Criminal charges dropped against Lyon, 7 others in Flint water scandal
Michigan Solicitor General Fadwa Hammoud on Thursday dropped all pending criminal cases over the Flint water contamination crisis, a stunning move as she reboots a probe that began more than three years ago under a previous regime.
While they could be charged again in the future, former Michigan Department of Health and Human Services Director Nick Lyon and former Chief Medical Executive Eden Wells are no longer set to stand trial on involuntary manslaughter and other charges. Charges also were dropped against six other state and Flint officials.
The decision, announced by Attorney General Dana Nessel’s office, will give the department time “to conduct a full and complete investigation.” The dismissals were greeted with disappointment and dismay by many Flint lawmakers and residents as the state has spent more than $30.6 million and growing on a nearly three-and-a-half-year-old investigation.
The moves are a rebuke of the probe and 15 prosecutions started by Republican former Attorney General Bill Schuette's office under Special Prosecutor Todd Flood and former FBI agent Andy Arena.
Arena defended the special prosecutor team's record and said Nessel's office never asked him about the cases before he was dropped from the investigation. He said he would gladly debate the team's handling of the Flint cases.
"This is not my first rodeo,” said Arena, the former special agent in charge of the FBI's Detroit office. “I’ve been around and have a reputation, and I’ve investigated and overseen some of the most complex cases in the history of the country, quite frankly.”
“This was about justice. And I will say this: Bill Schuette never told us to do or not to do anything in that case. Never," he said.
Now Hammoud and Wayne County Prosecutor Kym Worthy, who is assisting in the review of the Flint prosecutions, "own" the Flint investigation "lock, stock and barrel," Arena said.
Schuette noted he assembled a Flint special prosecution team that also included Genesee County Prosecutor David Leyton and two state judges with more than 200 years of legal experience. He implied that Nessel's team is dropping the charges because it was unprepared to go to trial.
The special prosecutor's "cases against Nick Lyon and Eden Wells were successfully bound over for trial, and the Office of Special Counsel was fully prepared to try both cases," Schuette said. "We had an experienced, aggressive and hard-driving team."
Flood said the focus has been justice for the people of Flint.
"I stand behind our work that included interviewing hundreds of witnesses and assessing millions of pages of evidence and technical data," Flood said. "I am confident our efforts on behalf of the thousands of victims met the highest professional and ethical standards."
Hammoud said she and Worthy have discovered new information and new persons of interest in the Flint water investigation. The prosecution team also plans to examine additional criminal liability related to all victims of a 2014-15 Legionnaires' disease outbreak in the Flint region that killed at least 12 and sickened another 79 individuals.
Hammoud and Worthy said they are scheduled to address Flint residents about the case dismissals in a June 28 town hall.
Prosecutors had “immediate and grave concerns” regarding the investigation when Nessel took over the probe in January and assigned Hammoud to it that same month. “All available evidence was not pursued” in the past, Hammoud and Worthy said in a statement.
Nessel backs dismissals
Nessel, who is dealing with Flint civil litigation, said she supported the dismissal decision "if this step is necessary for them to do a comprehensive and complete investigation."
“I want to remind the people of Flint that justice delayed is not always justice denied and a fearless and dedicated team of career prosecutors and investigators are hard at work to ensure those who harmed you are held accountable," the Plymouth Democrat said.
Flint residents demanding accountability for the water contamination crisis celebrated in August when 67th District Judge David Goggins ordered Lyon to stand trial and suggested his behavior was “corrupt” for probable cause purposes.
At the time, Flood left the courtroom receiving handshakes and back-slaps from his team and local residents.
Hammoud and Worthy said they had considered dismissing the pending cases “from the outset” but tried to salvage the investigation because of the “massive” amount already spent on the effort and the need for speedy relief for Flint residents.
“Nonetheless, we cannot provide the citizens of Flint the investigation they rightly deserve by continuing to build on a flawed foundation,” Hammoud and Worthy said. “Dismissing these cases allows us to move forward according to the non-negotiable requirements of a thorough, methodical and ethical investigation.”
The prosecution team made every effort to obtain and review all evidence through search warrants and this week “completed the transfer into our possession of millions of documents and hundreds of new electronic devices," they said. The review has led to new information, new persons of interest and "an exploration of additional criminal charges for all Legionnaires' deaths,” Hammoud and Worthy said.
Chip Chamberlain, one of Lyon’s attorneys in the criminal case, said he learned of the news Thursday afternoon from the Genesee County judge overseeing the case, not the Attorney General’s office. His client was relieved, he said.
“Well, we’re not shocked by the outcome because we thought that would be the outcome through the courts,” Chamberlain said. “How it happened is a bit of a surprise. We were not told in advance that this was her decision, and I learned of it from the judge’s chambers.”
Lyon "feels fantastic and grateful and vindicated," Chamberlain said.
Chamberlain said he’s not too worried if prosecutors refile the charges.
"Yes, they have that technical right but they’re not going to exercise it," he said. "Because there wasn’t the evidence to support the cases to begin with.”
Wells' lawyers, Steven Tramontin and Jerold Lax, said they appreciated the dismissal decision and did not anticipate "further prosecution relative to her."
"The solicitor general is now free to pursue her investigation while Dr. Wells is free to continue her distinguished career in public health," the lawyers said.
