The office of Michigan Attorney General Dana Nessel (D) announced Oct. 25 that a prosecution team, led by Solicitor General Fadwa Hammoud, plans to appeal Judge Elizabeth Kelly's Oct. 6 decision to dismiss criminal charges against seven former state officials indicted in connection with the Flint water crisis.
Judge Kelly dismissed the charges against former Michigan Dept. of Health and Human Services Director Nick Lyon, former MDHHS medical executive Eden Wells, former MDHHS employee Nancy Peeler, former Republican Governor Rick Snyder’s aides Jarrod Agen and Richard Baird, and former Flint emergency managers Gerald Ambrose and Darnell Earley. The ruling was not related to misdemeanor charges against former Governor Snyder, but those were also dropped in the separate case because Nessel and Hammoud pursued both matters using the "single grand juror" process. Single grand jurors, Kelly ruled, cannot under Michigan law be both prosecutor and jury.
“Because the one-person grand jury does not have the power to issue indictments,” Kelly explained in her dismissal of the charges, “the indictments issued in the felony Flint water cases were void ab initio [from the beginning]."
A spokesperson for the attorney general's office did not answer a question about pursuing new charges against the seven former officials, but said that the appeal is of Judge Kelly’s dismissal of the charges. She also would did not address the judge's ruling that those charges were void from the beginning of the legal process.
In a statement, attorneys for Lyon, one of the defendants, said any appeal on those grounds would be a useless gesture.
"This would not be a serious appeal," the statement said. "The Supreme Court’s ruling was a straightforward and logical reading of the statute governing one-person grand jury investigations. The indictment obtained against Director Lyon was without any statutory authority and, therefore, had to be dismissed, which is exactly what the circuit court did."
The statement further said that the Flint Water prosecution team says in its press release that the court proceedings up to this point have challenged only the process, not the merits. "That is incorrect," the statement from the law offices of Willey Chamberlain asserted. "On the eve of a ruling on the merits in June 2019, the prosecution dismissed the charges against Director Lyon because the case was 'so weak that it never even would have gotten to trial,' according to Attorney General Dana Nessel. The prosecution knows their case against Director Lyon is, and has been, without merit and contrary to law."
Nessel has not commented on why the single grand juror investigation process was used in these cases as it's previously only been used for public corruption or gang cases where local officials were suspected of not complying with the law. The use of it for a matter as well known as the Flint cases is a novel use of the tactic.
Lyon said in a statement, after the June decision by the Michigan Supreme Court, that it was a victory for public service in Michigan and state employees should not be prosecuted or demonized "for just doing their job. It is a great injustice to allow politicians—acting in their own interests—to sacrifice government servants who are performing their roles in good faith under difficult circumstances."