Grand jury testimony, exhibits key to failed Flint water prosecution kept under seal
LANSING, Mich. — A red and white banker’s box held together with clear tape and bearing torn mailing labels was slipped last month into a closet at the Michigan Hall of Justice.
Its contents — one of the most significant, failed cases in state history — are barred by law from ever being made public. The cardboard box collecting dust in Lansing contains documents, notes and transcripts of testimony used to charge nine individuals, including Republican former Gov. Rick Snyder and some top aides, with crimes related to the Flint water crisis.
The charges were thrown out a little more than a year after they were issued when the Michigan Supreme Court ruled the state’s one-judge grand jury law had been misapplied to the high-profile case.
But grand jury law still applies to the management of the documentation generated during the process and that law requires the documents remain suppressed indefinitely. It also bars officials from discussing exhibits or testimony presented during those proceedings.
Like many aspects of the Flint water crisis — now 10 years old — information about what went wrong is slow to trickle out and vows of transparency have led to frustrating dead ends.
The documents could provide some closure to Flint residents who never got their day in court, Flint Mayor Sheldon Neeley said.
“I am anxious as the next person to see and review these documents, to see what is in them or not in them,” Neeley said. “We need to be able to evaluate these things in an open environment.”
Attorney General Dana Nessel’s Flint prosecution team vowed at the closure of the Flint criminal prosecution last year that it would work with lawmakers to change the law keeping the grand jury records sealed. But it’s not clear that any such discussions have taken place.
Nessel’s office on Wednesday would not say whether it had spoken with any lawmakers regarding a statutory change that could result in a release of information or to confirm it was still working toward that end. Several lawmakers in a position to introduce the legislation — including Democratic Flint lawmakers Sen. John Cherry and Rep. Cynthia Neeley — said they had not been approached by the attorney general’s office.
In other instances, the attorney general’s office redacted key information from documents that spoke to the status of the case when she took over in 2019, and other requests for communication related to the unsuccessful prosecution her office mounted in 2021 have carried large price tags.
Citing exemptions allowing for nondisclosure of information of an “advisory nature,” Nessel’s office redacted key portions of a 2019 report summarizing the status of the Flint water prosecution before her office upended prior efforts under Republican Attorney General Bill Schuette. A request to her office seeking emails among the lead prosecutors on the case carried a $2,200 price tag.
A similar, but smaller request submitted to the Wayne County Prosecutor’s Office, where Prosecutor Kym Worthy was asked to help with the Flint case, took several weeks to process before the office issued a $400 bill.
The Detroit News is working with both Nessel’s office and the Wayne County prosecutor’s office to lower the cost.
At the official closure of the Flint case last year, Nessel’s office said her Flint prosecution team would release a full report in 2024 on its prosecutorial efforts. The report is still expected to be released later this year and a spokesman said the office’s intent is “to share as much as is legally possible.”
“On this difficult anniversary, we remember the lives lost, and honor those forever changed by the Flint water crisis,” Nessel said in a statement Wednesday. “We remain haunted by the unprecedented Michigan Supreme Court decision that ended our criminal prosecutions against the government actors we charged as responsible for the man-made crisis, and we hope the funds from the historic civil settlement reach victims in the city as soon as possible.”
Grand jury documents
Charges in the Flint water prosecution date back to Schuette, whose office leveled charges against several individuals related to the crisis during his time in office.
Schuette’s office reached misdemeanor plea deals with some defendants and, in other cases, saw the more serious felony cases bound over for trial to circuit court. His prosecution team, led by lawyer Todd Flood, said their work wasn’t done and that more charges were possible.
When Nessel replaced Schuette in 2019, she appointed Solicitor General Fadwa Hammoud and Worthy to lead a review of the case. Nessel at one time worked in the Wayne County Prosecutor’s office.
Hammoud and Worthy fired Flood and his team from the prosecution and, in June 2019, announced they would dismiss the cases already brought and restart the investigation and prosecution from scratch.
In late 2020, Hammoud and Worthy presented evidence and testimony in secret before a one-judge grand jury in Genesee County. Judge David Newblatt in January 2021 issued indictments against nine individuals, including the former governor, for crimes related to the Flint water crisis.
But in June 2022, the Michigan Supreme Court dismissed the charges in a unanimous opinion that found the one-judge grant jury law allows judges to issue investigative subpoenas or arrest warrants, but does not permit judges to issue indictments.
When Nessel’s office exhausted its appeals of the high court opinion in October 2023, the Flint prosecution team said it would work with the Legislature to tweak laws preventing the grand jury dockets, journals, transcripts or records from being made public and preventing officials from discussing evidence or testimony presented during the proceeding.
“To allow the people of Flint the opportunity to know how and why they were exposed to lethal chemicals in their water is the very least that can be done,” the statement said.
State law requires documents related to a grand jury indictment lasting more than 30 days to remain under seal at the Michigan Supreme Court in perpetuity. The only person able to access parts of the record are witnesses to prove they were granted immunity during the proceeding, and even then, the access is limited to the pertinent sections of the record.
Interested parties can request the record destroyed starting six years after the conclusion of the grand jury process. In the case of the Flint documents, the documents could be destroyed as earlier as 2027.
A separate section of the law prevents individuals from making known
“to any other person any testimony, exhibits or secret proceedings obtained or used in connection with any grand jury inquiry.” Violations of the law are considered a felony.
Reports and emails
Since the start of the
Flint water crisis through January 2024, the attorney general’s office released roughly 110 documents related to its work on the issue, according to documents obtained by
The News through a public records request.
The trove of documents released through the Freedom of Information Act includes legal contracts, emails, cost breakdowns, conflict wall policies and subpoenas. It also include a transition report submitted by Flood’s Office of Special Counsel that detailed where the case stood in December 2018 as Nessel prepared to take office.
The 92-page report is replete with redactions of subpoenaed witnesses and polygraph results — both of which are exempted from disclosure by law — but includes pages of summaries of the criminal cases that had already been charged.
The report ends with a black box of redactions titled “Current investigation,” in which Flood presumably detailed potential next steps in the investigation.
The attorney general denied a Detroit News appeal seeking disclosure of the brief entry, arguing the department had been “transparent” with most of Flood’s findings, but the paragraph in question was protected by exemptions that shield communications of an “advisory nature.”
“I can share with you that this section included very preliminary speculation from Special Assistant Attorney General Flood, without supporting evidence,” Kim Bush, a spokeswoman for Nessel, said in a statement.
In other recent requests, The News asked for Hammoud and Worthy’s emails where they used key words such as “Flint,” “Snyder” or “Newblatt.”
The office this month said the documents could be prepared for $2,200 and Worthy’s office cited a $400 bill. The News is working to obtain lower cost estimates from the agencies.