Questions the AG’s Office Should Answer

Last week, Judge Elizabeth Kelly dismissed the felony charges against seven of the Flint Water defendants following a unanimous Michigan Supreme Court ruling earlier this summer that the indictments brought by the secretive one-person grand jury were unconstitutional.

After two failed prosecutions have now ended under the watch of Michigan Attorney General Dana Nessel, this saga should be over. Instead, Nessel and her team have said they will continue fighting – less than a month from the November election, no less – despite having already wasted tens of millions of taxpayer dollars and racking up repeated losses in court.

Michigan media outlets who have been covering this story have done an excellent job asking tough questions of the AG’s office about their decision-making around these Flint Water prosecutions.

Here are a few additional questions we believe should be asked and answered before Nessel’s team is allowed to continue to cash a blank check in their attempt to criminally prosecute individuals they see as political opponents on the eve of another election:

  • Did AG Nessel review or approve the statement blaming the judicial process, maligning judges, and vowing to continue this political persecution before it was released by her office?
  • The AG’s statement claimed “the courts have once again sided in favor of well-connected, wealthy individuals with political power and influence instead of the families and children of Flint.”  Is the Attorney General suggesting Judge Kelly or the Justices of the Michigan Supreme Court have been influenced in some way in these cases?  If so, what is her basis?
  • Is the Attorney General and her team suggesting that Judge Kelly or the Justices of the Michigan Supreme Court did not follow and properly apply the law?
  • In that same statement, the AG’s office claimed “these defendants have spared no expense to ensure that these cases were disposed of by judges based upon anything except the merits of the cases.”  What about the tens of millions of taxpayer dollars spent by the AG’s office. Are they willing to take responsibility for the cases being dismissed on procedural grounds because of continuous missteps by AG Nessel’s team? 
  • Regarding the defendants sparing no expense, is the Attorney General claiming that had the AG’s office spent even more taxpayer money on these cases, there would have been a different outcome? How is that possible since the AG’s losses are consistently the result of bungling the handling of evidence and other procedural missteps?
  • Exactly how much money has the Flint Water Prosecution Team, the AG’s Office, and Wayne County Prosecutor Worthy’s Office spent on the Flint Water-related prosecutions? (In July 2022, Beth LeBlanc at the Detroit News reported the AG’s office had spent nearly $16 million.) If the AG’s office plans to continue with the prosecutions, how much more money can the taxpayers expect to be spent?
  • In the AG’s statement, they claimed to “longed for the day when we would present the evidence against the defendants to a jury.” However, the Attorney General dismissed the previous charges filed under AG Bill Schuette and, to date, some defendants say they have yet to receive any evidence and don’t even know exactly why they have been charged.
  • You said it would cost tens of millions of dollars and take many months to deploy a taint team.  Did the AG’s office incorporate these cost estimates into its budget for 2022-2023?  Did the Flint Water Prosecution Team request these funds?  If the prosecution continues, how do you expect to pay for the taint team and comply with Judge Kelly’s order that one must be used?

Statement: AG’s Filing in People v. Agen Continues Pattern of Attempting to Deny Defendants’ Rights

This week, the Attorney General’s office filed a pleading that continues its pattern of persecution intent on denying the constitutional and due process rights of defendants in the Flint Water cases. A statement from Brian Lennon, Gov. Snyder’s legal counsel from Warner Norcross + Judd, is below:

This week’s filing in People v. Agen and the Attorney General’s corresponding press release is absurd and continues a pattern of persecution intent on denying the constitutional and due process rights of defendants in the Flint Water cases. 

The pleading and press release further highlight the lengths Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy will go to keep alive their fatally flawed and politically-motivated prosecution of Governor Rick Snyder and others from his administration. 

The Attorney General’s office has finally acknowledged that the Michigan Supreme Court’s unanimous June 28 decision ordered the dismissal of the indictments against former DHHS Director Nick Lyon and the others. But now, the prosecution asserts that “arrest warrants” issued after and specifically referencing the illegal and unlawfully obtained indictments are the documents upon which prosecutions can proceed. 

This is false, and either shows a lack of understanding of the judicial system or a blatant attempt to undermine it. The unanimous Michigan Supreme Court said absolutely nothing about arrest warrants initiating a criminal proceeding. The prosecution is now asking courts to engage in hocus pocus and magically convert arrest warrants into charging documents, ignoring the clear and unequivocal directive of the unanimous Michigan Supreme Court decision.

