Attorney General Dana Nessel is calling on the Michigan Legislature to repeal a law preventing the public release of evidence related to the Flint water crisis.
The attorney general’s office released a 105-page report Tuesday detailing the department’s handling of criminal prosecutions related to the Flint water crisis, which includes sections of evidence that are heavily redacted.
State law currently makes it a misdemeanor to release evidence collected through the one-person grand jury process prosecutors relied on to build their cases in any setting other than an open court proceeding.
Nessel said the Michigan Supreme Court’s unanimous 2022 decision to invalidate the one-person grand jury process means the cases brought against former Gov. Rick Snyder and eight other individuals do not have a path forward in court.
“To a large extent, justice has evaded the people of Flint,” Nessel said. “They will not have their day in a criminal court of law, and the people's exhibits and evidence will not be admitted and scoured, no defendants will be made to answer for their actions and no jury of their peers will be seated to ultimately pass judgment on the actions that led to the deaths of many and the poisoning of thousands.”
She said the report, detailing the prosecutorial decisions made in the cases, is the “single best and last available recourse available for us to put the story in the hands of those who deserve to hold it: the victims of the Flint water crisis.”
But that story will remain incomplete for the foreseeable future. Only an act of the Legislature could lead to additional information from the investigation being released.
“All the defendants have it; they have it right now,” Nessel said. “It's all provided to them. So they have it, the Supreme Court has it, one part of the Department of Attorney General has it. But not you. Not the media, not the public.”
The attorney general said even she is not allowed to see the redacted evidence since she wasn’t involved with the prosecutions, opting instead to oversee the civil litigation that led to the largest settlement in state history.
Nessel said it’s “impossible to separate” that Snyder appointed three of the justices serving on the court when they unanimously voted to throw out a century of precedent.
One of them, Justice Elizabeth Clement, recused herself from the cases after previously serving as Snyder’s chief legal counsel.
“I don’t think it’s a stretch of the imagination to say, given what I’ve read about all the emails and the other instances, that she was involved in this case at least as a witness,” Nessel said. “What an uncomfortable situation when the colleagues of Justice Clement had the ability to just make this all go away and to spare their colleague, their esteemed colleague who they have great respect for, to ensure she would never have to testify in this case.”
Adding to her suspicion, Nessel said the Michigan Supreme Court had declined to hear a challenge to the one-person grand jury process just a few years before unanimously overturning it and later denied requests to retroactively apply the decision to already final cases.
“This ticket was apparently good for one ride only,” Nessel said.
Nessel said the perceived bias created an unprecedented situation that was nearly impossible to navigate.
“What were our prosecutors supposed to do? You know, ‘I’d like the Supreme Court to recuse itself from being the Supreme Court?’ That’s unprecedented,” Nessel said. “What would you do if you had to say, I think that all three of them need to recuse themselves?”
While Nessel said she “harbors a deep regret that the information included in this report exists solely here upon its pages, and was not exhibited in a public courtroom,” she said she does not regret choosing to handle the civil litigation.
“I wanted to make sure that the victims of this crisis had what they needed to start moving on with their lives as quickly as possible,” Nessel said. “So, I thought if I was on the civil side, it would be easier for me, again, working with the governor and working with others in state government to apply as much pressure to get this settlement as quickly as we could. And we did.”
If the civil cases had gone to trial, Nessel said they likely would have resulted in a verdict so expensive it would bankrupt the state.
Nessel said she was also concerned that comments she made about Snyder as a private attorney spearheading a marriage equality case could have created a perception of prosecutorial bias.
“I had some, I would say, sharp language about our former governor during the course of that case, and so I didn't want to be accused later on of any potential charges being directly tied to any animus that I had against the former governor,” Nessel said. “So, I thought it would be better to have me not involved in any way, shape or form with the criminal cases, since we did have to have a conflict wall, and I was going to have to choose one or the other.”
Even if she had chosen to work on the criminal cases, Nessel said she likely would have made the same decisions, operating under the existing case law at the time that had allowed the one-person grand jury process for nearly 100 years.
The process was used in sensitive cases for its sealed environment and expedient presentation of evidence, especially in situations where early levels of witness secrecy – like with whistleblowers – were necessary, Nessel said.
“While I absolutely regret the outcome these many years later, and I wish more than anything in the world that I could provide for the residents of Flint the justice that was due to them, I don't know what this office could or should have done differently with the information they had at that time,” Nessel said.
