(Source: MIRS.news, Published 06/28/2022) The current criminal case against one of nine state officials charged with crimes in the Flint water crisis, former Department of Health and Human Services Director Nick Lyon, will be dismissed after the Michigan Supreme Court invalidated the indictment Tuesday.
Attorneys for the remaining defendants say that action should also spill over to their clients' criminal cases, but Solicitor General Fadwa Hammoud contradicted that presumption, saying her team "is prepared to move forward through that process," which means filing charges at the district court level and preliminary examinations for those facing felony charges.
"The citizens of Flint should know that these cases are not over," she said. "Public commentary to the contrary is presumptive and rash. … We still believe these charges can and will be proven in court. …
"We are prepared and determined to prove the allegations against the defendants in court and are committed to seeing this process through to its conclusion," Hammoud added.
Lyon, who was indicted in January 2021 on nine counts of manslaughter and one count of neglect of duty in connection with the Flint water crisis, said he is "grateful" for the court's "extraordinary step of finding time to hear our case, and I am particularly satisfied that the decision to dismiss all the charges against me was unanimous."
An attorney for former governor aide, Richard Baird, and health official Nancy Peeler's attorney both said today's opinion should result in their client's charges being dismissed while former Gov. Rick Snyder's legal team said in a statement it will move immediately to dismiss all criminal charges against Snyder, who was indicted on two misdemeanor counts of willful neglect of duty.
The court's 6-0 opinion from Chief Justice Bridget McCormack, which also came in the cases for Baird and Peeler, held state law – MCL 767.3 and MCL 767.4 – allows a one-judge grand jury to "investigate, subpoena witnesses, and issue arrest warrants," but not indictments.
Rather, the court held, if a defendant is indicted, he or she is then entitled to a preliminary examination, at which a judge would decide if there's probable cause to send the cases to circuit court for trial.
The Supreme Court did not, however, decide the constitutionality of a one-man grand jury.
The prosecution team sought the one-judge grand jury in 2020 and Genesee County Circuit Judge David J. Newblatt served that role, hearing testimony before indicting nine former state officials, including Snyder in January 2021.
The state argued that a preliminary examination is not necessary since Newblatt made a finding of probable cause.
"But the argument confuses some basics," McCormack wrote. "Probable cause to arrest … is different from probable cause to bindover. …
"And if a criminal process begins with a one-man grand jury, the accused is entitled to a preliminary examination before being brought to trial," McCormack wrote, calling the use of the one-judge grand jury a "Star Chamber comeback," a reference to a centuries-old, secretive court abused by high-ranking officials in the Middle Ages.
Justice Richard Bernstein, who concurred, wrote separately to acknowledge the effect the court's decision would have on Flint residents, but he held the prosecution's position "runs afoul of the basic notions of fairness that underlie our adversarial system."
Prosecution of defendants, Bernstein noted, must adhere to procedural requirements "because of the magnitude of the harm" done.
"The Attorney General has invoked obscure statutes … to deprive these defendants of their statutory right to a preliminary examination," he wrote. "… I do not believe we can tolerate such a procedural offense."
Hammoud, who spearheaded the AG's Flint prosecution team co-led by Wayne County Prosecutor Kym Worthy, defended the grand jury route, saying the team relied on “settled law and the well-established prosecutorial tool” to bring the charges.
Worthy, who has used the grand jury process in Wayne County more than 30 times since 2019, said she will review pending cases in her office that may be affected by the ruling.
“It is extremely difficult for me to hear the Michigan Supreme Court asserting an intellectual argument against the one-man- grand-jury when I know that people in my community are under siege with the homicides, assaults with guns and gang wars exacting a horrible toll on families for generations to come,” she said. “This has been a powerful tool to combat the ‘no snitch mentality’ and I am disappointed and fearful for what the future will hold without this important criminal process,” she said.
In her announcement, Hammoud quoted Bernstein's opinion, which noted, "If the allegations can be proved, it is impossible to fully state the magnitude of the damage state actors have caused to an innocent group of people – a group of people that they were entrusted to serve. The Flint water crisis stands as one of this country's greatest betrayals of citizens by their government."
Baird's attorney, Randall Levine, said the Supreme Court's decision will also end the case against Baird, who is charged with perjury, misconduct in office, obstruction of justice and extortion.
Baird's appeal before the Michigan Court of Appeals was placed on hold, pending a decision from the Supreme Court.
"This should end the nightmare against Mr. Baird," Levine said. "… It's merely a ministerial act now for the Court of Appeals, who held Mr. Baird's application in abeyance, to order a dismissal consistent with the Supreme Court. …
"We're going to celebrate what we consider to be a tremendous victory for Mr. Baird," he added. "He's a wonderful man. He worked tirelessly for the citizens of Flint. He was unfairly vilified by a prosecutor attorney who was politically motivated and who tried to mollify the citizens of Flint who are justifiably angry over the failures of government. They weren't Mr. Baird's failures, but he was made, by being indicted, to account for them."
If charges are dismissed, Levine acknowledges that "there are counts in Mr. Baird's indictment" that may not be time-barred by the six-year statute of limitations.
Peeler's attorney, Harold Gurewitz, said he hopes “this is the end of the proceedings for my client,” but if Hammoud's team re-issues charges and proceeds, he will “pursue the appropriate remedies.” He declined to say whether the statute of limitations still applies to Peeler's charges of two counts of misconduct in office, which is a five-year felony, and a misdemeanor count of willful neglect of duty.
“They could have moved forward a year and a half ago,” he said. “… In my view there will be a dismissal of what's pending. … More than six years have gone by and we will certainly pursue all the appropriate responses to every charge filed. If there's a preliminary examination, that's terrific, I look forward to it.”
Snyder's legal team applauded today's ruling, saying it "leaves no doubt about how Attorney General Dana Nessel's office egregiously mishandled these cases from the beginning."
Newblatt also indicted former Flint public works director Howard Croft on misdemeanor willful neglect of duty while former emergency managers Darnell Earley and Gerald Ambrose, and former chief medical executive Dr. Eden Wells were indicted on felonies.
Efforts to reach their attorneys were unsuccessful.
Justice Elizabeth Clement did not participate due to her prior involvement as chief legal counsel for Snyder, who is expected to take the witness stand on Thursday in a federal civil trial arising out of the water crisis.
Snyder is expected to invoke his Fifth Amendment privileges, meaning he will not testify in person. Instead, the jury will hear his video deposition testimony, which is expected Wednesday.
