By Paul Rozycki
What if the next winner of the Super Bowl was determined, not by players scoring touchdowns or field goals, but one team winning because of a referee’s ruling over someone being offside or taking too much time in the huddle? There would be an outcry that the game was decided by the officials and not the players. The officials may have been following the rulebook, but the results would be very unsatisfactory to the fans in the stands. Yet that seems to be what happened with the criminal lawsuits tied to the Flint water crisis.
After nearly eight years of litigation and $60 million in legal costs, the Michigan Supreme Court has upheld the dismissal of criminal charges against nine defendants in the Flint water crisis that began nearly a decade ago. Because the prosecution used the one-man grand jury, the indictments were considered invalid and all charges were dismissed, including those initially filed against former Gov. Rick Snyder.
If the cases had actually gone to trial it’s hard to say what might have happened. Perhaps there might have been some convictions. Perhaps there might have been some acquittals. Perhaps there might have been some plea bargains. Each case is somewhat different and the facts about who did what and who knew what are complex.
Some of the defendants might have found protection under the umbrella of governmental immunity that gives officials some protection in pursuing their legal duties. Others may have been found guilty of exceeding the bounds of their governmental powers.
But whatever the outcome, it would have been determined by the major players in the case, the prosecutors, the defendants, the judge and jury. The results certainly would not have satisfied everyone, but there would have been a feeling that at least the process was played out with some sense of fairness.
The history of the prosecutions
The history of the criminal prosecutions of those involved with the Flint water crisis is long and complex. The initial prosecutions began about seven years ago, when Attorney General Bill Schuette, initially filed charges in 2016. As the process began a few officials took plea deals and others prepared to defend themselves in court if necessary.
However in 2019, newly elected Attorney General Dana Nessel said the initial charges were flawed, dismissed them and started over with a new list of criminal charges. However, because of the statute of limitations, they needed to act quickly. The limits are six years for most felonies, 10 years for a few others. The one-man grand jury is considered a quicker route to filing charges.
The one-man grand jury
In charging the nine defendants, the one-man grand jury was used to gather evidence and issue the indictments. Genesee County Circuit Court Judge David Newblatt acted as the one-man grand jury. While a one-man grand jury is uncommon in Michigan, it’s not unheard of. It allows a judge to hear evidence in secret to find probable cause for future charges. It can be a quick process and allows for witness protection. With the one-man grand jury the defendants do not have a preliminary examination where they can cross-examine witnesses before a trial takes place. The Michigan Supreme Court ruling said that was a violation of a defendant’s right to due process.
In the 2022 unanimous court opinion led by Chief Justice Bridget McCormack she wrote “(State laws) authorize a judge to investigate, subpoena witnesses, and issue arrest warrants. But they do not authorize the judge to issue indictments. And if a criminal process begins with a one-man grand jury, the accused is entitled to a preliminary examination before being brought to trial.”
Deputy Attorney General Fadwa Hammoud (seated center with orange mic) and Kym Worthy, Wayne County Prosecutor assigned as lead prosecution on Flint Water Crisis Settlemement (seated left speaking in mic) and a host of lawyers and State officials speak to beleaguered Flint residents in 2019. (Photo by Tom Travis)
Within the last year several Genesee County Circuit Court Judges, F. Kay Behm and Elizabeth Kelly, supported that decision and dismissed charges against the nine individuals. The recent Michigan Supreme Court decision reinforced those rulings by declining to hear an appeal. While there may be a slight chance for further appeals, any chance for further prosecutions is very unlikely. The Flint Water Prosecution Team led by Deputy Attorney General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy, was quoted as saying, “Today, our Supreme Court has put the final nail in the coffin of the Flint Water Prosecutions.”
The reactions
As might be expected, those defending former Gov. Rick Snyder and the other eight defendants praised the decision as a fair limit on governmental power. An attorney for Snyder said that the former governor is “encouraged by what appears to be a declaration by AG Nessel of the end of this political persecution of public officials.”
Some blamed Attorney General Nessel and the Flint Water Defense Team for handling the case badly. Some feel that when Nessel dismissed the earlier set of charges and began the process anew, that the statute of limitations forced them to move quickly to a one-man grand jury.
Michigan Attorney General Dana Nessel (Photo by Tom Travis)
Those who opposed the decision said that the one-man grand jury had been used for many years successfully and that this ruling was a slap in the face to Flint residents who suffered during the water crisis. In the Flint Journal Mayor Sheldon Neeley was quoted saying “The one-man grand jury has been upheld against plaintiffs from under-resourced backgrounds, while Snyder been allowed to evade justice based on a technicality thanks to a well-resourced, taxpayer legal defense. The standard of justice has not been balanced.”
In the end many Flint residents were disappointed but not shocked by the Supreme Court’s ruling.
What it means
Many can seriously debate the role of the one-man grand jury and the powers it should or should not have, and it is a reasonable discussion. But the meaning of the decision goes well beyond the immediate consequences for the former governor and the other defendants. Even if they were all convicted it wouldn’t undo the harm done to the citizens of Flint. Civil lawsuits and other programs have made an attempt to address some of those issues.
The real damage is to the overall trust in government that has been battered from so many sides in recent decades. From the Flint City Council and the Flint Board of Education, to the U.S. Congress, the U.S. Supreme Court, and the White House, trust in government has been falling for decades. That lack of trust makes it possible for the Donald Trumps of the world to find a following as they denounce the traditions and institutions of government with the wildest conspiracy theories. That lack of trust is one reason why we often have a 10 percent or less voter turnout for local elections.
The real problem is that rebuilding trust is a much bigger job than replacing water pipes, slow as that has been in Flint. While not quite complete, most of the water pipes in the city have been replaced. It will take much longer to replace the trust that was destroyed by the all the aspects of the water crisis. The current court ruling is just one more obstacle in that process.
Beyond the City of Flint, restoring trust in the national and state government is even more complex than simply putting some new pipes in the ground or applying rules in a football game.
But it’s even more important than putting new pipes in the ground or who wins the next Super Bowl. Restoring that trust is critical for the survival of a democratic government.
EVM Political Commentator Paul Rozycki can be reached at paul.rozycki@mcc.edu. Rozycki also is president of the EVM board.
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