First-year law students know that an arrest warrant is not a charging document and that arrest warrants are satisfied when a criminal defendant appears in court pursuant to that warrant. That happened for Governor Snyder, Nick Lyon, and all the other defendants on January 14, 2021, when each was arraigned on unlawful and illegally-obtained indictments. No one has ever been arraigned on an arrest warrant, and the prosecution fails to provide a single instance when anyone, in Michigan or elsewhere, has ever been arraigned and prosecuted on an arrest warrant alone.    

Now, on the eve of the issuance of Judge Elizabeth Kelly’s order on the felony defendants’ motion to dismiss the indictments, SG Hammoud is asking the court to engage in a series of tortured, illegal, and illogical jurisprudential gymnastics to justify a decision clearly contrary to the unanimous Michigan Supreme Court’s decision. 

No other prosecuting entity in the state of Michigan, including the Genesee County Prosecutor and Prosecutor Worthy’s assistant prosecutors in Wayne County, has requested such relief from courts following the Supreme Court’s June 28 decision that a one-judge grand juror cannot issue indictments. Only the AG’s Flint Water Criminal Team has made such an audacious request. 

We should not be surprised that SG Hammoud and Prosecutor Worthy would continue to ignore the Michigan Supreme Court. They have ignored and completely failed to comply with Judge Kelly’s November 2021 order to establish a “taint team” to review, identify, and segregate attorney-client privileged communications, attorney work product, Governor Snyder’s executive privileged documents, and federal court-protected mediation confidential documents from the city of Detroit bankruptcy, commonly known as “the Grand Bargain.” 

It has been well documented that despite numerous warnings about the privileged nature of the documents they seized from their civil-law AG colleagues, the Hammoud-Worthy-led prosecution team completely disregarded each defendant’s constitutional and due process rights by reviewing and producing each defendant’s privileged attorney-client communications and attorney work product to every other defendant. 

The prosecution’s failure to establish a taint team or seek the appointment of a special master is unprecedented and indefensible. And despite being ordered by Judge Kelly months ago to get on with the establishment of a taint team, they instead continued to appeal that order until the Michigan Supreme Court recently dismissed the prosecution’s last application for leave to appeal the November 2021 taint team order. 

While the prosecution team has claimed that its failure to deploy a taint team will cost the Michigan taxpayers tens of millions of dollars and will take several years to complete, AG Nessel has not requested any funds from the legislature in her department’s budget to accomplish this court-required task to move the prosecutions along.  They still have 17 million documents to review and produce. And because of Judge Kelly’s November 2021 taint team order – and a similar ruling from the U.S. Bankruptcy Court regarding the Grand Bargain documents they admittedly produced in violation of that court’s orders – not a single document has been provided to the defense since 2021. 

Neither AG Nessel nor SG Hammoud appears to have any intention of complying with Michigan Supreme Court decisions in these cases, opting instead to keep these fatally flawed cases on life support until they have been completely used up as electioneering fodder.

Statement: Michigan Supreme Court Rejects AG’s Taint Team Appeal

The Michigan Supreme Court today rejected an application from the Flint Water Criminal Team seeking to reverse Judge Kelly’s taint team orders from November 2021. A statement from Gov. Snyder’s legal counsel from Warner Norcross + Judd is below:

Today, the Michigan Supreme Court issued another rebuke against the Flint Water Criminal Team and Michigan Attorney General’s office when it upheld the sanctity of attorney-client privilege for all citizens.

The Supreme Court rejected the Flint Water Criminal Team’s application seeking the reversal of Judge Kelly’s taint team orders from November 2021.

“We suspect this is the latest Supreme Court mandate the prosecution will ignore, but we can still hope that they finally realize the judicial system in America is strong because it protects people from persecution based on political ideologies,” said Brian Lennon, attorney for Gov. Rick Snyder.

When Solicitor General Hammoud-led prosecution team recklessly seized and reviewed tens of thousands of attorney-client privileged documents and attorney work product from the civil law side of the Attorney General’s office, they failed to establish even the most basic taint team protocols to segregate privileged materials from that which the prosecution can properly review. That fatal flaw in the Flint criminal cases ignored the most sacrosanct privilege in American jurisprudence: every citizen’s right to attorney-client privilege.

“Every citizen understands that prosecutors cannot review the communications between lawyers and their clients, nor can they review an attorney’s notes and work product,” Lennon said. “For some reason, this well-founded principle was ignored by the Flint Water Criminal Team, despite clear warnings from their civil-law AG colleagues in 2019, as well as by counsel for both Director Nick Lyon and the Snyder legal team. These criminal cases need to be dismissed because there is no way to recover from such an unethical and unconscionable violation of constitutional rights.”

Despite clear warnings from numerous legal professionals in the public and private sector, SG Hammoud plowed ahead and began producing Governor Snyder’s privileged documents, as well as court-protected city of Detroit mediation documents, to all nine criminal defendants. 

