The Flint Charges and The Murky Legal Waters Facing Prosecutors

220px-Water_droplet_blue_bg05Below is my column in USA Today on the prosecution of three state and local officials in the Flint, Michigan water scandal. Michigan Attorney General Bill Schuette has promised more (and higher ranking) defendants in the coming weeks. However, as discussed in this column, these cases are not as straightforward as the pictures of bottles of Flint water juxtaposed against clean water. While there are strong elements to some of the charges, the prosecution is not nearly as easily or obvious as has been suggested in the media, in my view.

BillSchuette2011Inauguration_cropIt was a popular if somewhat chest-thumping moment for Michigan Attorney General Bill Schuette, who is expected to run for governor in 2018. He recently announced criminal charges against three people in the Flint water crisis and then, to the delight of many, pledged that they were “only the beginning” and that “nobody’s ruled out.”

However, history has shown us that there can be a thin line between a public crusade and a show trial. Just as a high level of lead makes for bad water, a high level of politics makes for bad cases.

The Flint case is not nearly as open and shut as suggested by many. Prosecutors have targeted three water officials with an assortment of felony and misdemeanor charges. The most serious allegations concern a 2015 report, “Lead and Copper Report and Consumer Notice of Lead Result.” City and state officials collected 71 lead level samples from homes, well short of the required 100. And two samples were left out of the final report — two that just happened to have “high-lead” readings that would have triggered public notice as showing “action levels” above 15 parts per billion. Other allegations focus on advising residents to run or “pre-flush” their water before taking samples and other actions that allegedly helped reduce lead levels.

The most immediate problem with these cases is that this is a highly complex area of overlapping rules and jurisdictions. The reporting rules are rife with differing administrative interpretations and practices. For example, pre-flushing was permissible under state regulations that existed at the time of the crisis.

Then there is Mike Glasgow, the former laboratory and water quality supervisor who lives in Flint and now serves as the city’s utilities administrator. He faces a felony charge for allegedly tampering with evidence and a misdemeanor on willful neglect of duty. Yet Glasgow is seen by many as the one official who was aware of problems early on and tried to help when the crisis hit. He personally gathered samples in at least one case of a high-risk home and complained about the expedited schedule for switching over to the river water.

Lee Anne Walters, a Flint mother whose home was one of the two samples removed from the final report, said Glasgow left her an urgent voice message that said, “Please don’t drink your water. Please don’t let your kids drink the water. Don’t mix their juice with the water,” In her view, “Mike Glasgow was the only person who was helping us from the city. I really kind of feel like Glasgow was stuck between a rock and a hard place …. Who was he supposed to go to? Who is he supposed to talk to?” Jurors are likely to ask the same questions.

Special counsel Todd Flood dismissed Glasgow’s defense as reminiscent of “Nuremberg and the like.” The problem is that this is not Nuremberg, and people like Glasgow are not little water-based Adolf Eichmanns. Indeed, Glasgow reportedly opposed the switch to the Flint River as a water source and cooperated with investigators, the FBI and congressional committees.

One of the most important pretrial fights is likely to be whether Flood can exclude evidence of the practices and status of drinking water outside Flint. It would take too long to list the states with unsafe levels of lead in their water supply. It is easier to list the nine that do have safe levels: Alabama, Arkansas, Hawaii, Kentucky, Mississippi, Nevada, North Dakota, South Dakota and Tennessee, CNBC reported. The corrosion problems in Flint are common across the country, and politicians do not want to spend the huge amount of money needed to remove the pipes. Sound familiar?

The most serious allegations are directed at Michael Prysby, then an engineer with Michigan’s Department of Environmental Quality, and Stephen Busch, the district supervisor for the Office of Drinking Water. However, both these officials are likely to seek to show that what they did was not out of the norm — like choosing a testing regimen over the use of corrosion chemicals, or the common practice of pre-flushing before sampling in order to avoid artificially high readings due to stagnant or still water flow.

As Schuette fulfills his promise to bring charges further up the ladder of state government, these challenges are likely to become even greater. Officials often rely on subordinates to interpret state and federal rules and practices. A criminal case against Michigan Gov. Rick Snyder, for example, seems exceptionally weak at this point. Unless there’s evidence that Snyder was out to poison the citizens of Flint or knowingly supported the falsification of reports, any liability would be confined to the civil courts or, even more likely, the court of public opinion.

None of this means that criminal charges are improper in the Flint water scandal, but the criminality in such cases may be far murkier than Schuette has suggested.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.

