Residents held a rally drawing attention to the Flint water crisis starting five years ago | Nick Manes
When Attorney General Dana Nessel’s office announced earlier this month that it would drop all charges brought in the criminal investigation of the Flint water crisis, it made national headlines — and shocked the city’s residents, who have waited half a decade for justice.
Now, as Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy prepare for a Friday town hall in Flint in which they’ll attempt to justify the move and face questions from those very residents, legal experts are saying the unusual decision could mean an even longer delay.
“I would be surprised if there was a trial in 2020,” said Peter Henning, a Wayne State University law professor who specializes in criminal procedure and white-collar crime. “It’s a possibility, but if I’m the defense, I’m going to sit back and say, ‘Show me everything, I want to see it all,’ and demand all the evidence in the case. … This is not going to get done quickly.”
Flint residents have reacted with anger and disbelief to the long history of delays in the criminal investigation of the city’s 2014 switch to the Flint River as a water source, from activists calling it “awful and complete bullshit” to wary statements of impatience from the city’s ambassadors to Lansing.
In announcing the decision to scrap their predecessors’ work and start again, Nessel’s team of prosecutors said that the original investigation was flawed to the point of uselessness, forcing their hand in reformulating the charges.
According to Hammoud and Worthy, “all available evidence was not pursued” by the team assembled by former Attorney General Bill Schuette to prosecute the case. And they argue that the additional delay — and additional spending — associated with restarting it is necessary in order to conduct a “thorough, methodical and ethical investigation.”
But as the alleged crimes recede into the past and defendants breathe a temporary sigh of relief, a new crop of legal challenges looms on the horizon. And new prosecutors in town are taking a risk that their work will be worth the additional wait.
The Flint water crisis criminal investigation was started in 2016 by now-former Attorney General Bill Schuette, who created the independent Office of Special Counsel (OSC) headed by metro Detroit attorney Todd Flood.
Less than six months after Nessel took office — and control of the investigation — the Associated Press uncovered search warrants authorizing the seizure of former Gov. Rick Snyder’s state-issued devices. At the time, Hammoud announced that “the prosecution is aware of substantial potential evidence that was not provided to the original prosecution team from the onset of the investigation.”
That evidence is at the crux of the investigators’ decision to drop the charges, clearing the way for their yet-to-be-unveiled reboot of the case. Flood was replaced at the head of the investigation by Hammoud in April.
In the statement announcing their controversial decision, Hammoud and Worthy wrote, “From the outset, our team seriously considered dismissal of all pending cases initiated by [the OSC]. … We cannot provide the citizens of Flint the investigation they rightly deserve by continuing to build on a flawed foundation.”
Henning said that “if there’s one thing that haunts trial prosecutors,” it’s the prospect of previously undiscovered evidence surfacing during a trial.
“I think one of [the prosecutors’] concerns is that … there are files out there that haven’t been reviewed, and there’s always a certain mistrust when a new prosecutor comes in,” Henning said.
If evidence that could potentially help in proving a defendant’s innocence surfaces during the pre-trial process, a prosecutor can move for the charge in question to be dismissed without prejudice, clearing the way for it to be re-introduced accounting for new evidence. But if it surfaces once the trial has begun, double jeopardy rules come into play, meaning the charge is usually thrown out the window.
“If they reformulate [the charges] they may be able to build a stronger case, and I think that’s their hope,” he said. “But also, in the back of their mind, [is] the last thing you want to have happen as a prosecutor is for there to be evidence that should’ve been turned over to the defense and was not. That can blow up a case, quickly.”
Watching the clock
As state prosecutors now redouble their efforts, few are expecting a speedy resolution. And they may be forced to race against the clock as the state’s six-year statute of limitations for most felonies and misdemeanors draws near.
“The clock starts ticking on the date of the alleged criminal act,” said David Moran, University of Michigan law professor and co-founder of the Michigan Innocence Clinic. “They’re going to have to hustle [to file charges on] any acts alleged to have occurred, to the extent that there are charges that may be based on acts allegedly committed a year before the switch [in 2014].”
Moran said that prosecutors are unlikely to let that happen, but that if exculpatory evidence were to surface and lead to a charge being dismissed in pre-trial, the clock would continue running.
“They’re not going to let the statute run out on any defendant for whom they have a pretty strong feeling there was criminal conduct just because they can’t get through [all the evidence],” Moran said. “They’ll file charges if they have probable cause and be prepared to dismiss, but obviously [once the statute of limitations runs out], that’s a final dismissal.”
And Henning noted that statute of limitations issues aside, the passage of time poses its own challenges.
