Attorney general adds Worthy to Flint prosecution team

Wayne County Prosecutor Kym Worthy

Lansing — Michigan Attorney General Dana Nessel and her solicitor general said Thursday that Wayne County Prosecutor Kym Worthy will help beef up the Flint water prosecution team with more hires and hinted more people could be charged depending on the evidence. 

The moves by Nessel and Solicitor General Fadwa Hammoud effectively cut the power of Special Prosecutor Todd Flood, first appointed three years ago by former Attorney General Bill Schuette, and make him an assistant attorney general. He will work alongside other attorneys and investigators yet to be hired to finish up current cases and possibly bring new charges. 

Hammoud sidestepped questions about whether former Gov. Rick Snyder will be interviewed about the Flint crisis, which resulted in city residents drinking lead-contaminated water and is blamed for causing a 2014-15 Legionnaires' outbreak that killed 12 individuals and sickened at least another 79 people. Snyder's administration appointed the emergency managers who approved Flint's water source switch.

"Anybody who we as a team believe is criminally responsible in this case or should be interviewed, will be interviewed with no specific names. No one is above the law," Hammoud said at a news conference that also dealt with the investigations into Catholic clergy abuse and Michigan State University's sexual assault scandal with Larry Nassar. "If more charges need to be brought, then we will bring them."

Nessel added that she will be solely focused on dealing with the Flint civil lawsuits while Hammoud will handle the criminal side.

Both Nessel and Hammoud took issue with Schuette's hiring of Flood's private law firm to handle the prosecution, saying that oversight should have been with the "people's law firm." A new contract for Flood is being drawn up but there's been no decision about how much he will be paid, officials said.

"I felt it was really important for us to have people working on these cases that were actually accountable to this office and accountable directly to the people of this state," Nessel said.

About the supposed lack of oversight by Schuette, Hammoud added, "This is the people's law firm, and the people's law firm should have stepped up to the plate. That is my belief."

Schuette's oversight

But the attorney general office’s ethics officer concluded most of the people in the department had a conflict of interest because "our office had already begun defending the state against the claims brought in the Flint water crisis," said Rusty Hills, a former key aide to Schuette. "As a result, we went outside the office to prosecute the criminal cases.

"But we maintained oversight not only with the attorney general and myself but also with special assistant attorney generals Judge David Hoort and Judge Bill Whitbeck." 

But Schuette is pleased that the three investigations are proceeding "because it is important to the victims to see these through," Hills said.

Schuette unsuccessfully attempted to interview Snyder about two years ago. The Republican governor didn't testify under oath while in office, even though he was willing, because Flood failed to produce an investigative subpoena that had been promised, Snyder counsel Brian Lennon said in 2017.

"The governor testified under oath before Congress and has always been willing to talk with the Office of Special Counsel under oath like every other witness so there is no appearance of special treatment," Lennon said in a statement at the time.

In June 2017, Schuette said at a news conference there was no probable cause to file Flint-related criminal charges against Snyder “at this time.”

Schuette's office hinted that the Snyder legal team's insistence on an investigative subpoena in exchange for an interview wasn't legally necessary. 

'No oversight whatsoever'

Flood has struck plea agreements with six defendants and got former Health and Human Services Director Nick Lyon and former Chief Medical Executive Eden Wells bound over for trial on involuntary manslaughter and other criminal charges related to the Legionnaires' disease outbreak.

The most recent plea deals involved three Michigan Department of Environmental Quality officials who helped oversee the Flint water switch and agreed to cooperate in the investigation. Fired DEQ Office of Drinking Water and Municipal Assistance chief Liane Shekter-Smith and water regulators Michael Prysby and Stephen Busch will have charges reduced and dismissed in exchange for possible testimony.

Water treatment engineer Patrick Cook is the only remaining defendant in a preliminary exam that involved the four DEQ bureaucrats. Cook is accused of misconduct in office, conspiracy to engage in misconduct in office and willful neglect of duty for allegedly manipulating a Lead and Copper Rule report on the levels of lead in Flint’s water.

The four DEQ officials worked for former state DEQ Director Dan Wyant, who resigned in December 2015 after a Snyder-appointed task force found the state environmental department “primarily responsible for failing to ensure safe drinking water in Flint.” Two months earlier, Wyant admitted the DEQ erred in its application of the federal rules designed to ensure safe drinking water for residents.

Former Flint Emergency Manager Gerald Ambrose skipped a preliminary exam and went straight to trial proceedings, which haven't started. A data manager for a state lead poisoning prevention program also remains involved in a preliminary exam. 

In the wake of the December 2018 and January plea agreements, Nessel decided to ask Worthy to review the Flint prosecution cases, hired Hammoud from the Wayne County Prosecutor's Office and put her in charge of the Flint probe.

Hammoud declined to comment on whether she agreed with Flood's plea deals, but suggested some cases, such as those brought against former Flint Emergency Manager Darnell Earley, need to be adjourned. Earley is accused of involuntary manslaughter and other criminal charges.

And she shot back at suggestions that this was a restart of the investigation. "We're not throwing everything out and starting from zero," she said.

No one has gone to prison more than three years after the state declared a January 2016 emergency in Flint over the lead-contaminated drinking water.

Regarding Worthy's involvement, Hammoud said of her former boss, "I trust Prosecutor Worthy." Nessel also used to work for Worthy.

The moves are being made because Nessel said she found there was "practically no oversight whatsoever" of the Flint probe by Schuette's office. Only Schuette, Hills and investigator Jeff Seipenko were involved, she said.

"This case is about the people of Flint," Hammoud said, adding that "I am under no illusion about the amount of work that we have ahead of us."

Solicitor General Fadwa Hammoud talks about the Flint Water crisis and her opportunity to work with Wayne County Prosecutor Kym L. Worthy.

Civil suit changes

For her part, Nessel said she has decided to be involved in the 79 Flint-related civil lawsuits.

The Whitmer administration and Nessel have indicated that they want to settle the civil litigation stemming from the lead contamination of Flint's drinking water that resulted after the city switched its water source to the Flint River in April 2014. 

Nessel said she felt like she needed state officials to be responsible to the taxpayers.

Earlier this month, Nessel replaced Flint chief investigator and former FBI agent Andy Arena with Seipenko, a former Dearborn Heights police investigator who was a three-year member of Schuette's investigative team.

Millions in state tax dollars for the legal defenses of Flint water crisis defendants are in danger of being cut when the aid runs out this year after Whitmer pledged to ensure taxpayers "are getting their money's worth."

The tab is $30.6 million and growing for the prosecution, civil litigation and defense legal expenses.

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