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.
The defendants argued that such a hearing, used by state district court judges in criminal matters to determine probable cause and the sufficiency of evidence before binding a given case over for trial to the circuit courts, would have given them a chance to poke holes in the government’s evidence, parse discovery and impugn witness testimony. It would have also given their attorneys the chance to directly examine and cross-examine said witnesses in a public setting and may have allowed them an opportunity to motion for the dismissal of charges.
What they got instead, their attorneys argued, was a backdoor decision from a Genesee Circuit Court judge – from the same venue in which they are being tried – to issue indictments for misconduct in office and willful neglect of duty related to the Flint drinking water disaster.
That action not only violated their due process rights, but some of the attorneys argued that it also violated the separation of powers doctrine in the Michigan Constitution. In essence, the grand juror engaged in a judicial inquiry (the review of evidence presented by the department to determine probable cause), two attorneys said, while also executing charging authority (an executive branch function bestowed onto prosecutors and in this case the attorney general) when the judge signed the indictments.
Some said that the decision to use a single-judge grand jury was done to give the case more credibility, as the department would walk into proceedings linked arm-in-arm with a judge who had already determined cause for felony charges against the group.
Others said it was obvious to them that the department’s preference to use a grand jury process was an example of the government not just cutting corners to push forward a weak case but amounted to sawing those corners clean off and eschewing the normal criminal process.
Thus, the attorneys asked justices to rule against the use of one-person grand juries as an unconstitutional practice.
The separation of powers arguments proffered by Lyon attorney John Bursch and Snyder attorney Devin Schindler appeared to resonate with several of the high court’s justices. Chief Justice Bridget McCormack at one point said she found Mr. Bursch’s arguments “compelling.”
“This court has held time and again in (previous) cases … that the power to charge a defendant and what charge should be brought is an executive power that vests exclusively in the prosecutor,” Mr. Bursch said. “The fact that the prosecution agrees with the judge’s charging decision does not solve that separation of powers problem. If the Legislature tried to delegate the judicial power to a prosecutor and said that the prosecutor could try a case, the constitutional problem would not be alleviated if a judge happened to agree that the prosecutor could put on a robe and try the case. The prosecution here gives you no reason to overturn that long line of cases, and the cases that they cite are in opposite. None of them involve the question presented here.”
While Peeler attorney Harold Gurewitz and Baird attorney Anastae Markou argued in the lane that their clients should have been afforded a separate examination by right, both said they agreed with their colleagues’ arguments on branch powers.
Officials with the Department of Attorney General have argued their decision to indict the defendants with a single-judge grand jury was in line with the various charging tools made available to them by the Legislature. Thus, the issue was not a constitutional one but rather an issue of statutory interpretation, as statute only mentions a preliminary examination as one of several possible avenues for a prosecutor or judge to determine probable cause.
Assistant Attorney General Christopher Kessel doubled down on those arguments before the high court on Wednesday, as well, adding that it was the department’s reading of statute that a grand jury – whether that be a single judge, three judges or a group of citizens – performs the same function of a district court judge holding a preliminary examination. Since both entities determine probable cause, such a hearing would not have been necessary and would have been redundant.
However, Mr. Kessel’s arguments were met with some skepticism from several justices as preliminary examinations were a commonplace right for defendants in criminal proceedings. Chief among them was Ms. McCormack, Justice David Viviano, Justice Megan Cavanagh and Justice Richard Bernstein. While Justice Brian Zahra and Justice Elizabeth Welch asked a few questions, the high court’s chief justice, Mr. Viviano and Mr. Bernstein dominated the session. Justice Elizabeth Clement did not participate due to her previous role as counsel for Mr. Snyder.
Mr. Kessel also did not get far into his opening arguments in each case before justices began inundating him with questions.
When the assistant attorney general (and Attorney General Dana Nessel‘s former law partner) was responding to Mr. Gurewitz’s arguments, Ms. McCormack pressed Mr. Kessel on grand juries, district court judges and their apparently shared functions in finding probable cause. The chief justice also highlighted that one process happens behind closed doors and the other happens in public.
Ms. McCormack similarly noted that a citizen grand jury is a group of one’s peers that stands between the government and the accused, but here, the department had the government standing between the department and the accused.
Mr. Kessel again said that each made probable cause findings which were the very essence of due process, even if they came from different sources. He also noted that precedent shows judges had a wide swath of charging authority dating back to medieval times and in Michigan up until 1963, when the Michigan Constitution was ratified.
In response to similar questioning on charging authority of judges from Mr. Viviano, Mr. Kessel said that the legislative intent in statute regarding the grand jury process was not historically clear, which left it up to interpretation on whether such authority was available to them.
That said, records regarding the construction of the Constitution drafted in the 1960s show the framers indeed had that discussion and were poised to remove language regarding powers of conservators of the peace. They eventually chose to leave that portion under the advisement of a Wayne County judge, Mr. Kessel said, who had argued that the loss of that language would throw the one-person grandy jury process out, as well.
“So, if our entire judicial system is based on following the Constitution, regardless of our personal feelings … what is crystal clear is that our framers decided to keep this language in our Constitution for the expressed purpose of allowing the one-person grand jury to remain,” Mr. Kessel said.
Both Ms. Cavanagh and Ms. McCormack as well as other attorneys noted that conservators of the peace have not had that power for hundreds of years. Mr. Bursch also quipped that there was no need to parse the duties of knights or sheriffs in the days of yore because doing so had no application to the judiciary in 2022.
Mr. Bernstein asked Mr. Kessel if they decide to support his view, what the effect would be on normal criminal proceedings rather than high-level government criminal proceedings like the cases before them now.
To that, Mr. Kessel said everyday citizens could potentially be affected but did not detail why. However, it was noted during oral arguments that such grand juries have proliferated in Genesee County since the tetrad were indicted in 2021.
The assistant attorney general did say that grand juries are used in many other criminal cases aside from corruption or neglect of duty trials – primarily seen in violent crime cases, and in his experience, in Wayne County.
Mr. Kessel also said that while there could be ripples felt from this decision, it would not undermine the right to a preliminary examination for defendants, nor would it undermine their right to findings of probable cause before trial.
“The one-person grand jury investigation is in some ways more organic and, I don’t know what a better way to say this is, almost a more wholesome way of looking at a matter,” he said. “What happens in a one-person grand jury is … a person conducts his or her own investigation. The prosecution can be involved or not. The one-person grand jury then makes his or her own decisions completely, not just based upon the questions the prosecutor wants to ask or not. The reason a one-person grand jury is so effective is that, here, you have a judge who can sit and ask his or her own questions.”
In this case, some of the defendants who were charged in the previous investigation led by then-Attorney General Bill Schuette’s team were not charged by the one-person grand jury. Mr. Kessel said that was because the one-person grand jury took a more holistic approach to the investigation of the facts.
“So, when you talk about fairness, or what could potentially happen to the average person, what I think is, the average person probably wouldn’t think too much about this. But to the extent that they would, they would feel comfortable understanding that a judge, at the end of the day, is the one making the probable cause determination,” he said. “And that it is our Constitution that allows for that finding to be made. I understand on some level, your honors, that it may seem odd that a traditionally executive power is being exercised by a member of the judicial branch. And I take issue with this whole idea of politicizing of this case or dodging politics. Clearly no one in this office has dodged any sort of political ramifications for this case.”