Dana Nessel report defends failed Flint water case. Others unready to forgive

A report Tuesday from Attorney General Dana Nessel’s office defends its handling of the state’s failed Flint criminal prosecution
Nessel called the report ‘as thorough and complete an accounting as it’s possible” of the criminal investigation into the Flint water crisis
Some in Flint say the report offered little new information or closure

Michigan Attorney General Dana Nessel released a report Tuesday that defends her office’s handling of the Flint water crisis prosecution, blames its failure on the state Supreme Court and otherwise offers few new revelations.

Speaking to reporters, Nessel said her team took the correct approach when it used a one-person grand jury to bring charges against former Gov. Rick Snyder and eight others. She contended they couldn’t have predicted the court would deemed the long-used tactic unconstitutional.

“I don’t blame people … who worked on this case either as prosecutors or as investigators.” said Nessel, a Democrat in the final months of her second term.

“They did all the best that they possibly could, given the information they had at the time.”

Like the decade-old scandal that contaminated Flint’s drinking water supply with lead, the report is unlikely to end any finger-pointing or bitterness.

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Rather than shed new light, the report seemed to only deflect blame from Nessel and her team, Flint resident and activist Melissa Mays said.

“We want to know why, and she could offer us none of that,” Mays said. “All it was, ‘Not my fault.’”

The crisis began in 2014, when Flint switched its drinking water from the Detroit system to the Flint River in an order to save $5 million. The move was directed by an emergency manager Snyder had appointed to oversee city finances.

When Nessel took office in 2019, her predecessor, Republican Bill Schuette, had begun prosecutions and secured plea deals.

Nessel fired the special prosecutor appointed by Schuette and installed a new team, whose leaders deemed the cases flawed and began anew, securing indictments from a one-person grand jury.

By the time the court unanimously rejected that tactic, the statute of limitations for most charges had expired and the probe ended in 2023 with no trial.

Speaking to reporters, Nessel suggested the seven justices on the court may have been influenced by their relationships to Snyder.

Three were appointed by him, including his former chief legal counsel, Elizabeth Clement, but she recused herself from the vote.

“This report is not the justice the victims of the Flint water crisis deserve,” Nessel wrote. “Nor does it provide answers to every question. But it is the fullest measure of accountability I can offer to the people of Flint and those who cherish justice everywhere.”

Others disagreed.

“I scanned the section that had my name on it, and as you can imagine, I think it intentionally lacks facts or context,” said Nick Lyon, the former Michigan Department of Health and Human Services director who faced nine counts of involuntary manslaughter.

“It’s a restatement of a bunch of claims they made in the past that just were not properly investigated or substantiated in any way.”

Reached through a spokesperson, Schuette issued a statement saying that “too many families are still waiting for justice” in Flint.

“Sadly, for many, that justice is forever out of reach,” he said.

Several portions of the report were redacted, a move Nessel’s office said was required by a state law that prohibits the release of information exclusively presented to a one-person grand jury.

She urged lawmakers to overturn the law, saying transcripts from the case are “historical record” that should be made public.

Nessel campaigned for attorney general in 2018 criticizing Schuette’s handling of the case, telling Bridge at the time he was “an opportunist who has used the crisis to further his political ambitions via a series of politically charged show trials.”

When she was elected, Nessel dismissed Schuette’s prosecutor, Todd Flood, and installed Wayne County Prosecutor Kym Worthy and then-Solicitor General Fadwa Hammoud. Nessel herself was not involved, having set up a “conflict wall” to separate the state’s criminal case from the civil defense she led in response to class-action lawsuits over the water crisis.

Tuesday’s report revisits the reason for the dismissal: Two months into Nessel’s tenure, officials discovered 23 boxes of records the report alleges were not examined by Flood’s team.

Mays, the Flint resident, said many in the city trusted Flood and “didn’t want him and his team fired.”

The decision to restart the investigation left the Nessel-appointed team dangerously close to Michigan’s statute of limitations, which requires prosecutors to file charges within six years for most felonies, and 10 years for involuntary manslaughter and some other crimes.

After the team secured indictments in the case, defendants’ attorneys accused them of using evidence that may have included documents protected by attorney-client privilege.

In response, a judge ordered prosecutors to hire an independent “taint team” to weed out privileged items — a process that could take years and millions of dollars.

Tuesday’s report states that the prosecution team discussed early in their investigation whether to use a taint team. But it wasn’t required by law, and the high cost and time investment “weighed heavily” against doing so.

Snyder’s attorney, Brian Lennon, said there’s no defense for that decision.

“What do you mean you don’t have to do it?” he said. “You have to protect attorney-client privilege.”

The team’s final setback came when several Flint defendants argued the use of a one-person grand jury had violated their right to due process.

In a typical case, prosecutors publicly announce charges and present evidence at a pre-trial hearing, where the defense is allowed to argue its side. Michigan’s unique one-person grand jury process instead allowed prosecutors to present evidence in secret to a judge, who acted as a jury to hand down the indictments.

Several Flint defendants challenged the process, resulting in the Supreme Court’s 2022 ruling that Michigan law doesn’t allow a single grand juror to issue indictments.

The ruling prompted lower courts to dismiss all charges against the Flint defendants. By then, time had run out for prosecutors to re-file most charges.

In the end, no one was forced to stand trial for the disaster, though several low-level defendants reached plea deals.

More than a decade since the crisis began, Flint residents have only recently begun to receive payouts from more than $600 million in legal settlements from class-action lawsuits over the crisis.

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