Michigan appeals court upholds Flint water crisis dismissals

• A Michigan appeals court panel upheld a lower court’s dismissal of charges against two defendants in the Flint water crisis 
• State prosecutors say they’ll appeal to the Michigan Supreme Court, which has already cast doubt on prosecutors’ cases 
• The ruling is the latest judicial rebuke of Michigan Attorney General Dana Nessel’s handling of the Flint case 

The Michigan Court of Appeals has affirmed a lower court’s dismissal of criminal charges against two Flint water crisis defendants, in the latest setback for the state’s Flint prosecution team.

Lower court judges last fall dismissed charges against nearly all Flint defendants, including former Gov. Rick Snyder, after the Michigan Supreme Court ruled in June that state prosecutors had improperly relied on a one-person grand jury to indict Flint defendants.

But a state prosecution team appointed by Michigan Attorney General Dana Nessel vows to again appeal the dismissals, arguing the cases should have been remanded for a preliminary examination, rather than dismissed.

Related:

• Flint water crisis charges dropped against former Michigan Gov. Rick Snyder
• State lawyers to appeal dismissals of Flint water crisis criminal charges
• Judge dismisses Flint water crisis charges against former Michigan officials

In orders filed in the court docket on Thursday, a three-judge panel led by Court of Appeals Presiding Judge Colleen A. O’Brien rejected the state’s appeal in the cases of former Michigan Department of Health and Human Services (MDHHS) Chief Medical Executive Eden Wells and former Flint Emergency Manager Darnell Earley. O’Brien wrote that “the questions to be reviewed are so unsubstantial as to need no argument or formal submission.”

Wells had faced nine counts of involuntary manslaughter and one count of willful neglect of duty, and Earley had faced three counts of misconduct in office.

A separate appeals court panel last month dismissed the Flint prosecution’s appeal pertaining to dismissed charges against former Snyder administration Health Director Nick Lyon. Presiding Judge Sima G. Patel wrote then that “this Court is unable to grant any relief where the circuit court implemented an explicit directive from the Supreme Court.”

In a statement Thursday, the state prosecution team said it is “not discouraged” by the dismissals and vowed to appeal to the Michigan Supreme Court.

“It has always been our understanding that this matter will be resolved by the Michigan Supreme Court,” the team wrote. “With that in mind, we will be appealing this decision.”

The dismissals are the latest blow to Nessel, who withdrew earlier Flint charges filed by her Republican predecessor, Bill Schuette, after she took office in 2019, and then relaunched the state’s investigation. The prosecutors named by Nessel — Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy — issued new charges in January 2021, sparking immediate backlash from defendants’ lawyers over prosecutors’ reliance on a one-person grand jury.

The Flint water crisis was triggered in 2014 when the city, under oversight by a state-appointed emergency manager, switched its water supply from Lake Huron to the Flint River without requiring corrosion control to keep lead from leaching from the city’s older water pipes. That decision — and the Snyder administration’s initial failure to heed residents’ complaints about foul and discolored tap water — caused lead contamination that coincided with two outbreaks of Legionnaires’ disease and 12 deaths.

Michigan is one of three states that still use a one-person grand jury, in which prosecutors present evidence in secret to a single judge, who then decides on charges. 

In the earlier, unanimous Supreme Court opinion, then-Chief Justice Bridget McCormack wrote that Michigan law allows judges "to investigate, subpoena witnesses, and issue arrest warrants,” but does "not authorize a judge to issue indictments.” Doing so, the high court wrote, left  defendants with no recourse to initially hear and challenge the evidence before their cases were sent to Circuit Court for trial.

In an interview Thursday with Bridge, Wells’ lawyer applauded the appeals court’s order. 

“We’re extremely pleased that the Court of Appeals decided not to give any extended consideration to the prosecution's arguments,” said attorney Jerold Lax.

The state is also appealing dismissed lower court charges against Snyder, former MDHHS employee Nancy Peeler; former Snyder aides Jarrod Agen and Richard Baird; and former Flint emergency manager Gerald Ambrose.

Lawyers in several of those cases, including Snyder’s, are also seeking dismissals.

Lyon’s attorney, John Bursch, said he expects the appeals court to reach the same conclusion in those cases. 

“At some point, this prosecution team just has to say, ‘this is enough’,” he said. “That the courts have told us repeatedly, we don't have a case and we need to let Mr. Lyon get back to living his life.”