney with experience in such cases. Bill Swor, an attorney for former emergency manager Gerald Ambrose, said the law was clear to him, and later to the state’s highest court: a judge could not constitutionally be a grand juror and issue indictments. “It was a flawed decision by the AG’s office or whoever made the decision (to use it),” Swor said.Several Flint defendants argued the closed-door process denied them the right to a preliminary exam where they could hear and rebut the evidence against them.
The Supreme Court unanimously agreed in June 2022, ruling that Michigan law doesn’t allow a single grand juror to issue indictments. “The prosecution cannot simply cut corners in order to prosecute defendants more efficiently,” Justice Richard Bernstein, who was nominated by Democrats, wrote in a concurring opinion. “To allow otherwise would be repugnant to the foundational principles of our judicial system.”
The ruling prompted lower courts to dismiss all charges against the Flint defendants on procedural grounds. In most cases, re-filing appeared impossible, given the six-year statute of limitations that covered most of the charged offenses. Lyon and Wells were charged with involuntary manslaughter and Baird was charged with extortion — offenses with a longer, 10-year statute of limitations. But in a statement to Bridge, Hammoud and Worthy acknowledged the court order requiring a review of evidence for “taint” likely would have dragged investigations past the statute of limitations for those crimes, too.
Legal experts said it’s difficult to convict public officials for disastrous policy decisions without clear evidence of malicious intent. “I can’t think of any successful cases,” Feller said. “But candidly, I can’t think of a whole lot of cases being brought on that kind of theory.
.”Attorneys and allies of the defendants have long complained that political zeal blinded Schuette and Nessel to the weakness of their cases. “They were looking for that opportunity to go after (state officials),” said John Truscott, a long-time Republican who was once a spokesperson for Gov. John Engler. “They knew that would get the national attention they were seeking.”
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Quote of the Day. There’s gonna be some changes,” Izzo said. “I’m really big on giving guys a chance but there’s some things that happened over and over (that can’t happen.)” MSU head basketball coach, Tom Izzo, after his number three Spartans were upset by James Madison University in the season openers for both teams.
Orchid of the Day: Bridge Magazine for always telling it like it is.
Onion of the Day: MSU starting five. Not because of the loss, but because of the lack of effort during the first half of the game.
Question of the Day: Will last nights loss be a wake up call for the Spartans?
Video of the Day: New Editions’ tribute to the Spinners at the 2023 Rock and Roll Hall of Fame Induction Ceremony.
I have read all of your concerns about the validity of the case against those who were responsible for the tragic results in the Flint water crisis. The final judgement has been issued. I have relatives who are affected by what happened. I know first-hand the trauma and lasting medical issues they continue to deal with to this day. Justice?