Court hears grand jury challenge in Flint water cases

The Michigan Supreme Court has heard arguments that could wipe out charges against former Gov. Rick Snyder and eight others in the Flint water scandal

DETROIT — Michigan’s Supreme Court on Wednesday heard arguments that could wipe out charges against former Gov. Rick Snyder and eight others in the Flint water scandal, as attorneys challenged a century-old method rarely used to investigate on crimes and file indictments.

It is the most significant defense attack in the 16 months since Snyder and others were indicted by Judge David Newblatt, who served as a one-person grand jury in Genesee County. with evidence presented privately by the Attorney General’s office.

People accused of crimes in Michigan are generally entitled to a hearing to argue that there is not enough evidence to send a case to trial. But the single grand jury process does not allow this: if a judge decides to indict, the case goes directly to the trial court.

John Bursch, attorney for former state health director Nick Lyon, said the constitution’s separation of powers is violated when a member of the judiciary decides who gets charged.

“Because a judicial indictment is not just an oxymoron but a structural error, the only appropriate remedy is dismissal. … Judges are umpires who call balls and strikes,” Bursch said, quoting US Chief Justice John Roberts. “They’re not there to throw the ball or swing the bat, because that changes their role.”

Chief Justice Bridget McCormack seemed most troubled by the one-person grand jury, which was established in 1917 but has rarely been used in recent years, mostly in Genesee and Wayne counties. She described Bursch’s arguments as “compelling”.

“If the judge is just investigating, I don’t hear Mr. Lyon complaining about that,” McCormack said. “It’s when the judge also has to make a charging decision, which is an executive decision, that the constitutional issues arise, aren’t they?”

Nine people, including Snyder, are charged with various crimes related to the disastrous 2014 decision to transfer Flint’s water supply to the Flint River without treating the water to reduce corrosion. As a result, the lead contaminated the system for over a year.

Snyder faces misdemeanors, not felonies, but the indictment came from Newblatt.

Judge Richard Bernstein questioned whether the attorney general’s office, in such high-profile cases, should do anything to prevent any perception “that the government is taking shortcuts.”

Assistant Attorney General Chris Kessel said those charged with crimes do not have the right to choose the process. He said the one-person grand jury was hinted at by Wayne County District Attorney Kym Worthy as the way forward.

The method requires witnesses to testify in secret or face the consequences.

“It was handled properly. … If the legislature wants to create a limiting principle or it wants to try to take away the one-person grand jury, that’s a problem for the legislature,” Kessel said.

Genesee County District Attorney David Leyton has used it in some violent crimes in the Flint area. He said it protects witnesses who fear retaliation if they were to testify in court at a probable cause hearing.

“We can at least get the information we need for billing purposes,” Leyton said.

Judge Elizabeth Clement will not participate because she worked as Snyder’s lawyer before joining the court.


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