Inside Out

The Flint water crisis, a tragedy in which the government failed at all levels, never led to criminal convictions. Unsatisfied with the outcome, Michigan Attorney General Dana Nessel is using a secretive one-man grand jury to bring charges to speed up potential prosecutions, but the move has been anything but swift.
55
Illustrations by Brian Britigan
Illustrations by Brian Britigan

Nearly six years after former Michigan Attorney General Bill Schuette announced the first round of criminal charges against state and city officials involved in the Flint water contamination crisis, none of the 15 persons he eventually indicted has served a day behind bars, nor has anyone gone to trial.

Since the first defendants were named in April 2016, seven of them accepted plea agreements for minor misdemeanor offenses with no fines or jail time attached. The deals were offered by Schuette’s special prosecutor, Todd Flood, a Royal Oak lawyer Schuette hired to lead the investigations.

In January 2021, the case hit another milestone when Flood’s successors under Attorney General Dana Nessel, Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy, announced that after 12 months of a rarely used, secret, one-man grand jury investigation, nine top state and local officials, including former Gov. Rick Snyder, would face 42 charges in the case.

The indictments were brought by Genesee County Circuit Judge David Newblatt, a 16-year member of the court who was appointed a one-man grand juror by the chief judge of that bench in January 2020. Newblatt issued the indictments a year later.

The one-man grand jury process is unique to Michigan and has been used sparingly in two counties, including Wayne County. Under an obscure 1917 state law, a judge can be appointed to act as an investigator in a criminal matter, use his or her findings to issue charges or indictments, and then order the defendants to face trial in a circuit court. This process allows the judge to move the cases immediately into circuit court and sidestep preliminary examinations in district court, where determinations would normally be made on whether the charges are legitimate.

For example, Newblatt charged Snyder with two misdemeanor counts of willful neglect of duty, each punishable by one year and $1,000 fines. Defense lawyers cried foul, saying the one-man grand jury tactic is unfair, unconstitutional, and robs their clients of due process under the law. So far, the procedure has survived at least two circuit court challenges to dismiss the cases, with more appeals to come in the Michigan Court of Appeals.

“They announced these indictments with a big splash last January, saying that this process was going to be more efficient than Schuette’s, but here we are now in December, 11 months on, and we haven’t even gotten all the discovery material yet,” says criminal defense attorney Harold Z. Gurewitz, principal of Gurewitz and Raben in Detroit. He noted that the one-man grand juror’s term consumed an additional 12 months before the indictments were announced. It has also produced 31 million pages of evidence that he and other lawyers in the case are analyzing.

Gurewitz’s client, Nancy Peeler, manager of the Early Childhood Health Section of the Michigan Department of Health and Human Services, is charged in the grand juror indictments with two counts of misconduct in office, both felonies punishable by five years in prison and/or $10,000 in fines.

“The use of the so-called one-man grand juror is unconstitutional because it violates the separation of powers,” says Charles “Chip” Chamberlain, founding partner of Chamberlain and Wiley, a law firm in Grand Rapids. “You’re converting a judge who is a judicial officer into an executive officer and that violates the Michigan Constitution, where only judges can adjudicate and only prosecutors can prosecute.”

Chamberlain’s client, Nick Lyon, former director of the Michigan Department of Health and Human Services, faces nine counts of involuntary manslaughter based on the Legionnaires’ disease deaths of nine persons who were sickened by consuming Flint River water. Peeler and Lyon are among six of the original defendants charged by Schuette who are now facing charges for the second time.

Chamberlain and Gurewitz say the century-old statute creating the so-called one-man grand jury procedure used to indict their clients doesn’t apply today. Both have filed appeals to have the cases dismissed against their clients.

“The statute is based on an old Detroit police court going back to the 19th century,” Chamberlain says. At that time, police had no authority to force suspects to cooperate in an investigation. “People would just tell the police to buzz off, and the police couldn’t solve crimes. So the way they solved that problem was to say you have to go before a judge who has the authority to swear you in and has authority to hold you in contempt if you don’t cooperate. So that was to solve that ancient problem, and it isn’t necessary today.”

