Nessel's office officially ends Flint water prosecutions without any criminal convictions

Lansing — Attorney General Dana Nessel's office is ending its pursuit of criminal prosecutions over the Flint water crisis after seven years of no convictions, a decision that came Tuesday after the Michigan Supreme Court rejected an attempt to revive charges against Republican former Gov. Rick Snyder.

The Flint prosecution team of the Democratic attorney general — led by Chief Deputy Attorney General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy — said the Flint water cases are now "closed." Snyder, whose administration appointed the city managers who oversaw Flint's change of water sources and the subsequent lead contamination, said he was encouraged by the Supreme Court decision and vowed to fight against future "political persecutions."

Hammoud and Worthy said Tuesday they will release a "full and thorough report" on the office's prosecutorial efforts in 2024. It's unclear what can be made public since Hammoud and Worthy's use of a one-judge grand jury puts strict limits on what evidence can be released from the investigation.

"Our disappointment in the Michigan Supreme Court is exceeded only by our sorrow for the people of Flint," Hammoud and Worthy said in a statement.

The Supreme Court's decisions in the case are "heartbreaking" and have been based on procedural flaws and not on the actual merits of the prosecution, the prosecution team said.

“If a jury decided that the defendants were not guilty of the charged offenses, so be it," the team's statement said. "To deny the opportunity to present the evidence and to let the victims tell their story is truly heartbreaking."

The prosecution of state and Flint officials began in 2016 under then-Republican Attorney General Bill Schuette, who was criticized for politicizing the Flint water crisis during his failed 2018 campaign for governor. Nessel's office took over the cases in 2019 and unsuccessfully pursued criminal charges against Snyder, two of his top aides and other members of his administration.

Snyder said Tuesday he planned to work toward ending "political persecutions" by electing prosecutors with a "moral compass."

"I wish this dismissal would represent the end of political persecutions in Michigan forever," Snyder said in a statement. "Unfortunately, the only way to end political persecutions would require electing attorney generals and prosecutors who believe in facts, have a moral compass, and act with civility."

The two-term governor's statement did not name the prosecutors he was criticizing.

Flint resident Melissa Mays said she was "infuriated and disgusted" with the way the prosecution had unfolded over the past few years. Mays argued the cases went sideways as soon as Nessel's office moved to dismiss prior charges by Schuette's appointed special prosecutor, Todd Flood, in 2019 in order to restart the investigation, despite concerns from residents about the dismissals.

"Decisions made about us in Flint without us always lead to disaster," said Mays Tuesday, before adding some harsh words for state leaders.

"As long as you’re wealthy, White or a government official, accountability doesn’t matter. There’s no justice for people who don’t look like them.”

Marc Edwards, the Virginia Tech water expert who helped discover the city’s lead-contaminated water, also expressed disappointment Tuesday with the case — from the dismissal of charges pursued by Schuette's team in June 2019 to Nessel's team re-issuing of charges in January 2021.

"First, they let the true criminals off the hook, then they charged innocent people with horrible crimes, and after wasting tens of millions of dollars, everyone is now justifiably frustrated," Edwards said. "Perhaps it is a fitting ending to this tragic tale of government failure and incompetence."

Justices reject Snyder appeal

In a short order Tuesday, the Michigan Supreme Court denied the request by Nessel's office to appeal last year's dismissal of Snyder's case, saying it was "not persuaded that the question presented should be reviewed by the court."

The order echoes ones issued in September denying leave to appeal in seven other Flint water cases involving former Snyder administration officials and the emergency managers who governed Flint in 2014 and 2015 while the city temporarily used Flint River water as its drinking water source. A failure to add corrosion-controlling chemicals at the Flint water treatment plant caused toxic lead to leach from water pipelines and get into the city's drinking water supply.

More:Flint water meets lead standards for sixth straight year, state finds

More:Detroit News coverage of the Flint water crisis

The most recent Supreme Court denials come more than year after the high court unanimously ruled last summer that the one-judge grand jury who decided on the charges against nine state and city officials was not authorized under law to indict those same individuals. The ruling upended charges against the nine, who were all indicted by the same one-judge grand jury.

In the majority opinion, then Chief Justice Bridget McCormack referred to the attorney general office's use of a one-judge grand jury to present evidence as a "Star Chamber comeback," a reference to a centuries-old, secretive court abused by high-ranking officials in the Middle Ages.

"The one-man grand jury then issued charges," McCormack wrote in June 2022. "To this day, the defendants do not know what evidence the prosecution presented to convince the grand jury (i.e., juror) to charge them."

Justice Richard Bernstein wrote in a concurrence that the court recognized the effect the decision would have on Flint residents but said it was "paramount" to use proper procedure.

But Hammoud and Worthy still tried to pursue charges against the nine individuals over the past year, arguing there was a gray area in the June 2022 Supreme Court decision that created an avenue for prosecution.

The high court's denials in September and on Tuesday put to rest those efforts by Nessel's prosecutors.

Effort to release evidence

Hammoud and Worthy said they would work with lawmakers to change the state's grand jury law to allow for the release of evidence that the law requires to remain under seal. Separate from a release of evidence, the prosecution team said it intended to release a report in 2024 regarding the prosecution decisions they made.

Flint Mayor Sheldon Neeley, in a statement released by Nessel's office, expressed frustration the evidence in the cases has never been heard outside of preliminary examinations conducted under Schuette.

"The one-man grand jury has been upheld against plaintiffs from under-resourced backgrounds, while Snyder has been allowed to evade justice based on a technicality thanks to a well-resourced, taxpayer-funded legal defense," Neeley said in the statement. "The standard of justice has not been balanced.” 

The state of Michigan has spent at least $60 million on legal fees alone so far on seven years of civil and criminal cases related to the Flint water crisis. That total doesn't include the $47 million ordered for lawyers leading the civil suit against the state, the yet-to-be-determined attorney fees owed to Snyder for the disclosure of protected documents and about a year of yet-to-be-tallied expenses from Nessel's office.

While the prosecution produced a few plea deals under Schuette, there have been no felony convictions secured in relation to the Flint water crisis over the past several years.

Hammoud and Worthy dismissed Schuette's cases in June 2019 and restarted the investigation from scratch, citing a desire to bring the investigation and prosecution in-house. But Hammoud and Worthy soon discovered many employees in the attorney general's office were "conflicted out" because of prior involvement with the civil case, and they ended up using several contract attorneys in their prosecution efforts.

In January 2021, Hammoud and Worthy announced a one-judge grand jury had authorized charges against nine state and city officials, including Snyder, Snyder confidant Rich Baird, former state health department director Nick Lyon and former Chief Medical Executive Eden Wells. Lyon and Wells faced nine involuntary manslaughter charges each. Flood didn't file charges against Baird and Snyder.

Those cases never proceeded past the indictment, instead encountering challenges to the one-judge grand jury system used in the cases and a challenge to prosecutors' unearthing of privileged documents that were protected from disclosure in criminal cases. A federal bankruptcy judge ruled the prosecution team had been tainted by exposure to the protected documents.

In a Tuesday statement, Lyon's legal team said the court's decisions in his case and others were a "victory for public service in Michigan."

"State employees should not be prosecuted or demonized for doing their job," the statement said. "It is a great injustice to allow politicians — acting in their own interests — to sacrifice government servants who are performing their roles in good faith under difficult circumstances."

eleblanc@detroitnews.com