“The more time that goes by, if we’re talking about events from 2014 and 2015 and the case doesn’t come to trial until 2021, that big of a gap in time elapsed can create serious problems for prosecutors,” Henning said.
“You may be asking a witness, ‘What do you remember in 2015?’… I can show you an email and say, ‘You wrote this.’ You can say, ‘OK, but I don’t remember it.’ So you have the challenge of fading memories, which is going to be an issue for prosecutors.”
Too much, too soon?
In 2017, then-Special Prosecutor Flood charged four state employees with involuntary manslaughter in deaths related to the water crisis, two of them related to the attendant outbreak of Legionnaires disease in the city. All four charges were dropped by Hammoud and Worthy.
Moran cited the inherent difficulty in proving negligence on the part of a government or government officials, especially with regard to those involuntary manslaughter charges.
“Showing the necessary mental state is going to be a challenge,” Moran said. “Proving that when people made these decisions they were aware of a substantial risk of death or great bodily harm, or that they should have been. … That kind of showing is easy for a drunk driver, but a lot harder to make for a bureaucrat who makes a decision.”
Michael Pitt, the lead attorney for the simultaneous civil lawsuits brought on behalf of Flint residents against the state, added that the problems with the initial investigation may not have been limited to just their nature, but their number.
“I believe there will be new charges, and I agree they’re going to be reformulated,” Pitt said. “I think [Nessel] probably recognizes that there were too many people charged at the same time.”
Pitt contrasted the pre-Nessel water crisis investigation with the way then-AG Schuette conducted the state’s investigation of Michigan State University and the Larry Nassar sexual abuse scandal.
“There were a lot of people involved in that affair in 2014, and they went after [recently convicted MSU dean William] Strampel singularly; they got a conviction, and on a felony,” Pitt said. “That could’ve been how the Flint case was handled. They could’ve gone after one or two people, and gotten a conviction, and then people would start to plea.”
The original investigation under Schuette’s Office of Special Counsel included 59 charges against 15 state and city officials.
The OSC faced accusations that its prosecution of high-level officials in former Gov. Rick Snyder’s administration were politically motivated as Schuette planned his unsuccessful 2018 gubernatorial campaign, an accusation he and his allies fervently deny.
Two of those charged with manslaughter were former Michigan Department of Health and Human Services (MDHHS) head Nick Lyon and the state’s former chief medical executive, Eden Wells, both high-ranking Snyder appointees.
“When Schuette was the attorney general, he launched three investigations. We handled all of them the same way, and nobody’s criticized the Nassar case; nobody’s criticized the Catholic Church investigation,” said Rusty Hills, Schuette’s former senior advisor. “We handled this the same way, so I’m somewhat mystified as to why this one has become a political lightning rod.”
Hills defended the way the investigation was conducted in conversation with the Advance, saying, “The size and scope was simply staggering, and that was reflected in the number of charges that were brought by Flood and the OSC. It had to be big because the case was big.
“There’s a new team in town and they get to make decisions,” Hills said. “We felt we had strong cases, and we were prepared to go to trial. … We had millions of documents that we’d reviewed, many of us gave subpoenas and interviews to build the case and we felt confident, but they [Nessel’s office] have to do what makes them feel confident.”
Schuette also defended his office’s investigation Tuesday in an op-ed for MLive, writing that “charging decisions were always made with painstaking thoroughness.”
Risk and reward
Hammoud and Worthy have said they won’t comment further on the investigation until after Friday’s town hall at 5:30 p.m. at the UAW Local 659 Hall in Flint.
Moran noted in conversation with the Advance one additional wrinkle in the case — the rare step of dismissing all charges could lead to defendants more effectively bolstering their efforts.
“Dismissing all the charges means there’s no restraint on the defendant,” Moran said.
“If you’re not facing charges, or any likely charges, there’s no problem with your talking to other witnesses, or gathering evidence, or other things defendants do to defend themselves that become dicey once charges are filed, because then they start to look more like obstruction or witness tampering,” Moran said. “There’s no tampering if there’s no case.”
Still, Wayne State’s Henning says that in all likelihood, the confusion and delay in bringing charges to trial that marked the original investigation may have made that a risk worth taking in the eyes of Nessel’s office.
“This is rare,” Henning said. “There are cases where charges are withdrawn, but usually it’s on a decision that there’s not enough evidence to prove the case. Normally it’s not that they’re going to reinvestigate, and that’s what they announced. … It’s uncommon, but not unknown.
“I think there were enough concerns raised that they decided to just step back and start all over,” he continued.
“I don’t think [Schuette’s OSC] had a clear game plan going in, and now it’s just, ‘Let’s dismiss it and start all over, and we get a do-over.’”
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