(Source: MIRS.news, Published 03/21/2022) Five Flint water crisis criminal defendants, including former Gov. Rick Snyder, cannot plead the Fifth Amendment during an ongoing civil litigation trial.
U.S. District Judge Judith Levy Monday denied the five defendants' request to quash a trial subpoena, which means they must appear at the civil trial against two engineering companies that provided consulting services to the city during the Flint water crisis.
"Because movants are under criminal indictment for the very conduct at issue in this civil case, there is no question that they would ordinarily be entitled to their silence," Levy's 21-page order reads.
"… Each of the movants voluntarily testified during the deposition phase of this case, and now wishes to invoke the privilege against self-incrimination on the same subject matter. They cannot do so," she noted.
Levy's order means those five – who wanted blanket immunity from questioning during the civil trial – must appear at trial and answer questions from their depositions, which were given in 2020. The judge will hold a hearing March 25 outside the jury's presence to determine how to handle specific objections to questions the engineering firms, Veolia North America (VNA) and Lockwood, Andrews & Newnam (LAN), may ask outside the deposition, which could lead to further risk of self-incrimination.
Alexander Rusek, who represents former Flint Public Works Director Howard Croft, said, “The Fifth Amendment protects the innocent, like Mr. Croft, when facing unwarranted criminal charges and we will continue to vigorously advocate to protect his constitutionally guaranteed rights in the future, including at the hearing scheduled for later this week before Judge Levy on this issue.”
Jason Brown, spokesman for Snyder's legal team, echoed Rusek's sentiments, saying they look forward to the Friday hearing.
“But there is another easy solution here. The Attorney General should drop the misdemeanor charges against Gov. Snyder with prejudice and he will be happy to testify on behalf of the state and taxpayers,” Brown said. “As he has proven time and again, he is willing and able to help.”
Messages seeking comment from attorneys representing the other criminal defendants were not returned today.
In addition to Snyder and Croft, aide Richard Baird and former emergency managers Darnell Earley and Gerald Ambrose previously gave detailed deposition testimony without invoking their Fifth Amendment right against self-incrimination.
Their attorneys told Levy they gave deposition testimony because they believed the statute of limitations had expired and Baird's attorney argued that they had been told by former Attorney General Bill Schuette's special prosecution team that Baird was not a target for criminal prosecution.
However, under current Attorney General Dana Nessel, a team led by Solicitor General Fadwa Hammound restarted the criminal investigation, which resulted in a one-judge grand juror issuing indictments against the five defendants. Those indictments were revealed publicly in January 2021.
Levy concluded that an assurance from Schuette's team does not provide Baird immunity or outlast the special prosecutor's tenure.
Snyder and Croft each face two misdemeanor charges of willful neglect of duty, while Ambrose and Earley face multiple counts of misconduct in office, which carries a penalty of up to five years in prison.
Baird faces the heaviest penalties, including extortion and perjury, which are 20- and 15-year felonies, respectively. He also is charged with misconduct in office and obstruction of justice, which are both five-year felonies.
The civil trial, on behalf of four Flint children alleging injuries from consuming the toxic Flint River water, began Feb. 15 with four days of jury selection followed by opening arguments on Feb. 28 and testimony beginning the next day. The trial is expected to take between four months and five months.
Plaintiffs' attorneys claim VNA and LAN were negligent in advising the city while the engineering firms deny blame, and noted in court documents that they plan to challenge whether the children were injured as alleged.
Civil claims against Snyder, other state officials and Flint employees were resolved in a historic $626.25 million settlement, which Levy gave final approval in November.
