Nessel's office fires Flood from Flint water prosecution team

Todd Flood, special prosecutor, present his evidence during the preliminary hearing July 25, 2018.

Lansing — Attorney General Dana Nessel’s office has fired special prosecutor Todd Flood from the Flint water criminal prosecution team because of documents discovered in a government building, a spokesman confirmed Monday.

Flood’s contract with the state was ended April 16, Solicitor General Fadwa Hammoud said Monday. He was told last week that the Attorney General's Office would not be renewing his contract, according to a source with knowledge of the situation.

Hammoud linked Flood's termination to the recent realization that legal "discovery was not fully and properly pursued from the onset of this investigation." On Friday, prosecutors asked a Genesee County judge for a six-month delay in the involuntary manslaughter case against former Michigan Health and Human Services director Nick Lyon after finding a “trove of documents” related to the Flint water crisis in the basement of a state building.

Flood had been turned into a special assistant attorney general in the Flint criminal cases after serving as a special prosecutor, serving more than three years. An appointee of former Attorney General Bill Schuette, Flood’s authority was curbed significantly in January when Hammoud was put in charge of the Flint prosecution and then brought in Wayne County Prosecutor Kym Worthy to help the prosecution team. 

While his service was appreciated, Flood's departure reflects the department's commitment "to execute the highest standards" in the Flint prosecutions and the continued transition to the "People's Law Firm," Hammoud said. 

"Our standards demand a full accounting of all evidence that may inform the people’s investigation," she said.

Flood said he was "truly humbled" by his experience working on the Flint water criminal prosecution team.

"In the time we have spent in Flint, we interviewed over 400 people, reviewed millions of
pages of discovery, and took pleas to advance the investigation," Flood said in a statement Monday evening.

"We conducted multiple court hearings and preliminary exams, placed hundreds of exhibits into evidence and successfully bound defendants over for trial. This complex case of official wrong-doing and betrayal of public trust has been prosecuted with the utmost attention to the professional standards that justice demands. I walk away knowing that I gave everything I had to give to this case. The people of Flint deserved nothing less."

In court presentations last week in Genesee County, according to the Associated Press, questions were raised about whether was anything significantly new in the boxes containing Flint water documents. 

Hammoud's prosecution team appears to be concerned that the discovery of documents could be used by defense lawyers to argue the prosecution withheld evidence, said Peter Henning, a Wayne State University law professor.

The development could jeopardize the criminal case against Lyon, the highest-ranking official from former Gov. Rick Snyder's administration to be charged in cases linked to Flint's lead-contaminated water crisis, said Henning a former federal prosecutor.

Flood may have become a scapegoat for the files, but he was responsible for ensuring all of the evidence got turned over to the defense under a U.S. Supreme Court precedent, he said.

Prosecutors “may have to reopen the preliminary exam” for Lyon and perhaps others, Henning added.

At a Feb. 21 press conference, Hammoud said continuity was important and that her office was "not throwing everything out and starting from zero.”

“I think that it’s important to have that institutional knowledge," she said in reference to Flood. "I think that his role and others’ role is going to be valuable to this team, and I appreciate the work that has been put forward.”

Prosecutor's health scare

Flood, who just turned 54, had a recent health scare as he underwent surgery this month to put a stent in a main heart artery to relieve a significant blockage. He has a law office in Royal Oak.

“I am on the mend and will be back to work in 30 days or so with more appreciation for the preciousness of life,” Flood wrote on his Facebook page earlier in April. “Certainly, I will be working on finding the balance in life that keeps me healthy.”

Solicitor General Fadwa Hammoud talks about the Flint Water crisis and her opportunity to work with Wayne County Prosecutor Kym L. Worthy.

Flood originally charged 15 people in the Flint prosecutions and struck plea deals with seven defendants who have pleaded no contest to misdemeanors. 

Flood successfully convinced 67th District Court judges to bind over for trial Lyon and former Chief Medical Executive Eden Wells on criminal charges related to the 2014-15 Legionnaires’ disease outbreak that killed 12 individuals and sickened at least 79 others. 

The complex, high-profile cases took nearly a year of testimony during the preliminary exams, which in other criminal cases usually only take a few days.

Preliminary exams against former Flint emergency manager Darnell Earley and Howard Croft, Flint's former director of public works, were recently suspended as the Attorney General's office continues its review of all of the criminal cases. 

It’s unclear what connection the recently rediscovered boxes have to Lyon, who is charged with involuntary manslaughter in the Legionnaires’ disease outbreak. He is accused of failing to warn the public in a timely manner about the respiratory disease before Snyder informed the public about it in mid-January 2016.

The prosecution team will "aggressively pursue all evidence" moving forward, Hammoud said Monday. 

"A failure to meet this standard would undercut the cause of justice," she said.

Nessel received a resignation letter from Flood prior to taking office on Jan. 1, spokesman Dan Olsen said. She didn’t feel it was appropriate to accept the resignation prior to taking office, so she refrained from taking any action in her first couple months in office that would place her on either side of the conflict wall, Olsen said.

The decision to end Flood’s contract was eventually made by Hammoud, who leads the criminal investigation while Nessel handles the civil side of the Flint litigation, he said. The only communication Nessel has had with Flood occurred before Jan. 1, Olsen said. 

“The attorney general has always believed that any staffing-related decisions should be evaluated by career prosecutors on the criminal side of the conflict wall,” he said.

Will documents delay cases?

Genesee County Judge Joseph Farah is considering an appeal in the Lyon case and planned to release a decision no later than May 17, more than three months after hearing arguments. Farah has scheduled a May 3 hearing on the prosecutor's request for a delay on that decision.

“We will vigorously oppose it. This is another stall tactic by the prosecution,” Lyon’s attorney, Chip Chamberlain, told the Associated Press last week.

Prosecutors said they were informed in February by Peter Manning, a division chief in the attorney general’s office, that the boxes “were languishing in the basement of a state-owned building.” Other attorneys in the office were aware of the records because they were defending state officials in civil lawsuits related to the Flint water scandal, Assistant Attorney General Daniel Ping said.

They indicated that the records were duplicates of what already had been given to prosecutors, but investigators said that wasn’t true, Ping wrote.

Flint Mayor Karen Weaver said in a Monday statement "I respect the decision that the solicitor general has made regarding the changes to the prosecution team."

"I will continue to voice my desires to have truth, transparency and justice for Flint residents," she said.

"I ask that we not get caught up on the changes, but that we continue to keep the focus where it should be, and that is on making the residents whole after such a traumatic experience.”