Experts: Lyon likely bound for trial in Flint case

Leonard N. Fleming
The Detroit News

Since September, witness after witness has testified for the Flint special prosecution team as it attempts to show that state Health and Human Services Director Nick Lyon should stand trial for involuntary manslaughter and other charges in the contaminated water crisis.

Special Prosecutor Todd Flood questions a witness during the preliminary exam in this Wednesday, November 1, 2017 file photo, in front of Genesee County 67th District Court Judge David Goggins.

Now that Special Counsel Todd Flood has rested his case, Lyon’s attorneys will call witnesses as soon as Friday. Then 67th District Court Judge David Goggins will decide whether Gov. Rick Snyder’s highest-ranking official charged in the lead contamination calamity will face a jury or rest easy.

In one of the most complicated, high-profile cases in Michigan history, prosecutors empowered by Michigan Attorney General Bill Schuette called 14 witnesses to prove that Lyon failed to warn the public about the threat of Legionnaires’ disease in 2014-2015, resulting in at least two deaths. Twelve people overall died of the respiratory disease in the region during the two-year period.

Experts say the cases of Lyon and others are highly likely to go to trial because the prosecution has to meet a low bar of evidence, only proving there is probable cause an offense was committed. “The standard at the preliminary hearing is low,” said Peter Henning, a Wayne State University law professor and former federal prosecutor.

At trial, defendants are still presumed innocent and must be proven guilty beyond a reasonable doubt.

“It’s very difficult for a district court judge to not bind cases over,” said David Moran, a University of Michigan Law School professor specializing in criminal law. “Unlike a jury trial or a bench trial, where the defendant gets every benefit of the doubt at the preliminary exam, it’s basically the prosecution that gets the benefit of the doubt.”

UM’s Moran said the district judge has to take all of the testimony as true to simply determine that there was a “fair probability that a crime was committed and the defendant did it.”

Defense co-council Britt Cobb, left, and her client, Michigan Health and Human Services Director Nick Lyon, talk during an exam in Flint’s 67th District Court in this file photo from September 21, 2017.

It’s the rare case that doesn’t get bound over and that decision not to bind over is held on appeal, he said, because “that really only occurs where there’s a gaping hole in the prosecution’s case and a complete failure to prove an important element of the case.”

“So for involuntary manslaughter, they have to show someone died,” Moran said. “They have to show that the defendant was negligent, grossly negligent or reckless in his or her conduct and that there’s a causal link between that gross negligence or recklessness and the deaths.”

The attorney general’s office has alleged that Lyon’s failure to act resulted in the death of at least two people, 85-year-old Robert Skidmore of Genesee Township and 83-year-old John Snyder of Flint.

Skidmore’s death certificate shows that he died Dec. 13, 2015, from “end stage congestive heart failure” and listed diabetes as a contributing cause.

But Flood had a Detroit-area and nationally known cardiologist Joel Kahn testify that Skidmore and Snyder died as a result of Legionnaires’ disease based on records he reviewed.

Snyder’s daugher, Mary Ann Tribble, also testified in the Lyon case that her father was in good health before getting Legionnaires’, staying active by running and skiing.

Lyon’s lead attorney Chip Chamberlain fought back against those allegations by arguing that both elderly men had extensive medical problems that included heart problems and other ailments. Chamberlain declined to comment about the case.

Other testimony came from Wayne State University professors seeking to study the Legionella outbreak that Lyon didn’t seem concerned with saving lives amid the crisis in 2015. The health director said at a meeting that “I can’t save everyone” in Flint and that “he did not seem to be interested in, my opinion, protecting public health,” testified Shawn McElmurry, an associate professor of environmental engineering at Wayne State.

Flood also brought in Michigan State Police Chief Col. Kriste Etue to testify that she never heard Lyon talk about Legionnaires’ disease when the governor was considering declaring a state of emergency in Flint.

And a McLaren Flint hospital administrator accused Lyon of being untruthful when his office put out a news release in February 2017 that accused the hospital of not addressing a Legionella bacteria outbreak.

Lyon’s defense team aggressively tried to show that the state health department wasn’t alone in its reluctance to declare a public health emergency about the Legionnaires’ outbreak.

When Genesee County health expert Jim Henry recounted his clashes with the state health department, defense attorneys produced an email by Henry indicating the county also didn’t think it was “reasonable” to declare a Legionnaires’ outbreak to the public. Henry testified under cross-examination questioning that “I testified that we made mistakes and that the public should have been notified,.”

Others facing involuntary manslaughter charges include state Medical Executive Eden Wells, who is nearing the end of her preliminary exam before 67th District Court Judge William Crawford II. Former city Emergency Manager Darnell Earley and Flint Public Works Director Howard Croft are scheduled to be in court to start their preliminary hearings in early May. Former Emergency Manager Gerald Ambrose decided to head straight to trial.

Four Michigan Department of Environmental Quality regulators are in the beginning stages of their preliminary court proceedings. Two of them -- former Michigan Department of Environmental Quality Drinking Water Chief Liane Shekter-Smith and suspended state Water Supervisor Stephen Busch-- also face involuntary manslaughter charges.

Henning said even with the advantages the special prosecution have in the preliminary exam proceedings, there are “substantial hurdles” such as proving “causation” between Lyon’s actions or inaction and the respiratory disease deaths.

“And I expect that the defense is going to focus on that heavily in this second phase of the preliminary examination, trying to poke holes in the attorney general’s proof that the failure to warn led to the deaths,” Henning said. “I think we’re going to see more experts coming in for the defense trying to show that failure to warn didn’t cause any harm or can’t be proven to result in death.”

In the end, the judge’s job in a preliminary hearing is to pass the evidence along for trial unless there is a gaping hole in the case, UM’s Moran said.

“The district judge isn’t supposed to say, ‘I don’t believe that witness, therefore, I’m going to find the elements aren’t satisfied.’ That’s the job of the jury,” Moran said. “It’s the jury’s job (at an eventual trial) to ultimately decide whether to believe the witnesses.”


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