Flint water cases doomed by missteps from Dana Nessel’s office, experts say

• The Flint water crisis criminal cases ended last week as state prosecutors conceded they had no path forward 
• Legal experts say Nessel’s team made a series of missteps in a prosecution that was already difficult 
• The investigation’s ending left some in Flint dejected but unsurprised

Multiple legal missteps likely doomed the chances that Michigan Attorney General Dana Nessel’s office would force top state officials to stand trial on charges for their roles in the Flint water crisis, experts say.

A week after Nessel’s hand-picked team conceded the cases against former Gov. Rick Snyder and eight others were closed, legal and political observers say Nessel and her team took a perilous — and ultimately doomed — path that ended in a whimper, with no trials.

Flint residents call the failed criminal cases the latest in a string of injustices stemming from the crisis, in which residents of the impoverished city were ignored for months by state and federal officials after they complained of foul, discolored tap water that caused rashes and other physical ailments and threatened the health of thousands of children.

“It’s a slow-walk slap in the face,” said Kevin Croom, executive director of the Asbury Community Development Corporation in Flint. “Lives were lost, and it’s just like, ‘Deal with it, it happened, go on with your life.’"

Related:

• No convictions for Flint: Attorney general ends water crisis prosecutions
• Supreme Court: Flint water indictments against Rick Snyder, others invalid
• Snyder, top aides charged in Flint water crisis. Is that justice?
• Dana Nessel's office drops charges in Flint water contamination case

Legal experts and lawyers involved in the cases point to pivotal decisions made by Nessel’s team: Throwing out initial criminal charges brought under her predecessor’s watch; then restarting the investigation in 2019 and gathering evidence without adequate measures to weed out documents that should have been exempt from disclosure.

But perhaps the riskiest was relying on a one-person grand jury to issue  indictments. The rarely-used process ultimately undid the investigation after the Michigan Supreme Court rejected its use last year — and rejected subsequent appeals in recent months.

“In cases of high public import, when you do things that are unusual, you are necessarily opening yourself up to criticism and court challenges,” said Leonid Feller, a former federal prosecutor and expert in white-collar crime who is now a partner at Quinn Emanuel in Chicago.

Nessel’s team deflected blame, saying the state’s highest court “put the final nail in the coffin” of the Flint prosecutions by not siding with her team. They did not note that the Michigan Supreme Court, with a Democratic majority, ruled unanimously.

After eight years and a reported $60 million dollars spent on the criminal probes and defending the state in a class-action civil suit, neither former Attorney General Bill Schuette, a Republican, nor Nessel, a Democrat who took office in 2018 and was reelected last year, will have forced top state officials to stand trial for the Flint disaster.

The crisis unfolded when Flint, headed by a Snyder-appointed emergency manager, switched the source of drinking water to the Flint River in 2014 to save the cash-strapped city money.

That move backfired when water officials failed to add corrosion controls after the switch, allowing neurotoxic lead to leach from pipes into the city’s drinking water. City and state officials were accused of knowing the problem could occur, yet proceeding anyway, then ignoring residents’ complaints.

The crisis coincided with an outbreak of Legionnaires’ disease, a type of pneumonia caused by the waterborne bacterial Legionella, that killed at least 12 people.

Starting over as the clock ticks

In hindsight, experts said, the cases’ troubles under Nessel’s leadership began soon after she took office.

After accusing Schuette on the campaign trail of being an “opportunist” who used the crisis to further his political ambitions, Nessel quickly installed her own appointees to lead the investigation and dismissed Schuette’s appointed special prosecutor, private attorney Todd Flood.

Soon, the Nessel appointees — Chief Deputy Attorney General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy — opted to throw out charges brought by Flood’s team and start the investigation anew.

In a press release at the time, Hammoud and Worthy said they had “immediate and grave concerns about the investigative approach and legal theories” used by Flood and his team, and accused them of failing to pursue “all available evidence.” 

Cases were dismissed against eight defendants, including former Health and Human Services Director Nick Lyon, who saw his charges dropped a day before a judge was expected to rule on a motion to dismiss his cases. Also charged: state Chief Medical Executive Eden Wells, who faced an involuntary manslaughter charge, among others, and former Flint emergency managers Gerald Ambrose and Darnell Earley. 

Seven other, lower-level defendants had already reached deals allowing them to plead no contest, and at least two had agreed to testify against others.

The decision to restart the investigation left the Nessel prosecutors dangerously close to the statute of limitations — the state-imposed time limit in which prosecutors can file charges for crimes. In Michigan, that limit is six years for most felonies, and 10 years for involuntary manslaughter and some others. 

Hammoud and Worthy knew they were under a time crunch. So did Flint residents, some of whom were dismayed by the move to drop the original cases.

“The baby got thrown out with the bathwater,” said Rusty Hills, a public policy lecturer at the University of Michigan who advised Schuette during his tenure as attorney general and is a former chair of the Michigan Republican Party.

Hills told Bridge Michigan he felt it was a risky gambit for the new prosecutors, given how little time they had to refile criminal charges. 

“If everybody had to do it over again,” Hills said, “I'm not sure that that's the decision that would be made, because I think that just set back the effort.”

