A high-stakes legal drama will unfold Thursday in a Flint courtroom as the state begins the unprecedented prosecution of its top health official for involuntary manslaughter, the most serious criminal accusation to emerge from the city’s tainted water crisis.
The office of Attorney General Bill Schuette has charged Michigan Health and Human Services Director Nick Lyon with killing a Genesee Township man by deliberately failing to warn the public about an outbreak of the deadly Legionnaires’ disease, an alert that might have saved his life.
Although the prosecution argues the death is related to the changing of Flint’s water supply, experts and state health and environmental officials have clashed over whether a direct link between the two has been established.
In Thursday’s preliminary exam in 67th District Court, Schuette’s legal team must persuade Judge David Goggins that there is probable cause for Lyon to go to trial. The state health director’s attorneys may try to get the manslaughter charge dismissed, legal experts said, but will have to decide how much to question the prosecution’s witnesses.
“It is hard to get a charge dismissed at preliminary exam,” said Peter Henning, a Wayne State University law professor and former federal prosecutor. “These are the opening moves of a chess match.”
The difficulty will come if the case goes to trial because the prosecution must prove a direct linkage for what Lyon did or failed to do and the death of 85-year-old Robert Skidmore in December 2015, private attorneys and law professors said.
“You are going to have to show that these increased, dangerous impurities in the water present a clear and immediate danger, and you have to show that these impurities in the water actually caused the Legionnaires’ disease,” said Adam Candeub, a law professor at Michigan State University.
“That’s a very high, causal hurdle to get over because people get Legionnaires’ disease for all sorts of reasons. And you’d have to show that it was this water that he got that Legionnaires’ disease and that’s a hard thing to prove.”
This is also is an extraordinary case, experts said.
“It’s very rare to see a circumstance like this where public officials have been charged with an involuntary manslaughter charge, but this Flint water situation is a pretty unique situation,” said Robert Harrison, a longtime criminal defense attorney who runs a Bloomfield Hills firm.
Schuette is running for the Republican gubernatorial nomination in 2018, but has said his office has filed charges against 15 state and Flint officials based on the legal merits and to “seek justice” for the residents of Flint.
Term-limited GOP Gov. Rick Snyder has defended Lyon, kept him on the job and argued that other defendants “still have not had their day in court” despite being suspended from work for over a year. The defendant’s attorneys have accused Schuette’s team of making false statements and trying the case at public press conferences.
Lyon and four other officials are accused of causing the death of Skidmore, which carries a penalty of up to 15 years in prison and a $7,500 fine. Others charged with involuntary manslaughter are former Flint Emergency Manager Darnell Earley, former state Department of Environmental Quality Drinking Water chief Liane Shekter-Smith, state Water Supervisor Stephen Busch and former Flint Water Department Manager Howard Croft.
There were 12 deaths and 79 other people sickened by Legionnaires’ disease in 2014-15. Experts and state health officials have debated whether the Legionnaires’ outbreak should be blamed on the April 2014 switch to Flint River water as the city’s drinking source, which led to lead contamination and other issues, or McLaren Flint Hospital, where many of the cases originated.
Legal duty to report?
Lyon is also charged with misconduct in office for allegedly trying to cover up the source of the Legionnaires’ outbreak, which is punishable by up to five years in prison and a $10,000 fine. But the felony misconduct charge is expected to take a back seat at the preliminary exam to the involuntary manslaughter charge.
But Josh Blanchard, a Grand-Rapids-area criminal defense attorney and secretary of the criminal law section of the State Bar of Michigan, said Schuette’s team faces many questions.
“One of the first questions is: Did he actually have a legal duty to report to the citizens that there was this previous outbreak?” Blanchard said about Lyon. “First, he would have to have made a determination that there was an imminent danger before he would have any duty. I’m not sure they are going to be able to prove that he did that.”
Email records released by Snyder’s administration show Lyon was aware of a spike in Legionella — bacteria that causes Legionnaires’ disease, a form of pneumonia — as early as January 2015 but didn’t put out a public alert. Snyder informed the public about the Legionnaires’ outbreak in January 2016.
Lyon has said he knew about Legionnaires’ for months but wanted to wait until investigators in the Health and Human Services Department finished their own probe.
Skidmore’s death certificate shows that he died Dec. 13, 2015, from “end stage congestive heart failure.” The certificate listed diabetes as the only contributing cause to the death.
But Schuette’s charging document indicates that a McLaren Flint Hospital doctor on June 2, 2015, collected a sample from Skidmore that tested positive for Legionella and that the Genesee County medical examiner will “not refute the medical doctor’s findings that Legionnaires’ Disease was a cause of Robert Skidmore’s death.”
Cause and effect
Blanchard said the prosecution will have a “causation issue” because the Legionnaires’ outbreak happened earlier than Skidmore’s death.
“Unless they knew that the first outbreak would continue, failing to tell the citizens of the first outbreak doesn’t necessarily cause the second one,” he said.
“Failure to inform people has to be the cause and it seems like a little bit of a stretch to prosecute a bureaucrat for not pushing out information, unless they have just some overwhelming evidence that he knew that there was an egregious risk and he chose to hide it for some reason,” he said “And you’ve got to really wonder what motive would he have to hide that.”
The case could also hinge on expert testimony, Henning said. Experts have to show that there was a reasonable medical certainty that something could happen, and this could be a problem for the prosecution, he said.
“There is a lot wiggle room – how much can the expert really say: I know this really happened?” Henning said. “Are you really sure about this possibility or that possibility?”
Explaining motive for the delay in declaring an outbreak is also an issue. Blanchard said these sort of decisions might be seen in private enterprises “where there is a profit motive.”
But the “government employees don’t have that profit motive,” he said. “While the prosecutors are not required to prove motive, and there’s a jury instruction on point, it’s something that jurors always wonder about.”
One witness the prosecution has said it will call is retired state epidemiologist Corinne Miller, who is serving one year of probation for willful neglect of duty under a plea deal. Schuette’s office has said Miller will testify that she told Lyon in January 2015 and September 2015 about the outbreaks of Legionnaires’ disease and the possibility that Flint’s water was a possible source of the outbreak.
Lyon’s attorneys are likely to sit back and listen to witness testimony without asking many questions, looking for weaknesses or inconsistencies that can be exploited at trial, Henning said.
“Lyon’s lawyer doesn’t want to tip his case too much,” he said, “while Special Prosecutor Todd Flood has to lay out enough of his case to convince the judge that there is probable cause to proceed to trial.”