Allies of Rick Snyder slam secret proceedings, evidence in Flint water charges

LANSING — Former Michigan Gov. Rick Snyder and top aides turned themselves in to police last week, sat for mugshots, were arraigned and pleaded not guilty to criminal charges resulting from a multi-year investigation in the Flint water contamination crisis.

Investigators had told them to prepare to surrender two days earlier, but not why.  

Snyder is due back in court Tuesday, but he and other defendants still don’t know the nature of the evidence against them, or whether prosecutors uncovered new evidence after relaunching the probe in 2019.

That’s because Snyder and his aides were indicted following an unusual, secretive process: a one-judge grand jury that is fueling complaints from Snyder allies that the charges against the Republican former governor are political.

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Under state law, Genesee County Circuit Judge David J. Newblatt — a Democratic appointee —  was authorized to issue subpoenas, grant immunity to witnesses and pursue investigative leads of his own choosing before deciding whether to indict.

But no one – including the judge, prosecutors or witnesses – is allowed to talk about the proceedings because doing so would itself be a crime. 

The process “wasn’t fair at all,” said John Truscott, a Republican consultant and ally of former Snyder Health Director Nick Lyon, who is again fighting charges of involuntary manslaughter over Legionnaires Disease deaths in Genesee county. 

“Under a one-man grand jury, the judge doesn’t get the total picture because the defense is not allowed to present,” Truscott said.

Experts say the process shielded Snyder officials from public scrutiny as potential suspects during the investigation, but it now limits their ability to mount a defense in the court of public opinion, a gap defense attorneys criticized. 

"The secretive tactics of a 'one-person grand jury' used to bring this meritless indictment with no details regarding the charge should shock and scare every American," attorney Charlie Spies said in a statement. His firm, Dickinson Wright, is representing former Snyder communications director and chief of staff Jarrod Agen against new charges.

Michigan prosecutors brought charges against nine former state and local officials last week in an investigation led by Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy.

They defended the grand jury process last week as they announced indictments over the Flint crisis, precipitated by a 2014 drinking water switch ordered by a Snyder-appointed emergency manager that ended up exposing tens of thousands of residents to toxic lead.

“A grand jury provides a broad range of investigative tools,” Hammoud said, suggesting the size and scope of the Flint investigation required creative thinking. “The greatest benefit to our use of the grand jury was that it clearly provided the ability to conduct this investigation expeditiously and efficiently and to use the public resources in the most efficient way possible.”

One-judge grand juries are “unique to Michigan” and “unique within Michigan” because they are so rarely used, said Fred Dilley, a Grand Rapids attorney who has worked as a litigator in both state and federal court. 

Michigan is the only state in the nation with a statute allowing for one-judge grand juries, although two other states, Wisconsin and South Dakota, give judges similar authority for private investigations known there as “John Doe proceedings.” 

“It’s controversial because it’s so secretive, and it sort of flies in the face of due process, or so people who get indicted would tell you,” Dilley said of the Michigan law. 

“There’s an awful lot of power concentrated in one person, so like many things in the legal system, it’s only as good as the people who are carrying it out.”

‘Fundamentally flawed’

Newblatt, who acted as a one-man grand juror and issued indictments, was appointed in 2004 by then-Gov. Jennifer Granholm, a Democrat. Prior to that, he served as an assistant Genesee County prosecutor and a private attorney. 

In announcing the indictments, Hammoud and Worthy declined to detail any testimony or evidence they presented to Newblatt, citing grand jury secrecy rules. 

“We felt that a grand jury was the most expeditious and efficient way to proceed,” Worthy said.  “It’ll become clear [why] as this unfolds.”

Prosecutors still must prove guilt in any case that makes it to trial, when all relevant evidence would likely be disclosed. But defendants indicted by a grand jury do not have the opportunity to publicly challenge evidence in a preliminary examination traditionally used to determine if a felony case will advance to trial. 

Snyder and former Flint Public Works Director Howard Croft are due in court Tuesday for their first pre-trial hearings. Both face two charges of willful neglect of duty, misdemeanors punishable by up to one year behind bars or a $1,000 fine. 

Jamie White, a lawyer representing Croft, called Michigan’s one-judge grand jury system “fundamentally flawed” because it denies the defense the opportunity to cross examine witnesses or challenge evidence in a probable cause hearing.