Since Judge Kelly’s November order instructing the Flint Water Criminal Team to follow proper procedures and establish a taint team, no protocol has been established. Additionally, not a single non-privileged document has been produced for any of the defendants in nearly a year.  Moreover, despite representations to several courts that establishing a taint team now would cost the taxpayers more than $30 million dollars, there is no line item in the AG’s 2023 fiscal year budget to account for this anticipated expenditure. 

SG Hammoud’s position has been to ignore Judge Kelly’s ruling, as well as the Michigan Supreme Court’s unanimous decision in the Peeler, Baird and Lyon cases, ordering the dismissal of unlawfully obtained indictments from the one-judge grand jury.

The Supreme Court today struck another blow today against the Attorney General’s handling of the Flint water cases when it rejected the prosecution’s application for leave seeking reconsideration of Emergency Manager Gerald Ambrose’s demand for a preliminary hearing.  Rather than following the directive of the Supreme Court to dismiss the unlawfully issued indictments in the Flint water cases, the prosecution appealed to the Supreme Court and has asked the county courts to convert improper indictments into a different type of charging document.

“The courts take their rulings very seriously. It’s time for the Attorney General’s Office and SG Hammoud to do the same and dismiss all cases brought by the Flint Water Criminal Team,” Lennon said. “This isn’t a game of chance where you can keep rolling the dice hoping for a better outcome.”

Snyder Legal Team Files Motion Regarding AG’s “Inaccurate and Misleading” Representations to U.S. Bankruptcy Court

The filing details “inaccurate and misleading” representations made by the Michigan Attorney General’s office to the U.S. Bankruptcy Court related to the AG’s so-called “conflict wall” in the Flint Water cases.

Documents recently received through the Freedom of Information Act call into question representations made by the Attorney General’s Office to the U.S. Bankruptcy Court about the AG’s “conflict wall,” which was constructed to separate the Flint Water criminal prosecution team from Attorney General Nessel, her Chief Deputy, and the Assistant Attorneys General who were representing Governor Snyder and the State of Michigan in the Flint Civil cases.  Contrary to representations made by AG Nessel’s Chief Legal Counsel to the U.S. Bankruptcy Court, both in pleadings and during a June 16, 2021, hearing, the so-called “conflict wall” was more like a sieve, with hundreds of meetings between Attorney General Nessel, who was representing Governor Snyder and others in the civil litigation, and Solicitor General Hammoud who was prosecuting Governor Snyder.

Emails recently obtained through FOIA establish that Assistant AGs on both sides of the “conflict wall” communicated substantively about the privileged documents SG Hammoud’s team seized from the custody of her colleagues on the opposite side of the conflict wall. After the June 16, 2021, hearing in U.S. Bankruptcy Court, AG Nessel herself approved of a revised protective order intended to cover the same Federal Court-protected mediation confidential documents at issue in Governor Snyder’s Motion for Sanctions and Limited Discovery. And despite warning SG Hammoud that she needed to correct the record with the U.S. Bankruptcy Court on the misrepresentations of AG Nessel’s Chief Legal Counsel, no one from the Attorney General’s Office has corrected the record regarding the “conflict wall.” Today’s pleading, if accepted by the U.S. Bankruptcy Court, establishes by any burden of proof, that the representations made by the Attorney General’s Office were inaccurate and misleading.

Statement: AG Attempts to Circumvent Michigan Supreme Court Ruling, Continue Political Witch Hunt

On Friday, the Michigan Attorney General’s office filed two motions in an attempt to get around a unanimous Michigan Supreme Court ruling and continue their political witch hunt in the Flint water criminal cases. A statement from Brian Lennon, Gov. Snyder’s legal counsel from Warner Norcross + Judd, is below:

Throughout this prosecution, SG Hammoud has shown a remarkable dexterity for missing the point. First it was her refusal to establish a taint team and her total disregard for the sacrosanct attorney-client privilege of Governor Snyder and all the other defendants. Now it’s a flawed reading of a unanimous decision by Michigan’s highest court. Indeed, a unanimous Supreme Court found that all the indictments she obtained are invalid, and specifically as to Director Lyon’s case, the Justices ordered that it be dismissed. How can the Genesee County courts simply convert invalid and illegally obtained indictments into valid complaints? What part of the word “dismissed” does she and Prosecutor Worthy refuse to understand? We look forward to responding to these ridiculous pleadings.  

And since the prosecution appears to acknowledge the continued jurisdiction of the Genesee County Courts, we will be asking Circuit Judge F. Kay Behm to rule on our Motion to Dismiss for Lack of Jurisdiction and Venue, which has been pending for over a year, and District Judge William Crawford to require affidavits from the prosecution regarding its unsupported claim that the prosecution team never looked at any privileged materials, which we know is false.

