Supreme Court: Nessel ‘cut corners’ in using one-man grand jury to secure Flint Water Crisis indictments

The Michigan Supreme Court on Tuesday delivered another setback to the Flint Water Crisis prosecution, finding that the one-man grand juries used to obtain indictments were an improper denial of due process.

Attorney General Dana Nessel has yet to deliver a conviction in the Flint Water Crisis since taking office in 2019. The ruling makes it unlikely one will occur during her term.

The fallout from the decision is massive, The Detroit News reported:

The Flint charges overturned by the Supreme Court’s decision include nine manslaughter charges against (former state health director Nick) Lyon; two counts of willful neglect of duty against Republican former Gov. Rick Snyder; charges of perjury, misconduct in office, obstruction of justice and extortion against Snyder adviser Richard Baird; and a charge of perjury against Snyder chief of staff Jarrod Agen.

Additional charges included nine counts of manslaughter, misconduct in office and willful neglect of duty against former state chief medical executive Dr. Eden Wells; three counts of misconduct in office against Flint emergency manager Darnell Earley; four counts of misconduct in office against emergency manager Gerald Ambrose; two counts of willful neglect of duty against former Flint Public Works Director Howard Croft; and two counts of misconduct in office and willful neglect of duty against Nancy Peeler, the state’s director of maternal, infant and early childhood home visits.

One Supreme Court Justice blasted the one-man jury process, a secretive tactic Nessel chose to employ in securing the indictments, though it is rarely used in Michigan.

“The prosecution cannot cut corners — here, by not allowing defendants a preliminary examination as statutorily guaranteed — in order to prosecute defendants more efficiently,” Justice Richard Bernstein wrote in a concurring opinion, as quoted by The News. “The criminal prosecutions provide historical context for this consequential moment in history, and future generations will look to the record as a critical and impartial answer in determining what happened in Flint.”

In March, a Michigan Court of Appeals panel ruled that Nessel had to create a “taint team” to review documents for attorney-client privilege before the prosecutors get them. That ruling, and the compliance work required, could set the investigation back two years — at a cost of $37 million — Nessel said.

Nessel decided in 2019 to drop the investigation started by her predecessor, Republican Bill Schuette. Charges were not presented again until 2021, and have faced several setbacks since. The Guardian reported in January that Nessel disbanded a team that had been building a racketeering case against a group involved with a bond deal that residents and experts say sparked the health disaster. The bond gave Flint the means to create its own water system in 2014, a time when the city was under emergency management.

The switch from Detroit’s water system to the Flint River resulted in water going out untreated. The event now called the Flint Water Crisis followed from this switch, resulting in a spike in bacteria levels and lead amounts 25 times the amount considered actionable by the Environmental Protection Agency. Ultimately twelve deaths were attributed to an outbreak of Legionnaires’ disease.

When last seen in the pages of CapCon, Nessel said there should be “a drag queen in every school.”

Nessel’s term ends Jan. 1. She is running for reelection in November against Republican challenger Matt DePerno.