Potentially tainted evidence

Hammoud and Worthy had little room for error or delay. Their team set about collecting millions of documents and electronic devices relating to officials connected to decisions made about Flint, and dozens of new witnesses.

The pair said their aggressive evidence-gathering enabled them to bring charges the Schuette administration had not. New defendants included Snyder, the former governor, but also Richard Baird, a senior adviser to Snyder, and Jarrod Agen, a former Snyder chief of staff and spokesperson. Lyon, Wells, Ambrose and Earley were also named. 

But the approach would backfire.

Attorneys for several of the defendants complained that investigators had collected documents that should have been protected by attorney-client privilege. 

In response, Genesee County Judge Elizabeth Kelly ordered prosecutors to hire an independent “taint team” to review the evidence and weed out privileged items.

Prosecutors estimated that complying with the order would add years and tens of millions of dollars to the investigation — another delay for a case that couldn’t afford one. 

Feller, the former federal prosecutor, said in cases involving potentially privileged documents, prosecutors usually anticipate the need for a taint team and assemble one before gathering evidence. That saves time and protects prosecutors, who could be disqualified from a case if they’re found to have viewed privileged documents.

“It really should never come down to a court ordering you to have a team,” Feller said. 

An unconventional approach

The legal setback would later collide with another misstep by prosecutors: The unconventional decision to secure indictments from a one-person grand jury.

In a typical criminal case, prosecutors announce charges and publicly present evidence at a pre-trial hearing. At that hearing, called a preliminary exam, prosecutors must show they have enough evidence to go to trial and the defense is allowed to hear and question witnesses and try to convince a judge the case is too thin. 

A one-person grand jury is unique to Michigan and not commonly used, though Worthy’s office frequently used one-person grand juries in violent crime cases in Wayne County. Using this procedure has its benefits. It’s quicker, for one. And it can protect witnesses from threats or intimidation before trial. 

Defense attorneys had long seen one-person grand jury indictments as an affront to due process. But until Flint, none had ever challenged the procedure’s constitutionality in Michigan.

“I gotta say, shame on myself for not challenging it before,” said Ben Gonek, a Detroit-area defense attorney with experience in such cases.

Bill Swor, an attorney for former emergency manager Gerald Ambrose, said the law was clear to him, and later to the state’s highest court: a judge could not constitutionally be a grand juror and issue indictments.

“It was a flawed decision by the AG’s office or whoever made the decision (to use it),” Swor said.

Several Flint defendants argued the closed-door process denied them the right to a preliminary exam where they could hear and rebut the evidence against them.

The Supreme Court unanimously agreed in June 2022, ruling that Michigan law doesn’t allow a single grand juror to issue indictments. 

"The prosecution cannot simply cut corners in order to prosecute defendants more efficiently,” Justice Richard Bernstein, who was nominated by Democrats, wrote in a concurring opinion. “To allow otherwise would be repugnant to the foundational principles of our judicial system.”

The ruling prompted lower courts to dismiss all charges against the Flint defendants on procedural grounds. In most cases, re-filing appeared impossible, given the six-year statute of limitations that covered most of the charged offenses.

Lyon and Wells were charged with involuntary manslaughter and Baird was charged with extortion — offenses with a longer, 10-year statute of limitations. But in a statement to Bridge, Hammoud and Worthy acknowledged the court order requiring a review of evidence for “taint” likely would have dragged investigations past the statute of limitations for those crimes, too.

“​​We recognize that nothing will ever heal the harms perpetrated on the people of Flint by this man-made crisis,” the prosecutors said. “We felt it best, moving forward, to focus our efforts on providing the people the answers they so badly deserve.”

‘We know it happened’

With the cases dismissed, it’s anybody’s guess whether either team of prosecutors — those appointed by Schuette or Nessel — would have secured convictions had the major cases proceeded to trial.

Legal experts said it’s difficult to convict public officials for disastrous policy decisions without clear evidence of malicious intent.

“I can’t think of any successful cases,” Feller said. “But candidly, I can’t think of a whole lot of cases being brought on that kind of theory.”

Attorneys and allies of the defendants have long complained that political zeal blinded Schuette and Nessel to the weakness of their cases.

“They were looking for that opportunity to go after (state officials),” said John Truscott, a long-time Republican who was once a spokesperson for  Gov. John Engler.

“They knew that would get the national attention they were seeking.”

Hammoud and Worthy argue the opposite.

“This case was not about politics,” they said in a statement to Bridge, “it was about the evidence.”

It’s not surprising prosecutors would have felt duty-bound to bring charges despite long odds, said Democratic strategist Adrian Hemond of Grassroots Midwest.

“They may well have felt that from a legal perspective they were compelled to bring charges, but I’m not an attorney,” Hemond said. “From a political perspective it makes a lot of sense to have government officials held accountable.”

That the cases ended on procedural errors, with nobody deciding whether Snyder and other defendants are guilty or innocent, is difficult to accept, said Croom, of the Asbury Community Development Corporation in Flint. 

He said he doesn’t need a judge or jury to tell him that the treatment of his city was criminal.

“We know it happened,” he said. “We’re never going to forget it, and we’re never going to forgive them for what they’ve done to us.”