Snyder wants Flint charges dropped after high court nixes one-judge grand jury indictments

Beth LeBlanc
The Detroit News

The Michigan Supreme Court on Tuesday overturned the state's use of one-man grand juries to issue indictments in the Flint water criminal cases, a decision that is likely to upend the second round of prosecutions linked to the city's water crisis. 

Former Gov. Rick Snyder's legal team said they would use the ruling to get two misdemeanor charges against the two-term Republican governor tossed out.

Michigan Gov. Rick Snyder testifies before a House Oversight and Government Reform Committee hearing in Washington, Thursday, March 17, 2016, to look into the circumstances surrounding high levels of lead found in many residents' tap water in Flint, Michigan. (AP Photo/Andrew Harnik)

Solicitor General Fadwa Hammoud said Flint residents should know the cases are not over and that the prosecutorial team is "prepared to move forward."

"We relied upon settled law and the well-established prosecutorial tool of the one-man grand jury, used for decades, to bring forward charges against the nine defendants in the Flint water crisis," Hammoud wrote in a Tuesday statement. "We still believe these charges can and will be proven in court."  

In a unanimous decision, the state Supreme Court found that a one-judge grand jury can be used to investigate, subpoena and issue arrest warrants but it cannot be used to indict an individual.

The justices also ruled that the Genesee County Circuit Court erred in denying a motion to dismiss a case against former state health Director Nick Lyon, whose first round of criminal charges were dismissed by prosecutors in June of 2019.

More:Flint defendants prompt justices to question Michigan's use of one-man grand jury

The high court found that state health official Nancy Peeler and former Gov. Rick Snyder aide Richard Baird had a right to a preliminary examination following their indictments.

Attorney General Dana Nessel's prosecution team had been trying to move straight to trial with Peeler, Baird and other defendants, including Snyder.

The justices remanded the three cases at issue back to Genesee County Circuit Court for reconsideration in light of the ruling.

Snyder's legal team said Tuesday it would immediately file to dismiss all criminal charges against the former governor, who, in January 2021, was charged with two misdemeanor counts of willful neglect of duty over his handling of Flint's lead-tainted water crisis. Baird's team said a motion to dismiss in his case is already pending in the Michigan Court of Appeals.

"Attorney General Nessel and her political appointee Solicitor General Fadwa Hammoud staged a self-interested, vindictive, wasteful and politically motivated prosecution," Snyder's team said in a Tuesday statement. "The people of Michigan will recall how Solicitor General Hammoud took to the stage at every opportunity to grandstand, but they now see the truth from Michigan’s highest court of law."  

MORE: Here are nine officials charged in Flint water crisis

While the Supreme Court's order for dismissal is specific to Lyon, it's likely all of the defendants indicted through the grand jury process can file motions to dismiss in Genesee County based on the high court's Tuesday ruling, said attorney John Bursch, who argued Lyon's case before the Supreme Court.

"The way the office went about bringing these charges shows that the charges were illegitimate from the start," Bursch said. 

The solicitor general said her team is determined to continue pursuing the allegations against the defendants.

"Our reading is that the court’s opinion interprets the one-man grand jury process to require charges to be filed at the district court and include a preliminary examination," Hammoud said.

'Star Chamber comeback'

In the majority opinion, Chief Justice Bridget McCormack referred to the attorney general office's use of a one-judge grand jury as a "Star Chamber comeback," a reference to a centuries-old, secretive court abused by high-ranking officials in the Middle Ages. 

"A Genesee County judge served as the one-man 'grand' jury and considered the evidence not in a public courtroom but in secret, a Star Chamber comeback," McCormack wrote.

"The one-man grand jury then issued charges. To this day, the defendants do not know what evidence the prosecution presented to convince the grand jury (i.e., juror) to charge them." 

The majority found that the law as it stands includes a right to a preliminary examination, but does not expressly permit a judge to indict an individual. In the past, one-judge grand juries have issued indictments on the "unchallenged assumption, until now" that the law permitted as much. 

