Judge delays ruling on whether Michigan health chief will go to trial

Nick Lyon, center, talks with his attorney John Bursch, left, during the hearing Wednesday.

Flint — A capacity crowd showed up, the judge listened as opposing attorneys bickered and then he punted.

Before a stunned courtroom expecting a decision, 67th District Court Judge David Goggins said he needs until Aug. 20 to decide whether Michigan health and welfare chief Nick Lyon will stand trial for felony charges including involuntary manslaughter related to the Flint Water Crisis.

The judge's change of heart — he had promised to announce the ruling from the bench at Wednesday's hearing — in the most anticipated Flint water prosecution case means he will make his decision 13 days after the Aug. 7 gubernatorial primary.

Lt. Gov. Brian Calley had claimed that a potential bind-over ruling Wednesday was designed to help Attorney General Bill Schuette, who made national headlines by bringing the Flint water prosecutions. Calley and Schuette are the two front runners for the Republican gubernatorial nomination. Schuette's office has countered that the allegation is baseless.

Defendant Nick Lyon listens during testimony Wednesday.

The delay suggests Goggins is wrestling with the case and his decision, said Peter Henning, a Wayne State University professor and former federal prosecutor.

To send a case to trial for a jury to consider, the judge must decide whether there’s probable cause that a "reasonable person, based on the evidence, could find the defendant guilty," Henning said. “That’s not a very high standard, but clearly the judge has found this to be a close case.”

But Goggins told the special prosecutors and defense attorneys before the hearing began that he likely would rule at a later date because of the lengthy closing briefs he received last week, an increased work load filling in for other judges and the desire to get the decision right.

Lyon attorney John Bursch said he does not think Goggins delayed the case to get past the Aug. 7 primary.

“All we want is the right opinion, and however much time the judge needs for that, we’re willing to wait,” Bursch said.

Prosecutors “don’t have a leg to stand on,” he argued during a brief talk with reporters following the hearing, suggesting Special Prosecutor Todd Flood’s arguments boiled down to “mudslinging.”

Flood, who sparred with Bursch during the hearing in their final closing remarks before the judge, told The Detroit News, "I try my case in the courtroom and not the media, and what was presented as the evidence speaks for itself."

Lyon is charged with two counts of involuntary manslaughter and misconduct in office connected to the Flint region's 2014-2015 Legionnaires' disease outbreak that killed 12 people and sickened another 79 people. Flood recently added a misdemeanor charge of "willful neglect" to protect the health of Genesee County residents.

The judge's delay came despite a jam-packed courtroom with media, state officials and onlookers including members of Flint Lives Matter. An overflow of people spilled out into the hallway. It the first case related to the Flint water prosecutions brought by Schuette and Flood.

The delayed decision is “bull crap,” said Arthur Woodson, a Flint activist who has attended nearly every hearing for Lyon and other defendants.

“This is the first (Flint water crisis) trial that could be bonded over to a jury,” Woodson said. “If we don’t come out and show we want justice, then they just going to brush it under the rug.”

Among those who squeezed into the court benches were Gov. Rick Snyder's top aide Rich Baird, who oversees the Flint recovery effort and walked up and praised the defense attorneys after the hearing; former Snyder community health director Jim Haveman, prominent Lansing lawyer Richard McLellan and former Republican state Senate Appropriations Chairman Roger Kahn of Saginaw.

Judge David J. Goggins conducts the hearing of Nick Lyon Wednesday.

Flood had a giant undercover security man shadowing his every move.

The preliminary exam has involved 10 months of testimony — starting last September with prosecution witnesses and then this spring with defense witnesses.

At one point in this hearing, Bursch got visibly angry at Flood, as they both called each other deceptive and criticized the other for supposedly inaccurate reciting of case law and facts in the case.  

Prosecutors contended Lyon should have warned the public of the Flint region's Legionnaires' disease outbreak and could have saved lives. He was charged with the deaths of elderly Flint area men Richard Skidmore and John Snyder, misconduct in office and a misdemeanor charge of willful neglect of the public health in Genesee County. 

Snyder didn't publicly warn of the Flint area Legionnaires' outbreak until a hastily arranged Detroit press conference in mid-January 2016.

The defense lawyers countered that Lyon runs a department of 14,000 employees and relied on the expertise of department employees, none of whom recommended issuing a public warning. They also argued the prosecution failed to make any connection between Lyon and the men's deaths, arguing they died from long-term diseases but not Legionnaires'.

Goggins asked the attorneys to make additional closing arguments Wednesday after they had done so about two weeks ago. Flood and Bursch traded barbs during several heated exchanges, including the closing moments of the hearing when Bursch compared Flood’s evidentiary arguments to a “third-grade debate.”
The former state solicitor general later apologized for losing his temper, approaching Flood during a recess to tell him “that’s not the way I typically operate.”

Flood repeatedly suggested Lyon did not warn the public about the Legionnaires’ outbreak or its possible connections to drinking water because Flint, run by a state emergency manager at the time, saved money when it switched off Detroit water in April 2014.

“I don’t have to prove motive, your honor, but you can see it all throughout,” Flood told Goggins. “It’s not latent. It’s right there. This is politics at its worst.”

Lyon “had the chance to save lives” when he first learned about a Legionnaires' spike in January 2015 but did not do so, he argued.

“He had one motive and one motive only, and that was to push this under the table.”

Bursch said Lyon received only limited information in January 2015.

As director of a massive state government department, Lyon relied on experts to advise him, but there is no evidence showing Lyon was told he should issue a public health warning or that an initial Legionnaire’s spike could return, Bursch told the judge.

“There is evidence the situation was confounding, confusing and complex,” he said.

Because Skidmore and Snyder went to McLaren hospital in Flint, where medical officials had been warned about Legionnaires' disease, a public announcement wouldn’t have prevented their deaths, Bursch argued.

“That is the definition of a lack of causation,” he said. “If you had done something, nothing would have changed.”

Bursch also showed a photo of Lyon with his wife and kids that only Goggins could see, arguing about the impact on the family, but the judge declined to consider it.

Former state-appointed Flint Emergency Manager Gerald Ambrose already has skipped his preliminary exam and will go straight to trial.

Michigan Chief Medical Executive Eden Wells and four current and former Michigan Department of Environmental Quality regulators are still going through their preliminary exams after being charged criminally.


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