April 29, 2016

22 thoughts on “The Flint Charges and The Murky Legal Waters Facing Prosecutors”

  1. Phosphate is a nutrient if you are a vegitative plant. Glycophoshate is a herbicide if you are round up ready. Orthophosphate wasnt used until 2001…for water pipes. For some reason…..tptb decided to put orthophasphate in the water circa 2000. Like we haven’t had lead pipe joints since 1900. I dunno….orthophasphate looks like a cover story for vaccines or visa versa. Fact is phosphate materially interferes with metabolism. Hence our diabetes epidemic. They will either shove phosphate down your troat with monsanto or the water supply….query….
    How before 2000 was the water supply “lead free” because orthphosphate in water lines is as new as widespread autism.

  2. What does the “anti corrosion” additive taste like? Is it safe? Harmless? And are alabama, arkansa, mississippi and tennesee just passing the ” lead ” test because their pipes don’t have lead or they use a lot of “corrosion additive”…?

  3. Who bought the lead pipes in the first place? What year? Who is prosecuting?
    Defense of estoppel.
    Call the lead counsel “the Lead Man”. That is lead the troops not lead poison kind of lead.

  4. Why am I not surprised??

    From: JONATHAN TURLEY To: jimkuden@sbcglobal.net Sent: Friday, April 29, 2016 3:01 AM Subject: [New post] The Flint Charges and The Murky Legal Waters Facing Prosecutors #yiv0853777342 a:hover {color:red;}#yiv0853777342 a {text-decoration:none;color:#0088cc;}#yiv0853777342 a.yiv0853777342primaryactionlink:link, #yiv0853777342 a.yiv0853777342primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv0853777342 a.yiv0853777342primaryactionlink:hover, #yiv0853777342 a.yiv0853777342primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv0853777342 WordPress.com | jonathanturley posted: “Below is my column in USA Today on the prosecution of three state and local officials in the Flint, Michigan water scandal. Michigan Attorney General Bill Schuette has promised more (and higher ranking) defendants in the coming weeks. However, as discuss” | |

  5. Great piece. As Steve F noted, political hack prosecutors are the worst. Watch the ESPN 30/30 documentary called Fantastic Lies. It is about the Duke lacrosse case. Prosecutor Mike Nifong was up for reelection. He was the only criminal in this travesty. Of course, he only got a slap on the wrist and served 1 day in jail. Attorneys take care of their own, more than cops or docs.

  6. Natural water bubbling out of a spring can be filled with concentrated minerals, as can well water. Everyone is on their own. Politicians basically protect only themselves. Never believe that others are protecting you. They are protecting themselves.

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    1. Jerry – one of the bottled waters, Dasani I think, is actually tap water from California,

  9. I do not think this will turn out well for the prosecution. Flint accepted the lead pipes when they were first laid.

  10. While we all want a diligent prosecutor, an ambitious prosecutor with political ambitions can be a scary prospect – witness Giuliani, Spitzer and Schneiderman – all recent or current prosecutors from NY and all arguably violators of defendant’s civil rights.

  11. America take notice: lead pipes are dangerous. A hazard to your health. Does that mean anything to you?
    Then legalize marijuana… tooo toooo tooooo
    Right here in sweet Jamaica….

    –Bob Marley

    Then:

    Listen to a story bout a man named Jeb.
    A high mountainer livin in a shed.
    No running water or a trip to Disinee.
    He rounded up the kids and moved to Flint a lee.
    Michigan that is.
    Where the water is bad.

    –Beveryly Hillbillies song with changes

  12. One would think that part of the purpose of bureaucracy is accountability. Guess not.

  13. The criminal charges are akin to the water problem. The evidence is murky. Maybe murkey. Certainly low key. The bitching is rampant. Little David Susskind should shut up.

    If I were picking the jury for a defendant in one of these prosecutions I would ask some of the following questions on voir dire of the jury selection:

    Do any of you now have, or had you had, lead water supply pipes leading into your home or within the floors and walls of your home or basement?

    Have any of you ever worked as a plumber and removed old lead water supply pipes?

    Have any of you replaced water supply pipes– not waste water and sewer pipes– but water supply pipes in your home, condo or other properties?
    Juror Number Six– you raised your hand. Are you a plumber yourself? How did you know what
    to do in the job? When you removed old pipes where they full of gum, corrosion, muck, or
    other observable stuff? Did you replace the pipes with lead pipes? No? Not even available
    at Home Depot are they? Plastic pipes? Yeah, what kind? No, I mean what kind of plastic?
    Did you know that some brands of plastic pipe can exude bad things like poison?
    Could you be fair to this defendant here who only heard about some murkey water things but did not know about the lead pipes, had not examined any or been presented with any examples of lead pipes with muck in them and actually, like the rest of you folks here, knows nuthin bout birthin babies?

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