DETROIT (AP) — A judge did not have the power to issue indictments in the Flint water scandal, the Michigan Supreme Court ruled Tuesday in an extraordinary decision that overturns the charges against the former Gov. Rick Snyder, his chief health officer and seven others.
It’s a stunning defeat for Attorney General Dana Nessel, who took office in 2019, got rid of a special prosecutor and assembled a new team to investigate whether crimes were committed when lead contaminated Flint’s water system in 2014-2015.
State laws “authorize a judge to investigate, subpoena witnesses and issue warrants for arrest” as a one-person grand jury, the Supreme Court said.
“But they don’t allow the judge to issue indictments,” the court said in a 6-0 opinion.
The challenge was filed by former Chief Health Officer Nick Lyon, but the ruling also applies to Snyder and others who were charged by Genesee County Judge David Newblatt.
The attorney general’s office was reviewing the notice and made no immediate comment, spokeswoman Lynsey Mukomel said.
In a money-saving move, Flint managers appointed by Snyder transferred the city’s water source to the Flint River. State regulators have said the river’s water does not need to be treated to reduce its corrosive qualities. It was a ruinous decision: lead from the old pipes ran through the system for 18 months in the predominantly black city.
Snyder was charged with two counts of willful dereliction of duty. Former Lyon and Michigan medical director Dr Eden Wells has been charged with manslaughter over nine Legionnaires’ disease-related deaths when Flint’s water system may have lacked enough chlorine to fight bacteria in river water.
Six other people were also indicted on various charges: longtime Snyder fixer Rich Baird; former Senior Assistant Jarrod Agen; former Flint managers Gerald Ambrose and Darnell Earley; former Flint public works chief Howard Croft; and Nancy Peeler, director of the state health department.
Nessel assigned Fadwa Hammoud to lead the criminal investigation, alongside Wayne County District Attorney Kym Worthy, while the attorney general focused on settling the state lawsuits.
Hammoud and Worthy turned to a single-judge grand jury in Genesee County — a century-old and rarely used method — to hear evidence in secret and secure indictments against Snyder and others.
“There are no velvet strings in our criminal justice system,” Hammoud proudly said in 2021 when charges were filed. “No one – no matter how powerful or connected – is above responsibility when committing a crime.”
But she and her team, acting on Worthy’s recommendation, did not follow a traditional process. Hammoud still hasn’t publicly explained why.
Michigan prosecutors typically file charges after a police investigation. A single-judge grand jury is extremely rare and is used primarily to protect witnesses, especially in violent crimes, who may testify in secret.
“It appears that the power of an investigating judge to issue an indictment was simply an uncontested assumption, until now,” the Supreme Court said on Tuesday.
The Flint water switch and its aftermath have been under felony investigation since 2016, when then-Attorney General Bill Schuette, a Republican, appointed Todd Flood as special prosecutor. Schuette pledged to put people in jail, but the results were different: Seven people did not contest the offenses which were eventually expunged from their records.
Flood insisted he was gaining the cooperation of key witnesses and moving on to bigger names. Nonetheless, Nessel, a Democrat, fired him and pledged to start over after his election as attorney general.
Separately, the state agreed to pay $600 million as part of a $626 million settlement with Flint residents and homeowners who were harmed by lead-tainted water. Most of the money goes to children.
Meanwhile, about 10,100 lead or steel water pipes had been replaced in Flint homes last December.
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Ed White, The Associated Press