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Nick Lyon may learn in a Flint courtroom Wednesday whether he is going to trial on three felony charges including involuntary manslaughter related to the Flint water crisis or will avoid another day in court.

 

Gov. Rick Snyder's health and human services director and his legal team will hear 67th District Court Judge David Goggins' decision from the bench whether Lyon will be the highest-ranked state official to face trial. 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 by Attorney General Bill Schuette.

The highly anticipated ruling on Lyon is set to come after 10 months of testimony — first starting last September with prosecution witnesses and then defense witnesses this spring. There have been at times fierce courtroom battles between Special Prosecutor Todd Flood and Lyon's attorneys.

Prosecutors contend Lyon should have warned the public of the Flint region's Legionnaires' disease outbreak and could have saved lives. He is 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. 

The defense has 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 argue the prosecution has failed to make any connection between Lyon and the men's deaths, arguing they died from long-term diseases but not Legionnaires'.

Both sides presented experts who differed on the causes of death for the two men.

The Flint water crisis produced a national outrage in 2016 after residents in the city of 97,000 were exposed to unsafe, elevated levels of lead in their drinking water after the city switched in April 2014 to the Flint River as its source. It also has seeped into the Republican governor's race as Lt. Gov. Brian Calley has accused Schuette of overzealous overreach, which the attorney general has denied.

"I think what's paramount in a judge's mind, is there enough evidence?," said Peter Henning, a former federal prosecutor and now law professor at Wayne State University. "This is already a very high-profile case. ... The judge is going to tune out the politics because it doesn't play any role in the basic decision as to whether there's enough evidence to let the case forward."

Goggins could bind over Lyon for trial on all of the charges, proceed to trial with a reduced number of charges or dismiss all of felony and misdemeanor complaints.

"There's a devastating impact on a client when they're bound over for trial on charges that lack any legal merit and which are bereft of any evidentiary support, and that's what we have here," said John Bursch, one of Lyon's attorneys, who made the closing arguments two weeks ago.

"This case really isn't close. There's nothing in any of the evidence that came out of the preliminary exam that showed that Director Lyon 'screwed up.'"

Flood declined comment.

Schuette spokeswoman Andrea Bitely praised Flood and the prosecution team's work and said they the case will result in a trial for Lyon. When asked if Schuette would attend the hearing, she said it is not on his schedule.

"John Bursch can say whatever he likes, it doesn't make it true. We believe the judge has heard enough evidence to bind Mr. Lyon over, and that's what will happen tomorrow."

Henning said he expects that the state would appeal if Goggins decided to dismiss the key felony charges.

"There is no double jeopardy because jeopardy doesn't attach until a jury is sworn in," he said. "The state can certainly appeal that all the way to the Supreme Court.

The prosecutors have the advantage getting Lyon's charges bound over for trial they have to meet a "probable cause standard, which is translated as, could a reasonable juror find that there's enough evidence to convict a defendant?" At trial, the prosecution has to prove guilt beyond a reasonable doubt.

But Henning cautioned that cases like Flint where defendants are accused of a "failure to act" can be tricky because "showing causation is always difficult."

If the case is bound over, Genesee County Circuit Court Judge Judith Fullerton is scheduled to take the case. But court officials said complications could arise if Lyon appeals Goggins' ruling and the defense asks for more time to prepare.

Fullerton, court officials said, is scheduled to retire at the end of the year due to age restrictions for judges.

But Calley lambasted Schuette, calling the preliminary hearings "political show trials" that have "wasted tens of millions of dollars of the taxpayer resources."

In an interview, he accused Schuette of delaying the preliminary exam proceedings "so they can get a preliminary exam decision right before the primary" on Aug. 7. The case has been delayed when both the prosecution and defense teams have asked for more time for witnesses. 

Lyon is under pressure but he's hopeful for a good result, Bursch said.

"Director Lyon has impressed me every single day of this process with how positive an attitude he's had about it," he said. "He knows that the legal team is doing the best it can and he knows he's innocent of any of these charges and that he did the best he could and certainly did not cause anybody's death."

Flint Councilman Eric Mays, who has attended some of the Lyon hearings and has criticized the Snyder administration's handling of the water crisis, said he expects all or most of the charges to go forward.

"It's a big day. Flint will be watching," Mays said. "The state will be watching."

lfleming@detroitnews.com

(313) 222-2620

Twitter:@leonardnfleming

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