His client was not ultimately charged with a felony, but “you don’t go to a grand jury and ask for a misdemeanor, so whatever they asked the judge to do as it pertained to Mr. Croft and presumably the governor, the judge found that there wasn’t enough,” White said.

White said Attorney General Dana Nessel’s office has given “zero explanation” why it “went down this non-traditional route.”

White said he plans to file a motion Tuesday in an attempt to compel prosecutors to disclose evidence that led to indictments against his client. He called the grand jury a “biased process” that denied Croft the ability to confront the evidence against him before he was indicted. 

The new indictment against Agen shows he is accused of felony perjury for “knowingly and willfully” making a false statement or statements during an investigative interview on Feb. 11, 2017. That was less than two weeks after a public announcement Agen was leaving the Snyder administration to work for Vice President Mike Pence. 

Top Snyder aide Rich Baird faces a series of new felony charges including perjury, misconduct in office, obstruction of justice for “attempting to influence and/or interfere with” Flint legal proceedings and extortion for allegedly threatening “to cause harm to the reputation and/or employment” of a state-appointed Flint board.

Sndyer, meanwhile, is facing two misdemeanor counts of willful neglect of duty for allegedly failing to properly supervise his appointees and failing to declare a state of emergency immediately after he had “notice of a threat” in Flint, where he did declare an emergency over the drinking water crisis in January of 2016. 

‘Tremendous power’

Hammoud and Worthy, leading the prosecution for Nessel, had dismissed earlier Flint charges in 2019 to restart what they called a flawed probe under former Attorney General Bill Schuette. He had not accused Snyder of crimes but had prosecuted Lyon and other state officials. 

Michigan law gives a one-judge grand jury “tremendous power,” and it provides “tremendous advantages” for an investigation, said Dilley, the west Michigan attorney. He noted the secrecy may prevent a suspect from knowing he or she is suspected of any crimes, and it also protects witnesses from potential intimidation. 

If a one-judge grand jury decides against indictments, the public would never know, and that “preserves the reputation of the person being investigated,” Dilley said. For some public figures, “being investigated is sometimes the kiss of death,” he noted. 

The Michigan Supreme Court upheld the state’s one-judge grand jury law in 1967, rejecting arguments it violated the separation of powers doctrine and due process clause of the U.S. Constitution. 

Witnesses who testify before one-judge grand juries are entitled to have their attorneys present, justices noted. And state law limits the role of the judge by prohibiting him or her from presiding over any criminal trial that follows.

The secrecy provisions, the high court explained, “reduce the risk of unwarranted damage to the reputations of witnesses appearing before the grand juror, as well as to enhance the likelihood of the inquiry’s success.”

Ingham County Circuit Court Judge Rosemarie Aquilina said one-judge grand juries can be “helpful” in cases like the Flint water crisis marked by intense public scrutiny, emotion and questions over tainted or lost evidence.

She served as a one-judge grand jury only once in her 17-year judicial career: In 2012-13, when she cleared then-state House Speaker Jase Bolger of criminal wrongdoing in an alleged election-rigging scheme. 

“I basically ran it like a mini-trial, but I was judge, jury and everything,” Aquilina recalled.  “I think it’s an effective way when you have these kinds of issues to have that first look and do it privately, because these kinds of things can ruin lives.”

One-judge grand juries had been more common prior to 1995, when Michigan adopted a new law allowing prosecutors to use their own investigative subpoenas, said Jim Burdick, an attorney who had represented state water quality analyst Adam Rosenthal in an earlier case dismissed as part of a plea deal with Schuette. 

Prosecutors “didn’t need a one-man grand jury after that,” Burdick said, suggesting Nessel’s office may have requested one in the Flint water crisis investigation because “publicity-wise, it sounds good.”

Despite their rarity, Worthy has significant experience with one-judge grand juries. The Wayne County prosecutor’s office has increasingly requested them as part of an initiative to speed investigations and proceedings in non-fatal shooting cases. 

The one-judge grand jury “supplants the need for an investigative subpoena, complaint and warrant, and preliminary examination,” according to an analysis of the Wayne County initiative by AEQuitas, a criminal justice consulting firm. 

“The streamlined nature of the process speeds up investigations, reducing opportunities for offenders and their allies to intimidate victims and witnesses. The secrecy of the grand jury proceedings also ensures that witnesses can speak freely without fear that their testimony will be made public.”