Detroit Free Press June 22, 2021
A Genesee County judge has upheld a secret tactic used in the Flint drinking water criminal investigation and rejected arguments that prosecutors violated defendants' due process rights.
To bring charges against former Gov. Rick Snyder and eight others for their roles in the crisis, the Michigan Attorney General's Flint water prosecution team used a one-person grand jury to investigate behind closed doors and file indictments that were unsealed in January.
The tactic came under legal review in one of the most high-profile political cases in years: the state’s prosecution of Michigan’s former governor and a slew of his former aides for their alleged criminal roles in the lead contamination of Flint’s drinking water supply starting in 2014 and deaths linked to an outbreak of Legionnaires' disease.
Several of the defendants challenged the one-person grand jury investigation in March, claiming they are in the dark about the charges against them and cannot mount a proper defense without being able to scrutinize the evidence against them.
But Genesee County Circuit Court Judge Elizabeth Kelly last week ruled that the defendants are not entitled to the pretrial evidentiary hearing they sought — known as a preliminary examination — because the one-person grand jury did not violate their due process rights.
Kelly concluded that one-person grand juries perform the same function as citizens' grand juries. Both investigate potential crimes and find probable cause to issue indictments, Kelly wrote in her order.
"This is precisely what has occurred in these cases and defendants have not made a showing that the one-person jury's indictments carry less weight than those issued by citizens' grand jury," Kelly wrote.
At least two defendants who challenged the one-person grand jury process will appeal Kelly's ruling, their lawyers told the Free Press on Monday.
Randall Levine, a lawyer representing Snyder's former top aide Richard Baird, said Kelly did not take into account the entirety of Michigan's one-person grand jury laws, specifically the parts that entitle Baird, who has pleaded not guilty to four felony charges in the Flint water case, to a preliminary exam.
“There are several aspects of the ruling with which we disagree," Levine said. "It has to do with statutory interpretation. Judge Kelly’s opinion failed to interpret the statute consistent with recognized rules of statutory construction.”
Nancy Peeler, an early childhood health section manager at the state health department, also will appeal Kelly's ruling, her lawyer, Harold Gurewitz, said. Peeler pleaded not guilty to two felony counts of misconduct in office and one misdemeanor count of willful neglect of duty.
Gurewitz said he intends to challenge the one-person grand juror's role as prosecutor during the investigation.
The Attorney General's office celebrated Kelly's ruling in a statement.
"These victories are important steps forward to deliver justice for the people of Flint," said Solicitor General Fadwa Hammoud, who is leading the Flint water prosecution team.
Michigan's one-person grand jury process involves the appointment of a single judge to review evidence out of public view and decide whether charges should be brought. In contrast to the way most criminal charges are brought, using a one-person grand jury alters how evidence is turned over to defense attorneys and delays their ability to cross-examine witnesses.
The Flint water prosecution team’s written request to appoint the one-person grand jury has not been made public. In previous statements and interviews, the attorney general’s office declined to say specifically why it sought a one-person grand jury. The office also could not say when it last used a one-person grand jury, explaining that the information is not tracked.
Snyder was not among the Flint defendants who challenged the one-person grand jury investigation used in the case. A spokesman for Snyder's legal team said it did not join the challenge because as Snyder is charged with two misdemeanors, he is not entitled to a preliminary exam. Snyder has pleaded not guilty to the charges.
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