Michigan prosecutors to appeal ruling that tossed Flint water crisis prosecutions
Special state prosecutors plan to appeal a judge's recent decision to toss multiple criminal cases stemming from how the state originally charged former high-ranking officials tied to the Flint water crisis.
Genesee County Circuit Judge Elizabeth Kelly inappropriately dismissed the charges because she did not correctly interpret a Michigan Supreme Court ruling on the so-called one-person grand jury system, used to secure indictments in this case, according to an unattributed statement released Tuesday by the Office of the Michigan Attorney General.
“The court proceedings up to this point have been a challenge to the process, not the merits of the case. The public deserves to hear the evidence against these defendants. Remanding these cases for preliminary exam is the next logical step in the legal process based on the ruling from the Michigan Supreme Court," the statement reads.
"The Michigan Supreme Court did not abolish the one-person grand jury, but instead more specifically defined the process, leaving a path for the prosecution to pursue charges against the defendants. The prosecution followed the law in using the one-person grand jury process from the beginning and is prepared to move forward on the valid warrants issued in these cases in compliance with the new process defined in the opinion from the Court."
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The statement did not indicate when a formal appeal would be filed. Michigan Attorney General Dana Nessel is not personally handling the prosecution. She appointed Wayne County Prosecutor Kym Worthy and Solicitor General Fadwa Hammoud to take the criminal case, while she oversaw the civil lawsuit stemming from the crisis.
Earlier this month, Kelly dismissed felony charges against former Michigan Department of Health and Human Services Director Nick Lyon, former MDHHS employee Nancy Peeler, top Gov. Rick Snyder aide Richard Baird, Snyder’s former chief of staff Jarrod Agen, former Flint emergency managers Gerald Ambrose and Darnell Early and former MDHHS medical executive Dr. Eden Wells.
A misdemeanor charge against Snyder is still pending. All of these officials have denied wrongdoing.
Chip Chamberlain, a lawyer representing Lyon, said the prosecution's decision to keep its cases alive "would not be a serious appeal."
"The (Michigan) Supreme Court’s ruling was a straightforward and logical reading of the statute governing one-person grand jury investigations. The indictment obtained against Director Lyon was without any statutory authority and, therefore, had to be dismissed, which is exactly what the circuit court did," Chamberlain said.
"Any appeal would be yet another legal move without merit and contrary to law. Recklessly charging public health officials for good faith decisions made during a crisis is not justice for anyone."
Randall Levine, a lawyer for Baird, also blasted the state's intent to appeal the order dismissing charges against his client.
"The government’s effort to dust off an archaic statute and proceed against Rich Baird in secrecy was resoundingly condemned by the high court," Levine said in a statement.
"To suggest now that an appellate court can somehow waive its magic wand and revitalize an indictment found by the Michigan Supreme Court to have been invalid borders on the absurd.”
Kelly cited a unanimous ruling from the state's high court in June that largely obliterated the one-person grand jury system. Up until that point, prosecutors could present evidence in the pursuit of an indictment to a judge as opposed to a multi-person grand jury. That one judge could determine whether there was enough evidence to proceed with criminal charges.
This system fundamentally skirts fairness and transparency that are supposed to be afforded to defendants, the court determined. Chief Justice Bridget McCormack, nominated by Democrats, likened the one-person grand jury to a secretive "star chamber" in the opinion she authored. Democratic-nominated Justice Richard Bernstein noted in a case like this with substantial attention and ramifications, proper procedure is paramount.
"The prosecution of these defendants must adhere to proper procedural requirements because of the magnitude of the harm that was done to Flint residents. Proper procedure is arguably most necessary in cases of great public significance, particularly where the charged crimes have been characterized as especially heinous and where the court proceedings are likely to be heavily scrutinized by the general public," Bernstein said in a concurring opinion.
"In such cases, adherence to proper procedure serves as a guarantee to the general public that Michigan’s courts can be trusted to produce fair and impartial rulings for all defendants, regardless of the severity of the charged crime."
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Immediately after the cases were dismissed, Worthy and Hammoud indicated they thought they could still pursue these charges, although they did not immediately commit to doing so.
The prosecutors aren't filing new charges, but rather appealing Kelly's decision. They're arguing that the Michigan Supreme Court ruling should allow for them to present evidence in the form of a preliminary examination, a process the defendants noted they were denied through the initial prosecution.
"The prosecution is ready to present their case and looks forward to seeing the people of Flint have their day in court," reads part of the unattributed statement from the Office of the Attorney General.
Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1
This article originally appeared on Detroit Free Press: Michigan prosecutors to appeal order tossing Flint Water Crisis charges
