(Source: MIRS.news, Published 10/04/2022) A Genesee County Circuit Court judge threw out felony charges against seven former state officials charged in connection with the Flint water crisis.
Genesee County Judge Elizabeth Kelly's order follows the Michigan Supreme Court's ruling that a one-judge grand jury cannot issue indictments.
"Simply put, there are no valid charges to remand for preliminary examination," the judge's six-page opinion reads.
The ruling is a loss for the Attorney General's Flint water crisis team, led by Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy, who dismissed pending charges in 2019 brought under the former AG's special prosecution team.
Hammoud's team asked the court to send the charges against the defendants – former Gov. Rick Snyder's communications director Jarrod Agen and advisor Richard BAIRD; former Flint emergency managers Gerald Ambrose and Darnell Earley; former health director Nicholas Lyon and employee Nancy Peeler; and former chief medical officer Eden Wells – for a preliminary examination.
But, Kelly noted that as a result of the Supreme Court ruling," anything arising out of the invalid indictments are irreconcilably tainted from inception."
In a statement late today, the prosecution team vowed to "exhaust all available legal options to pursue this case and that pledge remains," but whether they can against all current defendants is less certain.
Harold Gurewitz, attorney for Peeler, said the AG's office could, theoretically, try again to reissue charges, but the six-year statute of limitations has passed for his client.
Kelly did not rule on the argument the statute of limitations has run out, essentially leaving that until a time the state recharges.
"We're both very pleased this has finally occurred," Gurewitz said about the dismissal. "The judge's decision affirms the use of the one-man grand jury to prosecute my client was wrong from the beginning and dismissal is welcomed."
However, Lyon could potentially face a third round of charges as he faced allegations of involuntary manslaughter, which has a 10-year statute of limitations.
Lyon's attorney, Charles Chamberlin, and Well's attorney, Steven Tramontin, both have repeatedly tried to get the court to rule on the merits of the cases against their clients, but the courts haven't ruled.
In 2019, it was believed now-retired Circuit Judge Joseph FARAH would "severely undercut" the prosecution's theories, but before a decision could come, Hammoud's team dismissed the charges and started over.
"Director Lyon is confident that a fair and impartial investigation would exonerate him," Chamberlain said. "… The prosecution has resorted to misleading and unfounded public statements about the case indicating it may file charges – for a third time.
"There was no basis in 2017 to charge Director Lyon, no basis in 2021 to charge him again and there is no basis today," he added.
Tramontin, and co-counsel Jerry LAX, noted that criminal charges against Wells are also "meritless" and "should end now."
The defense attorneys have fought the indictments since they were issued in January 2021 and one of their chief arguments has been the use of the one-person grand jury process and the lack of a taint team.
Agen's attorney, Charlie Spies, said Kelly's ruling "validates that this case was always a political prosecution, with the phony indictment … only secured through illegitimate and unethical means."
"We appreciate the multiple judges that have ruled Attorney General Dana Nessel's failed train wreck of a case against her political opponents," Spies said.
Baird's attorney, Randall Levine, said the government "deliberately chose" the "archaic statute" … hoping to deny him a right to preliminary examination."
Gurewitz said the one-person grand jury statute has needed to be addressed for decades as the U.S. Supreme Court twice criticized it, in 1948 and 1958. In the 1948 ruling, In re Oliver, the high court called Michigan's one-person grand jury process "unique" and "peculiar."
Gurewitz said the issue is now clarified, and he's "pleased for that reason as well."
The AG's Flint water prosecution team disagrees, saying the tool has been used and "historically upheld by the appellate courts."
"However, it was not until its use in this case against these privileged and well-funded defendants that the courts did see fit to overturn established precedent and procedure," the team's statement reads. "… There are not adequate words to express the anger and disappointment felt by our team, who have spent years on this case only to see it thwarted based upon a new interpretation of a nearly century-old law."
In a separate order, Kelly affirmed her November 2021 protective order prohibiting additional release of confidential or privileged documents, which had been released prior to the defense attorneys.
Kelly's order does not apply to Snyder or Howard Croft, who are charged in District Court with misdemeanors.
Snyder's attorney, Brian Lennon, said Snyder's case is still on appeal from the District Court to Circuit Court Judge F. Kay Behm, with their brief due Monday. Oral argument in that case is set for Oct. 26.
