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.

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Flint Water Legal Costs Continue to Soar for Taxpayers

The soaring costs associated with efforts to prosecute former Gov. Rick Snyder were highlighted by two major news announcements associated with the proceedings in January.

The state’s Administrative Board has approved legal fees for Snyder to reach $2.5 million by January 2023. Additional legal expenses for other former state employees facing charges could bring that total cost to taxpayers to $5 million by the end of 2022.

Snyder has been charged with two misdemeanors carrying $1,000 fines each, with the presumption of no jail time or probation.

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Questions for Governor Whitmer’s State of the State

Governor Gretchen Whitmer is scheduled to make her State of the State address on Wednesday and there are a number of topics we can expect to hear about. These include COVID-19 impacts on the economy, health and education systems, plans for the nearly $8 billion Michigan received from the federal infrastructure bill, and progress in Benton Harbor’s water crisis, among other hot topics.

But there’s one topic that most likely won’t be brought up: State Attorney General Dana Nessel’s continued missteps in wasting millions of tax dollars on politically motivated charges against former Governor Rick Snyder and eight others.

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1st Anniversary of Flint Water Charges Signals Long Fight Ahead

It’s been a long and expensive year since the filing of misdemeanor charges against former Gov. Rick Snyder.

Some very basic issues – where to hold the trial, what judge should hear the case, what evidence can be presented – are still unresolved.

And they may not be for many months.

“As we approach the anniversary of the charges being filed, it is clear that there is no end in sight,” said Jason Brown, a spokesman for the Snyder legal team. “That means, there is no limit to the millions of dollars in costs that are mounting on top of more than $30 million already spent by the taxpayers on this bungled and politically driven charade – that is real money diverted from the real needs of Michiganders who are in need of services to help their families and businesses.”

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Legal woes pile up for Attorney-General’s mishandling of Flint Water cases

The Attorney-General’s efforts to cover up the mishandling of privileged and confidential documents in the Flint water case should not be condoned by a Michigan judge, a defendant in the case says in a recent legal filing.

Judge Elizabeth Kelly is receiving feedback on her November ruling, known as a protective order, which said the state’s prosecutors must set up an independent team to review millions of documents seized by the state related to the controversy – documents that include attorney-client communications.

Judge Kelly made the ruling at the request of state employees charged with felony offenses relating to the Flint water controversy, who like Governor Snyder, brought this breach of due process rights to the court’s attention.

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A Political Prosecution in Michigan

The Flint lead-water indictments look worse all the time.

Originally featured in The Wall Street Journal on December 27, 2021.

Some politicians seem to want to lock up their opponents more than they do criminals. Consider the tainted prosecution of former Michigan GOP Gov. Rick Snyder and his associates over the city of Flint’s lead-water contamination.

A state judge last month ordered state Solicitor General Fadwa Hammoud to establish an independent “taint team” to review some 21 million documents her office seized to investigate Mr. Snyder and eight other public officials involving Flint. Many documents are protected by attorney-client privilege, so prosecutors and the grand jury should never have laid eyes on them.

Now Ms. Hammoud and assistant attorney general Christopher Kessel are protesting the judge’s order. They say hiring outside attorneys to exclude documents protected by attorney-client privilege would cost the state $48 million and take three years.

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Public health groups support Lyon against criminalizing public service

Four groups representing Michigan public health officials have filed motions with a Genessee County Circuit Court judge to allow them to file briefs in support of Nick Lyon, the former MDHHS Director facing manslaughter charges related to the Flint water crisis.

The Association of State and Territorial Health Officials, the Michigan Association for Local Public Health, the Council of State and Territorial Epidemiologists, and the Michigan Associations of Health Plans filed the motions, demonstrating wide recognition of the dangerous precedent these proceedings set for public officials.

The ASTHO said it filed the motion “because a fundamental issue before the Court is whether ASTHO’s members – public health officials – should face criminal charges and trial for their professional decisions.”

Lyon is facing charges for deaths tied to a Legionnaires disease outbreak in Flint during the water crisis in 2014 and 2015. He is one of six former and current city and state employees who have been charged by Attorney General Dana Nessel in an act of political retribution.

Judge orders protective order to block release of attorney-privileged documents

7th Judicial Circuit Court Judge Elizabeth Kelly issued a protective order on November 19th barring the Michigan AG’s office from reviewing or producing any seized documents until a taint team is established to review the discovery in the case against former Gov. Rick Snyder.

This ruling follows a motion by the Snyder defense team on October 12th asking for the protective order due to continued malfeasance by the Attorney General’s office in regards to proper procedures of discovery.

“This is a massive breach of attorney-client privilege,” stated Brian Lennon, an attorney for Snyder. “The prosecution has our entire legal defense strategy in their hands.”

Prior to the ruling, email evidence surfaced showing two assistant attorney’s general attempted to raise a red flag that improper procedures of discovery were being used, but those warnings were ignored.

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