It’s significant that the law for the procedure didn’t start out as a grand jury. “It’s a judicial investigation procedure,” Gurewitz says. “Sometime shortly after that law was passed for Detroit in 1917, newspapers started referring to it as a one-man grand jury, and the name stuck. It stuck because it was done in secret and because the judge doing it had the authority to subpoena witnesses, so those are the similarities to a grand jury. The one-man grand jury name stuck, like tissues are called Kleenex and cola drinks are Coke.”

Because of grand jury secrecy rules adopted by the current procedure, Nessel and other state officials have declined to comment on the cases or give details of Newblatt’s role in the investigation.

“The secrecy provisions over the grand jury proceedings do not allow for a discussion of the grand jury evidence underlying the charges at this time,” Hammoud said in a statement. “We must remember that the Flint water crisis is not some relic of the past. At this very moment, the people of Flint continue to suffer from the categorical failure of public officials at all levels of government who trampled on their trust and evaded accountability for too long. Where we believed the evidence would (lead) to a criminal charge, we sought and obtained warrants for those crimes.”    

The one-man grand jury process is so obscure that law professors contacted for comment at a handful of law schools said they didn’t know enough about it to speak on the record. In a letter to the editor of The Detroit News last March, retired U.S. District Court Judge Avern Cohn denounced the proceedings. “The defendants in the Flint case have been unfairly treated by denial of access to the evidence on which the juror found probable cause,” he wrote. “They have no information as to the basis of the indictments, particularly the evidence to support a finding of probable cause.”    

He pointed out the late Robert Scigliano, a political science professor at Michigan State University and one of the few experts of the process, made it clear in his writings that the use of a one-man grand jury should be limited to cases of political corruption and conspiracies where this kind of inquisition might be necessary. “You should know that on July 9, 1949, The Detroit News expressed skepticism over the one-man grand jury process, calling it a ‘failure in democracy,’ ” Cohn wrote.    

Genesee County Circuit Court Judge Elizabeth A. Kelly, who joined the bench in 2019, has already rejected motions by Chamberlain and Gurewitz to dismiss the charges against their clients based on similar probable cause arguments.

The Flint water crisis began in April 2014 when a state-appointed emergency manager, in an effort to save money, switched the city’s drinking water supply from Lake Huron water treated by the Detroit Water and Sewerage Department to water from the Flint Water Treatment Plant. Officials later discovered Flint water officials failed to require corrosion-control chemicals as part of the water treatment process, and that blunder exacerbated the disaster of toxic lead leaching through substandard pipes into nearly 10,000 Flint homes.

The city switched back to the Detroit water system in 2015. In his 2016 State of the State speech, Snyder apologized for the actions that led to the water crisis and vowed to fix the water disaster.

In August 2021, the city agreed to a $641 million settlement with the state over the crisis. The city will also receive $99.3 million in relief funds through the $1.9 trillion American Rescue Plan signed into law in 2021.

The criminal investigation into the fiasco took a different tack when Nessel replaced Schuette in 2019. She fired Flood, Schuette’s special counsel, and closed down his office which, at one time, had 18 lawyers and investigators working on the case. By that time, Flood had already been paid $8.2 million for his three years of work. As of January 2021, the state had paid out more than $35 million in legal bills for current or former state employees charged in the case.

Flood’s departure was precipitated by the discovery of a cache of 23 boxes of documents found in the basement of a state building. None of the material had been reviewed by Flood’s investigators, according to Nessel. In reorganizing the investigation, Nessel said she erected a wall between the civil and criminal sections of the case, assigning separate staffs of lawyers and investigators to handle each area.

Nessel headed up the civil side, assigned the criminal investigation to Hammoud, and recruited Worthy to join the state team. In June 2019, after preliminary hearings that took a year to complete in district court, the cases of Nick Lyon and Dr. Eden Wells, the state’s former chief medical officer, were bound over for trial to the Genesee Circuit Court.

Five other cases were in the process of their own preliminary examinations when the Nessel team shocked many by dismissing all the cases without prejudice — a legal designation that allows defendants to be recharged after a new investigation.

In a statement from the attorney general’s office, Hammoud and Worthy said they had grave concerns about the investigative approach and legal theories embraced by the former OSC (office of special counsel) — particularly regarding the pursuit of evidence.

