When new state Attorney General Dana Nessel announced major changes to the way her office handles the criminal investigations into the Flint, Michigan, water crisis in January, she told reporters that “This department has spent millions of dollars on these cases, and our state residents deserve assurance that these cases are handled properly.”
But with the surprise discovery of boxes filled with 20 million documents; a former special prosecutor who was either fired or resigned for health reasons (no one knows for sure); the need for interoffice warrants to obtain materials; and members of the attorney general’s staff submitting a filing in May accusing other staff members of making “several incorrect statements,” it’s easy to wonder if the cases are being handled at all.
Meanwhile, the judge in the criminal case against Nick Lyon, the former director of the state’s Department of Health and Human Services, has said he will rule this month whether or not to quash the felony charges against him. Lyon is one of 15 former administration officials under then-Gov. Rick Snyder who were originally charged by former Attorney General Bill Schuette in what people from both parties said was a “political stunt” designed to boost Schuette’s failed 2018 bid for the governor’s office.
Some of the problems with the criminal cases may in fact be related to how and why they were originally pursued. Kelly Rossman-McKinney, a spokesperson for Attorney General Nessel, said that “in order to preserve the integrity of the investigation,” she was unable to answer Daily Kos’ question about whether the trove of documents may have been lost in the first place because at least some members of the original prosecution team weren’t taking proper care of collected evidence.
Past negligence is at least one possible explanation for the firing of former special prosecutor Todd Flood, an outside attorney who was originally hired by former Attorney General Schuette to head the Flint criminal investigations. According to a May 24 report by the Detroit Free Press analyzing communications the paper received courtesy of a FOIA request, Solicitor General Fadwa Hammoud claimed in late April that “it recently became clear that discovery was not fully and properly pursued from the onset of this investigation.”
Other issues seem to be the product of the “conflict wall” Nessel has erected within her office.
One one side of the wall are the attorneys, led by Hammoud, charged with investigating and charging the officials who allowed the people of Flint to be poisoned. The other side of the wall is staffed with people defending those same officials, and the state, in the 79 civil suits arising from the crisis.
That wall is the reason cited by Rossman-McKinney that Hammoud’s team issued a search warrant earlier this week for former Gov. Rick Snyder’s phones and other devices—all of which were in the possession of the team of attorneys on the other side of the wall. “The two sides can’t communicate except through the courts,” Rossman-McKinney explained in a June 7 email to Daily Kos, to avoid the possibility that the criminal defendants’ defense teams could accuse the criminal attorneys of mishandling evidence.
The conflict wall seems to have itself led to conflict. In May, an unnamed assistant attorney general submitted a filing to the court hearing Lyon’s case stating that the earlier motion to stay, or delay, Lyon’s case by Solicitor General Hammoud “was not a full and complete picture of procedures used to facilitate discovery in the criminal cases pending against Lyon and seven other current and former city and state officials facing criminal charges related to the water crisis.” Hammoud requested a six-month stay to review the 20 million documents discovered in April. Judge Joseph Farah gave her team two months instead.
According to the May 1 MLive report on the filing, the assistant attorney general stated that Hammoud made several “incomplete or inaccurate” statements in the motion for a stay, including allegations that “the Attorney General’s Office concealed millions of responsive documents from them,” “the Attorney General’s Office represented that phone data did not exist when it did exist,” and “the Attorney General’s Office produced millions of pages of documents in a non-searchable format.”
In other words, some members of the attorney general’s office are possibly at odds with other members of the attorney general’s office, while all of them are working on different types of court cases arising from the poisoning of thousands of Flint residents.
But while the attorney general’s office seems to be struggling to get its act together, both teams seem serious about pursuing justice for the people of Flint. At least one Republican legislative leader, on the other hand, was recently willing to cast doubt on whether Flint residents have a legitimate case at all. A June 2 report in The Detroit News, about negotiations by Nessel to settle the civil suits filed by Flint residents seeking restitution for the harm done to them by former Gov. Snyder’s administration, quotes Republican Senate Majority Leader Mike Shirkey as saying, “I’m not of the opinion that the damage people are seeking payment for is real, but the perception is that.”
Shirkey later clarified his comment to say that “some of the damages alleged in Flint were real,” but others “were people taking advantage of what happened.”
Flint Mayor Karen Weaver did not respond to Daily Kos’ request for comment by the deadline for this story.
Dawn Wolfe is a freelance writer and journalist based in Ann Arbor, Michigan. This post was written and reported through our Daily Kos freelance program.