Nessel's office to judge: Ignore Supreme Court's order to dismiss Flint defendant's charges
Following a Tuesday defeat in the Michigan Supreme Court, Attorney General Dana Nessel's office on Friday sought to lessen the effects of the high court order on its Flint water prosecution by asking a lower court to maintain the validity of the charges instead of granting the nine defendants an outright dismissal.
In the case of at least one defendant, the request is akin to asking the lower court to ignore the Supreme Court's order to dismiss the case.
Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy filed nine motions in Genesee County district and circuit courts Friday seeking preliminary examinations for those charged with felonies and permission to proceed through a formal complaint in the cases of those charged with misdemeanors.
"The opinion issued by the court outlined new rules regarding the process related to Michigan’s one-man grand jury statute and these motions comply with those rules," Hammoud said in a statement. "We are confident that the evidence in these cases supports the charges and look forward to proving that in court.”
But the Supreme Court, in the case of former state health director Nick Lyon, didn't just order a preliminary examination. The justices said a lower court shouldn't have denied Lyon's motion to dismiss his case and ordered the lower court to conduct proceedings "consistent with this opinion."
Lyon's lawyer Chip Chamberlain on Friday pushed back on Hammoud's effort to ignore a high court order in his client's case.
"These motions are ridiculous and we have every intention of opposing them," Chamberlain said. "The Supreme Court made it very clear Mr. Lyon’s case is supposed to be dismissed.”
Gov. Rick Snyder's lawyer Brian Lennon also fired back Friday night, criticizing Hammoud's ongoing efforts to prosecute the case and claiming it was part of an effort to keep the case "alive past the November election."
"How can the Genesee County courts simply convert invalid and illegally obtained indictments into valid complaints?" Lennon said. "What part of the word 'dismissed' does she and Prosecutor Worthy refuse to understand?"
The Friday motions come four days after the Michigan Supreme Court ruled 6-0 that charges against Lyon should be dismissed because Hammoud used a one-judge grand jury to indict him. The court said the one-judge grand jury law allows judges to issue investigative subpoenas or arrest warrants but it does not permit judges to issue indictments.
In two other cases — involving former state employee Nancy Peeler and Snyder's former adviser Richard Baird — the high court ruled Peeler and Baird were entitled to preliminary examinations after being indicted by the one-judge grand jury.
While the high court's referral for dismissal applied only to Lyon, other defendants, including Snyder, said they would also apply for dismissal in the lower courts based on the reasoning used in the Supreme Court opinion in Lyon's case.
The Michigan Supreme Court decision Tuesday is expected to lead to the dismissal of charges against all nine of the defendants involved in the case. But Hammoud in her filings Friday argued otherwise, seeking to keep charges against the defendants alive at the district court level.
"The court’s holding was limited to the conclusion that a one-person grand jury lacks authority to charge by formal indictment, which would not require a preliminary examination," Hammoud argued in a filing seeking a preliminary examination for ex-Snyder chief of staff Jarrod Agen, who was charged with perjury during an investigative subpoena.
Instead, justices argued that the case should proceed as if it were a "formal complaint," which would require a preliminary examination, the filing said.
Requests for preliminary examinations were filed Friday for seven defendants facing felony charges: Baird; Peeler; Lyon; Agen; former emergency managers Gerald Ambrose and Darnell Earley; and former chief medical executive Eden Wells.
For those charged with a misdemeanor, which don't usually require preliminary examinations, Hammoud asked the court to treat the indictments as a formal complaint and then proceed with the case like any other misdemeanor. Those named in the misdemeanor filings are Snyder and former Flint public works director Howard Croft.
"...this court should construe the charging document in this case as a complaint so that the matter may 'proceed . . . in like manner as upon formal complaint,'" Hammoud wrote in Croft's case.
When Hammoud took over the Flint water prosecution in 2019, she dismissed charges filed by Nessel's predecessor, Attorney General Bill Schuette, and restarted the case from scratch. She issued new rounds of charges, using a one-judge grand jury, against nine state and local officials in January 2021.
By seeking on Friday to keep the cases alive in district court, Hammoud avoids outright dismissals of the cases and the resulting headache of having to file a third round of charges against the defendants.
Experts have said reauthorizing charges against some of the defendants may be difficult because of the length of time that's passed since the 2014 switch to Flint River Water and the later actions that led to the charges.
In Michigan, most crimes carry a statute of limitations that bars prosecution after six years has elapsed since the alleged offense. The statute of limitations for felonies such as manslaughter — which Lyon and Wells face under the 2021 charges — is 10 years.
It's likely that those whose charges appear to date to 2015 and early 2016 and fall under the six-year time limit — such as Snyder, Peeler, Earley, Croft and Ambrose — will attempt to block the reauthorization of charges on the argument that the statute of limitations has run out.