On a Michigan Radio program, Nessel said the cost of the OSC’s work was outrageous and she wasn’t satisfied that the cases had been handled properly. Particularly galling were the seven cases Flood reduced to misdemeanor pleas, in which taxpayers paid millions of dollars to achieve the lightest possible legal outcome.

Among the cases settled with a misdemeanor plea was that of Liane Shekter-Smith, the former chief of the Office of Drinking Water and Municipal Assistance in the Michigan Department of Environmental Quality. She also holds the distinction of being the only state employee who was fired shortly after the Flint disaster became a national scandal.

“The use of the so-called one-man grand juror is unconstitutional because it violates the separation of powers,” says Charles “Chip” Chamberlain, founding partner of Chamberlain and Wiley, a law firm in Grand Rapids. “You’re converting a judge who is a judicial officer into an executive officer and that violates the Michigan Constitution, where only judges can adjudicate and only prosecutors can prosecute.”
– Charles chamberlain, founding partner, chamberlain and wiley

Flood charged her with misconduct in office and willful neglect of duty, and informed her that she would also face involuntary manslaughter charges stemming from the Legionnaires’ disease deaths in Flint.

A law firm hired by Shekter-Smith was paid $1.2 million by taxpayers to defend her, and facilitated her plea of no contest to an obscure and completely unrelated minor misdemeanor charge of disrupting a public meeting — a mark that has since been wiped off her record. In September, an arbitrator found she had been made a “public scapegoat” who lost her job because of politics. He ordered the state to pay her $191,880 in back pay and benefits. The Whitmer administration declined to appeal the award and in November agreed to pay her $300,000 to put an end to the matter.

The arbitrator, Sheldon Stark, said Shekter-Smith had “an exemplary record” and her department director, Keith Creagh, fired her without talking to her, or waiting for a state police investigation that would later exonerate her. For 19 months, from the summer of 2019 until January 13, 2021, the Flint criminal investigation disappeared from public view. Not until this new round of indictments was announced did lawyers and their clients learn that the new 42 charges brought against them was developed by Newblatt, acting as a one-man grand jury.

Last March, U.S. District Court Judge William Crawford refused to dismiss the charges against former Gov. Snyder, whose lawyers had argued that because he worked from his office in Lansing and Ingham County, and not Genesee County, the indictment against him was in the wrong place. If the case goes to trial, a jury can determine if the charges of willful neglect occurred within the boundaries of Genesee County and Flint, Crawford ruled. 

Gurewitz and Chamberlain are awaiting decisions on other motions they filed with Kelly to have the cases thrown out. In fact, Gurewitz is appealing to the Michigan Court of Appeals to have a panel review Kelly’s earlier decision on the validity of the case. In her decision she said the Michigan Supreme Court has already ruled the one-person grand jury procedure legal, comparing it to the citizen’s grand jury used in state and federal courts. Kelly also maintains that defendants charged by the one-man grand jury have no right to a preliminary examination.

“Basically Judge Kelly’s ruling is that all grand juries are the same. Our argument has been (that the) so-called one-man grand jury procedure is based on a different statute,” Gurewitz maintains.

Chamberlain says even if use of the ancient Detroit statute was constitutional, the attorney general’s team didn’t follow the requirements of the statute. “In this case, the judge was not the investigator. We maintain the prosecutors were the investigators and they acted as though Judge Newblatt was a judicial officer similar to a federal system, which isn’t the case under the (Michigan) statute,” he says. “All the judge has the authority to do is to investigate and make a recommendation to prosecuting authorities. He doesn’t sit as a judge, but that’s the way they conducted it.”

Worthy is the only prosecutor in Michigan who has used the one-person grand juror to any extent, nearly always in violent criminal cases in Detroit. She maintains it’s a vital crime-fighting tool, as its secretive rules protect the identity of reluctant witnesses who might be afraid to come forward in such a high-profile case.

Worthy and Hammoud said that by adopting the grand juror tactic, justice will be better served by speeding up the cases, bypassing lengthy preliminary examinations, and going directly to trial. The process is also cheaper, as Newblatt didn’t need to hire investigators — assistant attorney generals and Wayne County prosecutors who were already on state or  county payrolls did the legwork for Newblatt.