This latest frivolous motion by SG Hammoud and Prosecutor Worthy is simply a desperate attempt to keep the prosecution alive past the November election. If this latest filing was sincere, one would have expected to see a large expenditure for a taint team in Attorney General Nessel’s recently-passed budget. The prosecution has told every court – including the Michigan Supreme Court, the Michigan Court of Appeals, Judge Kelly, Judge Crawford, and a U.S. Bankruptcy Court Judge – that a taint team will cost the Michigan taxpayers $30 Million dollars to accomplish. The expenditure for a taint team is nowhere to be found in next years’ budget.

We call on AG Nessel to follow the Supreme Court’s decision. Dismiss the indictments with prejudice, quit wasting taxpayer money, and redirect those resources to the people of Flint.

Editorial: Michigan’s Banana Republic Prosecution

Originally featured in The Wall Street Journal on June 30, 2022.

The prosecution of political opponents is a feature of banana republics that increasingly infects the U.S. A case in point is the prosecution of former GOP Gov. Rick Snyder in the Flint water case, which a unanimous state Supreme Court declared invalid this week.

Democrats claimed the former Governor and his staff ignored Flint’s problem with lead-tainted water, never mind that the Obama Environmental Protection Agency knew about it and did nothing. Democratic Attorney General Dana Nessel ordered Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy to investigate the Flint fiasco.

In January 2021, Ms. Hammoud brought two misdemeanor charges against Mr. Snyder for willful neglect of duty, each punishable by up to a year in prison. Eight other public officials were indicted. All pleaded not guilty.

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Statement: Michigan Supreme Court Rules Indictments Against Gov. Rick Snyder and 7 Others Are Invalid

The Michigan Supreme Court ruled today that a judge had no authority to issue indictments in the Flint water criminal case. The charges against eight defendants including former Gov. Rick Snyder, Nancy Peeler, Rich Baird and Nick Lyon have been wiped out. A statement from Gov. Snyder’s legal counsel from Warner Norcross + Judd is below:

We applaud today’s decision from the Michigan Supreme Court, which leaves no doubt about how Attorney General Dana Nessel’s office egregiously mishandled these cases from the beginning. As the Michigan Supreme Court makes clear, these prosecutions of Governor Snyder and the other defendants were never about seeking justice for the citizens of Flint. Rather, Attorney General Nessel and her political appointee Solicitor General Fadwa Hammoud staged a self-interested, vindictive, wasteful, and politically motivated prosecution. The people of Michigan will recall how Solicitor General Hammoud took to the stage at every opportunity to grandstand, but they now see the truth from Michigan’s highest court of law. We will be moving immediately to dismiss all criminal charges against Governor Snyder based on today’s unequivocal and scathing Supreme Court ruling.

AP: Court says indictments invalid in Flint water scandal

Originally published in AP on June 28, 2022.

DETROIT (AP) — A judge had no authority to issue indictments in the Flint water scandal, the Michigan Supreme Court said Tuesday, wiping out charges against former Gov. Rick Snyder, his health director and seven other people.

It’s an astonishing defeat for Attorney General Dana Nessel, who took office in 2019, got rid of a special prosecutor and put together a new team to investigate whether crimes were committed when lead contaminated Flint’s water system in 2014-15.

State laws “authorize a judge to investigate, subpoena witnesses, and issue arrest warrants” as a one-person grand jury, the Supreme Court said.

“But they do not authorize the judge to issue indictments,” the court said in a 6-0 opinion.

In a money-saving move, Flint managers appointed by Snyder switched the city’s water source to the Flint River. State regulators said the river water didn’t need to be treated to reduce its corrosive qualities. That was a ruinous decision: Lead from old pipes flowed through the system for 18 months in the majority-Black city.

Flint Defendants: 1-Judge Grand Jury Bucks Separation Of Powers

Originally published in Gongwer on May 4, 2022.

The separation of powers doctrine and whether criminal defendants indicted by a single-judge grand jury have the right to a preliminary examination were two arguments that took center stage before the Michigan Supreme Court on Wednesday.

The arguments centered on several attorneys representing former state officials charged in the Flint water crisis criminal proceedings who have said their clients’ rights were violated following indictments in the matter issued early 2021.

Overall, attorneys for former Governor Rick Snyder, former Department of Health and Human Services Director Nick Lyon, DHHS subsection manager Nancy Peeler and top Snyder aide Richard Baird argued Wednesday that the grand jury process – one of several types of probable cause finding processes available to prosecutors – did not afford the defendants the right to a separate preliminary examination.

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