POLITICS

Judge tosses charges against 7 state officials in Flint water crisis

Beth LeBlanc
The Detroit News

Genesee County Circuit Judge Elizabeth Kelly on Tuesday dismissed felony charges against seven state officials charged in relation to the Flint water crisis.

The dismissal eliminates charges based on a Michigan Supreme Court ruling in June that the one-man grand jury used to charge the defendants was unconstitutional.

As a result of that decision, the indictments issued against six defendants are "invalid" and the charging process "void," Kelly wrote.

The order applies to charges against former state health director Nick Lyon; former state medical executive Eden Wells; former Gov. Rick Snyder's advisor Richard Baird and communications director Jarrod Agen; former Flint emergency managers Gerald Ambrose and Darnell Earley and state health department employee Nancy Peeler.

Nick Lyon, right, leaves the Genesee County Sheriff's Office March 25, 2022 with his attorney, Chip Chamberlain.

The circuit court order does not apply to Snyder, whose charges are misdemeanors and handled at the district court level. A one-man grand jury indicted Snyder on two misdemeanor counts of willful neglect of duty.

"If the people seek future charges against defendants, they must follow one of the proper charging procedures outlined by the Supreme Court," Kelly wrote.

The judge did not weigh in on a request for future charges to be barred against the defendants based on the argument that the statute of limitations ran out for those charges to be considered.

Any such determination, Kelly wrote, "is premature because defendants' request is anticipating future charges, which may or may not be brought by the people."

"It is undisputed that the scope of this court's duty on remand is 'to comply strictly with the mandate of the appellate court according to its true intent and meaning,'" Kelly wrote. "In other words, this court is bound by the Michigan Supreme Court's decision as a matter of law."

The dismissal leaves Nessel's office with the decision of whether to seek new charges against the defendants and proceed with preliminary examinations in an effort to move the cases to circuit court — a challenging task nearly eight years out from the start of the Flint Water crisis.

In a joint statement, Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy said they would review the ruling and continue the office's "pursuit of justice for Flint."

Hammoud and Worthy, who are leading the Flint water crisis prosecutions for Nessel's office, expressed "anger and disappointment" and slammed the court decisions that have blocked their cases so far, alleging the courts "once again sided in favor of well-connected, wealthy individuals with political power and influence instead of the families and children of Flint."

"...these defendants have spared no expense to ensure that these cases were disposed of by judges based upon anything except the merits of the cases," Hammoud and Worthy said. "As a result, the victims of Flint have never had their day in court."

Michigan Solicitor General Fadwa Hammoud, right, and Wayne County Prosecutor Kym Worthy, left, have led the Flint water crisis prosecution team for Attorney General Dana Nessel since the spring of 2019.

Under previous charges authorized in 2017 by then-Republican Attorney General Bill Schuette, Lyon's preliminary examination took months before he was bound over for trial. In June 2019, Nessel's office dropped the first manslaughter cases against Lyon and Wells and restarted the Flint water investigation following a three-year prosecution effort by Schuette's team.

Nessel's office was hoping to avoid a months-long delay by bypassing preliminary examinations through a one-person grand jury indictment.

If Nessel chooses to seek new charges, she could encounter statute of limitations restrictions, which require a defendant to be charged, in most cases, within a six-year window after an alleged crime has been committed.

Some of the charges Nessel's office sought dated back to the 2014 switch to Flint River water — which triggered a series of decisions that led to lead-tainted water pouring from Flint spouts — and other charges related to decisions or statements made to investigators in the years after the water switch.

In a statement Tuesday, Lyon's attorney Chip Chamberlain said the decision was "the logical result of a misguided prosecution which used unlawful processes to investigate crimes that never occurred."

Lyon believes that a "fair and impartial investigation would exonerate him," Chamberlain said.

"The prosecution has resorted to misleading and unfounded public statements about the case indicating it may file charges – for a third time," Chamberlain said. "There was no basis in 2017 to charge Director Lyon, no basis in 2021 to charge him again, and there is no basis today. This misuse of the criminal justice system has to stop."

Randall Levine, attorney for Baird, said the legal battle over the state's use of a one-man grand jury has been a "long haul."

"The government deliberately chose to use this archaic statute in order to proceed against Mr. Baird in secrecy, hoping to deny him a right to preliminary examination," Levine said.

The Michigan Supreme Court ruled 6-0 in June that charges against Lyon should be dismissed because Nessel's office used a one-judge grand jury to indict him. The court said the one-judge grand jury law allows judges to issue investigative subpoenas or arrest warrants but it does not permit judges to issue indictments.

The Supreme Court said Genesee County Circuit Court erred in refusing to dismiss Lyon's case and remanded the case back to the circuit court for proceedings "consistent with this opinion."

Nessel's office, seeking to lessen the effects of the high court order, argued Kelly should maintain the validity of charges against all defendants. The office moved to proceed with preliminary examinations for those charged with felonies and permission to proceed through a formal complaint in the cases of those charged with misdemeanors.

But Kelly on Tuesday ruled that because the Supreme Court found the one-man grand jury didn't have the power to issue indictments, all indictments issued through it in the Flint cases "were void."

"Therefore, anything arising out of the invalid indictments were irreconcilably tainted from inception," Kelly wrote.

Nessel issued new indictments in January 2021 after a months-long one-man grand jury process. She charged nine individuals: The seven whose circuit court cases were dismissed Tuesday and two others charged on misdemeanors in district court, including Snyder, a two-term Republican governor.

Former Flint public works director Howard Croft also was charged with two misdemeanor counts of willful neglect of duty.

Since both Snyder and Croft's indictments also were handed down by the one-man grand jury, it is likely they'll see similar dismissals in district court.

eleblanc@detroitnews.com