Flint’s former Public Works Director Howard Croft is "elated” at the dismissal of the charges, said his attorney, Jamie White. “We’ve believed since Day 1 that Mr. Croft would be exonerated of this one way or the other,” White said.
Flint justice still 'delayed'
Senate Minority Leader Jim Ananich, D-Flint, said he will continue to fight for his city and hopes Flint residents will one day see justice.
“Let me be clear: I want to see people behind bars,” Ananich said in a statement. “Words cannot express how disappointed I am that justice continues to be delayed and denied to the people of my city. Months of investigation have turned into years, and the only thing to show for it is a bunch of lawyers who have gotten rich off the taxpayers’ dime.”
The dismissals do not preclude the Attorney General's office from refiling charges after additional review. While the dismissals may “not bring immediate remedy or relief” to Flint residents, they will allow for a “vigorous pursuit of justice,” Hammoud and Worthy said.
That pursuit “demands an uncompromising investigation of the Flint Water Crisis and professional prosecution of all those criminally culpable. Accordingly, our team will move forward unrestrained by political motivations, prior tactics or opportunities for financial gain.”
The Attorney General office’s uncertainty regarding outstanding evidence in the case could present serious challenges down the road if not addressed immediately, said Peter Henning, a Wayne State University law professor and former federal prosecutor.
Prosecutors have an absolute duty to disclose evidence that could weigh in a defendant's favor, regardless of whether they were aware the evidence was in their possession, Henning said.
“That really is what haunts prosecutors: If there’s evidence out there that hasn’t been seen, then they don’t know if it’s exculpatory or not,” he said. “There’s no good-faith defense. You have to turn it over.”
While there may be some pressure for action due to statutes of limitations on certain charges, a comprehensive understanding of the evidence available is more important, Henning said.
“If charges are dismissed, usually prosecutors have six months or so to refile charges and it won’t affect the statute of limitations,” he said.
Lyon and Wells were preparing to stand trial for allegedly failing to timely inform the public about an outbreak of Legionnaires’ disease when Flint was using improperly treated water from the Flint River in 2014 and 2015. The outbreak occurred at the same time that the city’s water system was contaminated with lead.
Lyon was the highest-ranking state official to be charged in the investigation.
Seven original defendants reached plea deals with Flood that avoided potential jail or prison time and mostly resulted in charges being dismissed.
Hammoud dismissed Flood from the investigation in late April after finding a “trove of documents” related to the Flint water crisis in the basement of a state building. The defendants' attorneys said they didn't think anything significant or new would be found in the documents.
"We conducted multiple court hearings and preliminary exams, placed hundreds of exhibits into evidence and successfully bound defendants over for trial," Flood said in late April. "This complex case of official wrongdoing 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."
Staff Writer Jonathan Oosting contributed.
What Flint charges were dropped
A summary of the criminal and misdemeanor charges dropped against eight current and former state and Flint officials in the Flint water investigation.
Nick Lyon: Former director of the Michigan Department of Health and Human Services was charged by Schuette in June 2017. Had faced 15-year felony involuntary manslaughter charge and five-year misconduct in office charge on allegations he failed to warn the public in a timely manner about a deadly 2014-15 Legionnaires’ disease outbreak.
Eden Wells: Then-chief medical executive for the state Department of Health and Human Services was first charged by Schuette in June 2017. Initially faced charges of lying to a police officer and obstructing justice in an alleged attempt to stop the Flint investigation. Was later hit with a 15-year felony involuntary manslaughter charge related to the deadly Legionnaires’ outbreak.
Darnell Earley: Former Flint finance director and state-appointed emergency manager was charged in December 2016 by Schuette. Initially faced 20-year felonies for involuntary manslaughter, alleged false pretenses and conspiracy to commit false pretenses over bonding for a new regional water pipeline project that led to the Flint River switch, along with five-year felony misconduct and neglect of duty misdemeanor charges.
Gerald Ambrose: Former state-appointed emergency manager charged in December 2016 by former Attorney General Bill Schuette. Initially faced felonies for alleged false pretenses and conspiracy to commit false pretenses over bonding for a new regional water pipeline project that led to the Flint River switch.
Patrick Cook: Community drinking water specialist for the Michigan Department of Environmental Quality charged by Schuette in July 2016 after signing 2014 permit approving use of Flint Water Treatment Plant. Accused of failing to take corrective action and misleading federal Environmental Protection Agency about corrosion controls. Initially faced five-year felony misconduct and conspiracy charges and a neglect of duty misdemeanor.
Howard Croft: Former Flint Public Works director charged by Schuette in December 2016. Initially faced 20-year felonies for involuntary manslaughter, false pretenses and conspiracy to commit false pretenses over bonding for a new regional water pipeline project that led to the Flint River switch.
Nancy Peeler: Then-director of Maternal, Infant, and Early Childhood Home Visiting for the state health department was charged by Schuette in June 2017. Allegedly buried a 2015 internal report on blood lead level data in Flint kids. Initially faced five-year felony misconduct and conspiracy charges, along with misdemeanor neglect of duty.
Robert Scott: Data manager for the state health department’s Healthy Home and Lead Prevention program, allegedly worked with Peeler to create a second report falsely indicating no rise in Flint children's blood lead levels. Initially faced five-year felony misconduct and conspiracy charges, along with misdemeanor neglect of duty.
Source: Michigan Attorney General's Office