Justice Richard Bernstein wrote in a concurrence that the court recognized the effect the decision would have on Flint residents but said it was "paramount" to use proper procedure.

"... there would be little credibility to a criminal process that purports to strike a fair balance between adversaries if the guarantees underpinning that criminal process—such as the statutory right to a preliminary examination—could be done away with at the whims of the prosecution," Bernstein wrote.

Justice Elizabeth Clement recused herself from the 6-0 decision because of her prior job as chief legal counsel to Snyder.

The decision from the high court was issued in the case of former state Health and Human Services Department director Lyon, who was charged in January 2021 with nine counts of involuntary manslaughter through a Genesee County one-judge grand jury. 

Former state health department director Nick Lyon, right, talks with attorney John Bursch, left, during a recess on Aug. 20, 2018 during Lyon's preliminary examination on the first set of criminal charges he faced for his role in the Flint water crisis. Those charges were dropped by Attorney General Dana Nessel in June of 2019 before he was indicted in January 2021 by a one-judge grand jury on manslaughter and other charges connected to Flint's 2014-2015 Legionnaires' disease outbreak.

Future Flint cases in doubt

The opinion sets a precedent for the use of one-judge grand juries across the state of Michigan and calls into question how or to what extent charges can be re-authorized against the Flint defendants. 

Most of the charges Nessel's office issued against Michigan officials in January 2021 in the Flint case carry a six-year statute of limitations, which bars prosecution if charges are issued six years after the date of the alleged crime. Manslaughter carries a 10-year statute of limitations.

The Flint water switch occurred in April 2014, but some charges Nessel authorized occurred in the years after the switch as the lead-tainted water crisis and Legionnaires' outbreak unfolded and, later, as officials made statements in the investigation that would later be used against them.

When asked a week ago about how a Supreme Court reversal of the one-judge grand jury policy would affect the Flint cases, Nessel's office responded that the department "will refrain from speculating regarding a ruling by the court and its potential impact."

Attorney General Dana Nessel.

Bursch urged the attorney general's office to change course with Tuesday's opinion.

"There’s a serious statute of limitations problem now for any defendant that is charged with a misdemeanor," he said. "Even as to the defendants charged with felonies, the attorney general’s office should not recharge.”

One-judge grand jury upended

Michigan's one-judge grand jury has been used sparingly in most of state's 83 counties, with the exception of recent and targeted use by Wayne, Genesee and Kent counties for largely violent, organized crimes involving narcotics, homicide, gangs or non-fatal shootings. 

Prosecutors for Genesee, Wayne and Kent counties said they are reviewing the Supreme Court opinion to see what potential impact it will have on their current and past cases involving a one-judge grand juror.

The secretive process of one-man grand juries allows a prosecutor to bring witnesses and evidence privately to a judge, who sits as a single juror and eventually decides on whether to indict an individual.

Potential defendants and their lawyers usually are excluded from the grand jury process — eliminating their access to a traditional pretrial phase in which a prosecutor is required to present the evidence supporting the charges in a public preliminary examination before the case moves to circuit court for trial. 

The process eliminates the prosecutor's task of deciding whether to bring charges, abolishes the normal evidentiary hearings prior to trial and keeps everything under absolute secrecy until the indictment is issued. 

Several Flint defendants had argued the use of a one-judge grand juror violates the separation of powers by allowing a judge to both investigate and charge an individual.

The Flint charges affected by the Supreme Court's decision include nine manslaughter charges against Lyon; two counts of willful neglect of duty against Snyder; charges of perjury, misconduct in office, obstruction of justice and extortion against Baird; and a charge of perjury against Snyder chief of staff Jarrod Agen. 

Additional charges included nine counts of manslaughter, misconduct in office and willful neglect of duty against former state chief medical executive Dr. Eden Wells; three counts of misconduct in office against Flint emergency manager Darnell Earley; four counts of misconduct in office against emergency manager Gerald Ambrose; two counts of willful neglect of duty against former Flint Public Works Director Howard Croft; and two counts of misconduct in office and willful neglect of duty against Nancy Peeler, the state's director of maternal, infant and early childhood home visits.