(Source: MIRS.news, Published 05/04/2022) The one-judge grand jury process used to criminally charge former Gov. Rick Snyder, former health director Nick Lyon and seven other officials in connection with the Flint Water crisis is "not only an oxymoron, but a structural error," an attorney told the Michigan Supreme Court Wednesday.
As a result, John Bursch, a former solicitor general who represents former health director Nick LYON, told the justices that the only remedy for the nine former state and city officials facing criminal prosecution is dismissal of the charges.
"Both legally and politically this prosecutor owns the charge, not the judge, and this court should not politicize the judiciary by authorizing a judicial charging power," he said.
Assistant Attorney General Christopher Kessel, who is the AG's former law partner, countered that it is the AG's responsibility to use "whatever tools the Legislature" has given.
"It was the decision of the Office of the Attorney General to pursue this specific method of prosecution," he said. "… There are a lot of reasons why this kind of prosecution is especially necessary in cases like this, where … we have high ranking members of the government with the potential to involve themselves in prosecutions.
"We have witnesses that are concerned about their jobs or about their safety. We have people who may or may not have wanted to come forward," Kessel said.
Justice Megan Cavanagh noted that the method gives a prosecutor role to the judge and Chief Justice Bridget McCormack also noted giving a judge the charging decisions, which is an executive decision, is when “the problems arise.”
Genesee County Circuit Judge David J. Newblatt served as the one-judge grand jury, hearing testimony in 2020 before indicting Lyon, Snyder and seven others in January 2021.
Bursch told the court that it wasn't Newblatt who served as the investigator during the process, but the AG's office that "was doing all the work and feeding the judicial officer everything," including communicating with the judge off-the-record. He said the “train wreck” also included no order giving the judge indictment power, it was one-sided and there was a lack of court rules.
Newblatt then issued indictments - felony charges against six of the defendants, including Lyon who is charged with nine counts of involuntary manslaughter, that went directly to the Circuit Court – without a preliminary examination. Snyder and a second defendant are charged with misdemeanors in district court.
Bursch and attorneys for former Snyder aide Richard Baird and former maternal, infant and early childhood director Nancy Peeler asked the Supreme Court to give their clients a preliminary examination, which gives the defense a peek into the state's evidence, including witness testimony.
Justice Richard Bernstein questioned the importance that the public doesn't perceive the "government is cutting corners" by skipping the preliminary examination stage.
Kessel replied that the defendants are not entitled to choose the method of prosecution and that for more than a century, the "creation and use of the one-person grand jury has been recognized and upheld as a constitutionally permissible method of prosecution in this state."
Bursch countered that corners "were not just being cut, they were being completely sawed off at every single stage" of the AG's investigation.
"At the end, the prosecutor took no political accountability for issuing the indictment because the judge took all the heat for that, and that's exactly the opposite way that this is supposed to work," Bursch said. “The separation of powers ensures that the judiciary stays in the decision lane and to a limited extent under this statute and investigatory lane, and that the prosecutor issues the indictment.”
The justices expressed unease with the blending of judicial duties and prosecutorial duties as occurred in the one-judge grand jury - a process that is confidential.
Bursch noted that the method occurred mostly in Wayne County without challenge. Wayne County Prosecutor Kym Worthy helped lead the AG's Flint water crisis criminal investigation.
However, since the AG's use of the one-judge grand jury, Genesee County prosecutors have learned "they can go before the secret judicial officer" and get an indictment without taking "political responsibility."
"All of a sudden they found they really liked it and there have been 70 of them that have followed this set of cases," he told the court. "That's an extraordinary change in practice and that's why it's so important that this Court address this question and put a stop to it."