Worthy has used the one-man grand jury method successfully in dozens of violent criminal cases in Detroit and Wayne County, but her record with a couple of high-profile cases fell short. In September 2013, she asked for a one-man grand jury to investigate the fiasco of the doomed Wayne County jail project that was canceled after $100 million in cost overruns and allegations of $29 million handed out in no-bid contracts.

One year after the case was filed, three persons, including Carla Sledge, the retired former chief financial officer for Wayne County, were indicted for misconduct in office and willful neglect of duty. In September 2018, the charges were dismissed. A judge found two defendants were improperly charged and Sledge didn’t show corrupt intent. “The project’s failure was at most negligence, per se, of all interested parties,” the judge determined.

Gurewitz represented Sledge in that case and points out that the charges brought against her were the same as the ones his Flint client Peeler is facing. “The Sledge case was similar to the Flint case because they wound up charging Nancy Peeler with the same kind of violation of misconduct in office, a common-law offense in Michigan, based on how she conducted herself as a civil service employee,” Gurewitz says. 

Another high-profile case in which Worthy used the one-man grand jury method to obtain warrants was the 2010 shooting death of Aiyanna Stanley-Jones, a 7-year-old girl who was killed during a Detroit police raid.

Detroit Police Officer Joseph Weekly was indicted on charges of involuntary manslaughter and a misdemeanor count of careless discharge of a firearm causing death. He twice went to trial, and both times the cases produced hung juries. In 2019, nearly 10 years after the shooting, Worthy dismissed the case against Weekly and he returned to active duty.

Gurewitz says the years of stops and starts and prolonged litigation since the first Flint charges were filed mocks all the defendants’ rights to a speedy trial. 

“It’s frustrating. Everybody deserves their day in court to get serious charges resolved,” Gurewitz says. “It’s been delayed — it was delayed the first time (under Schuette) because of the nature of the evidence, the various allegations, and the 3 million pages of evidence that came along with it. And now, despite the claims that the process would be speeded up, that’s not happening. We’re just bogged down by the complexities in the procedures initiated by the prosecutors and the attorney general’s office through the use of this very unusual grand juror procedure.”


Officials and the Charges

Names, positions, charges, and penalties for the nine defendants in the Flint water crisis case, brought by a one-man grand jury.

Jarrod Agen — Former director of communications and former chief of staff for former Gov. Rick Snyder; one count of perjury, a 15-year felony. 

Gerald Ambrose — Former City of Flint emergency manager; four counts of misconduct in office, five-year felonies and/or $10,000 in fines.

Richard Baird — Former transformation manager and senior adviser to Gov. Snyder; one count of perjury, a 15-year felony; misconduct in office, a five-year felony and/or $10,000 fine; obstruction of justice, a five-year felony and/or $10,000 fine; extortion, a 20-year felony and/or $10,000 fine.

Howard Croft — Flint’s former director of public works; two counts of willful neglect of duty, one-year misdemeanors and/or $1,000 fine.

Darnell Earley — Former Flint emergency manager; three counts of misconduct in office, five-year felonies and/or $10,000 fine.

Nick Lyon — Former director of the Michigan Department of Health and Human Services; nine counts of involuntary manslaughter, 15-year felonies and/or $7,500 fine; willful neglect of duty, a one-year misdemeanor and/or $1,000 fine.

Nancy Peeler — Manager of the Early Childhood Health Section of the Michigan Department of Health and Human Services; two counts of misconduct in office, each a five-year felony and/or $10,000 in fines; one count of willful neglect of duty, a one-year misdemeanor and/or $1,000 fine.

Richard Snyder — Former Michigan governor; two counts of willful neglect of duty, each a one-year misdemeanor and/or $1,000 fine.

Eden Wells — Former chief medical executive of the Michigan Department of Health and Human Services; received nine counts of involuntary manslaughter, 15-year felonies and/or $7,500 in fines; two counts of misconduct in office, five-year felonies and/or $10,000 in fines; one count of willful neglect of duty, one-year misdemeanor and/or $1,000 fine.

Facebook Comments