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.

Continue reading “Editorial: Michigan’s Banana Republic Prosecution”

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.

Continue reading “Flint Defendants: 1-Judge Grand Jury Bucks Separation Of Powers”

Statement: May 4 Michigan Supreme Court Hearings

The Michigan Supreme Court heard arguments today about the right of Flint criminal case defendants Nancy Peeler, Rich Baird and Nick Lyon to have preliminary examinations in their cases, and the constitutionality of the one-person grand jury. Legal counsel for Gov. Rick Snyder filed an amicus brief and spoke during oral arguments. A statement from Gov. Snyder’s legal counsel from Warner Norcross + Judd is below:

We appreciate the Michigan Supreme Court’s consideration today. We believe the Attorney General’s Office’s handling of these cases raises very significant due process and constitutional questions that could impact all Michiganders. We look forward to the court’s decision.

You can read more about the hearings in the Associated Press here.

Statement: Court of Appeals Denies AG’s Motion on Taint Team

A statement from Brian Lennon, Gov. Rick Snyder’s legal counsel from Warner Norcross + Judd.

We applaud the decision of the Michigan Court of Appeals denying the prosecution cover for its breathtaking violation of due process rights of all the Flint Water defendants.

Either stunning incompetence or the blind political motivation to get a conviction by hook or by crook, led the prosecution to completely ignore screening for privileged materials even though members of their own team were raising red flags. Then, when ordered to stop reviewing and disclosing privileged materials, the prosecution had the gall to complain that it will take too much time and cost too much money.

When the prosecution seized thousands of privileged documents from the files of Governor Snyder’s legal counsel and then failed to implement or offer any solution for preventing an invasion of Governor Snyder’s or the other defendants’ legal privileges, it is far from an abuse of discretion for the circuit court to impose a reasonable solution.  As the prosecution itself admitted, once privileged documents are reviewed by the prosecution, “the bell cannot be unrung.”  (People’s Mot for Recons 13.)

The use of an independent taint team ordered by Judge Kelly in November is reasonable, especially when the relevant but privileged documents were already reviewed, identified on privilege logs provided to the Todd Flood-led Office of Special Counsel, and properly protected by Assistant Attorneys General on the opposite side of the Attorney General’s so-called “conflict wall.”  The taxpayers have already paid for this process once.  When SC Hammoud and her team chose to execute search warrants on the other side of the conflict wall and seized Governor Snyder’s attorney-client privileged communications with his lawyers and his lawyers’ work product, among other records they should never have reviewed, they were obligated to employ some type of screening method.

The prosecution complains that the relief ordered by Judge Kelly is unprecedented, but the only thing unprecedented is the prosecution’s obstinate refusal to take even the most basic step to protect the legal and constitutional rights of defendants. This politically motivated philosophy of winning a  case by any means and at any cost should send chills down the spines of every resident of Michigan, and particularly government employees.

Taint teams are so well-recognized as an essential method for protecting a defendants’ privilege that the U.S. Department of Justice treats it as standard practice when privileges are at risk.  Legions of courts have recognized this as a valid method of protecting privilege, and some have even questioned whether it is protective enough.

The prosecution’s other argument—that the review process will be too burdensome—has no basis in reality.  To start, the actual orders entered by the Circuit Court do not dictate how many of the documents in the prosecution’s possession must be reviewed or how—it says nothing about what the review process would be.  Because the prosecution has refused to comply with Judge Kelly’s November order, the decisions of what documents would need review and how exactly to screen them have yet to be made.  This is stunning, particularly when the prosecution has hired an experienced outside e-discovery vendor to assist with this process.

Moreover, the prosecution’s speculations about what the review would entail presumes a process that ignores basic e-discovery methods and technology and conjures an astronomical project cost that defies simple math.  This tactic of over-inflating their burden in an effort to avoid necessary discovery tasks has been roundly condemned by other courts.

SG Hammoud and her team need to hire a taint team to get on with this privilege review forthwith.  They have delayed even identifying a taint team or creating a review protocol for far too long.  Alternatively, and to save the taxpayers tens of millions of dollars on this fatally flawed prosecution, she should dismiss the charges against Governor Snyder and all the defendants whose due process rights and constitutional protections have been violated.

Editorial: End the Flint witch hunt

Originally featured in The Detroit News on March 19, 2022.

It’s time to end the partisan prosecution of former Republican Gov. Rick Snyder and members of his administration over their handling of the Flint water crisis. Attorney General Dana Nessel has dragged out and botched a case that increasingly gives the appearance that it’s politically motivated.

Nessel, a Democrat, and her office have mishandled multiple aspects of the proceedings, including sensitive attorney-client privileged documents.

Nessel last year charged Snyder with two counts of willful neglect of duty, a misdemeanor. The attorney general is trying to make the case the former governor was negligent in his response to Flint’s lead contamination because his administration approved the water source switch to the Flint River from Detroit’s regional water authority.

Continue reading “Editorial: End the Flint witch hunt”