(Source: MIRS.news, P 05/19/2022) Could the Attorney General's criminal cases against former state officials in the Flint water crisis crumble if the Michigan Supreme Court determines the state's one-person grand jury system is unconstitutional?
The short answer is yes.
Legal experts agree it could mean dismissal of charges against former Gov. Rick Snyder, his former aide Rich Baird, former health director Nick Lyon, former medical director Dr. Eden Wells and others.
"The problem for the AG's office is the Flint events happened in 2014 and 2015," former U.S. Attorney Matthew Schneider, an attorney with Honigman, told MIRS today. "The AG can only bring charges for events that happened within the last six years because of the statute of limitations. If the Flint defendants win, these cases are over."
MIRS spoke with several other attorneys who supported Schneider's analysis, but declined to go on the record.
Amber McCann, communications director with the Attorney General's office, declined to speculate about the court's ruling beforehand, noting that the "prosecution team will evaluate its options following a ruling from the court."
Prosecutors and the AG's office say the one-person grand jury is a prosecutorial tool they can use, and has primarily been used in Genesee, Kent and Wayne counties, although other counties have used it at some point.
Wayne County Prosecutor Kym Worthy helped lead the AG's Flint water crisis criminal investigation and attorney John Bursch, who argued for Lyon before the Supreme Court, said Genesee County learned from Wayne and has used the one-judge grand jury process in more three dozen cases since.
Bursch and other attorneys representing the Flint water crisis criminal defendants argue the process does not allow a judge to both investigate and charge as it violates the separation of powers between the judicial and executive branches, but the AG's office argued that it could use "whatever tools the Legislature" has given.
Robert Scigliano, an associate professor of political science at Michigan State University, wrote in 1959 that bills and resolutions "affecting the one-man grand jury were introduced" a number of times between 1917 and 1949.
Scigliano noted in his writing, "The Michigan One-Man Grand Jury and the Courts: An Appraisal," that it is not known how many times the process "was attacked in inferior Michigan courts" or how often it went to the Michigan Supreme Court.
"However, the law was a factor in about 70 cases accepted and decided by that court," he wrote. "Thus, the supreme court has had the question of upholding, modifying, or rejecting the one-man grand jury system, in whole or in part, before it much more frequently than the Michigan Legislature."
The Supreme Court heard Bursch and the other attorneys' arguments earlier this month, with some, including Justice Megan Cavanagh and Chief Justice Bridget McCormack questioning the method that gives a prosecutor role to the judge. (See "Supreme Court Questions One-Judge Grand Jury Process," 5/4/22
In Flint, Circuit Judge David J. Newblatt heard testimony in secret in 2020 before indicting Snyder, Lyon and the others in January 2021.
If the Supreme Court holds the one-person grand jury is unconstitutional, it will mark the second time criminal charges from the water crisis have been dismissed.
Worthy and Solicitor General Fadwa Hammoud announced in June 2019 that the department was dismissing pending charges brought by then-special prosecutor Todd Flood and was starting over after investigators found boxes of previously undisclosed potential evidence in the basement of a state building. (See "AG's Office Starting Over On Flint Water Prosecution Cases Based On 'New Information,'" 6/13/19.)
Flood was named special prosecutor by then-AG Bill Schuette and charges were brought against 15 individuals from the state and Flint city during his tenure. Hammoud removed Flood in April 2019. (See "Flood Washed Up On Flint Prosecutions," 4/29/19.)
