“Star Chamber Comeback”: Michigan Attorney General Dana Nessel Loses Flint Water Cases in Spectacular Fashion

Attorney General Dana Nessel has lost the Flint case in spectacular fashion this week. Over six years ago, I wrote earlier about misgivings over the prosecutions but Nessel’s office created new challenges for the prosecution. In an unanimous 6-0 ruling, the Michigan Supreme Court held that her office committed a fatal and inexplicable error in prosecuting nine officials for the Flint water crisis, including former Gov. Rick Snyder. The court ruled that prosecutors doomed the case when they decided to bypass the conventional grand jury system in favor of a single judge to indict the officials. Now the cases have been tossed out.

While the one-judge grand jury approach can be used to investigate a crime in secret, it cannot be used to indict an individual. Three years ago, Nessel’s office dismissed Flint water charges brought by the Democrat’s predecessor, Republican Attorney General Bill Schuette. Nessel then restarted the prosecutions anew but ignored statutes that clearly do not allow the use of a single judge to issue indictments.

In order to restart the process for a third time, prosecutors would have to establish the basis for indictments more than eight years after the water crisis.

It is not clear if future prosecutions might run afoul of the six year statute of limitations for most crimes. It can go up to 10 yeas for felonies like manslaughter, which were the charges brought against two defendants.

The opinion written by Chief Justice Bridget McCormack slammed Nessel’s office by noting that the need for a grand jury for such charges was an “unchallenged assumption, until now.”  Chief Justice McCormack referred to the attorney general office’s use of a one-judge grand jury as a “Star Chamber comeback.” She noted that “[t]o this day, the defendants do not know what evidence the prosecution presented to convince the grand jury (i.e., juror) to charge them.”

Justice Richard Bernstein wrote a scathing concurrence that “… there would be little credibility to a criminal process that purports to strike a fair balance between adversaries if the guarantees underpinning that criminal process —such as the statutory right to a preliminary examination — could be done away with at the whims of the prosecution.” He added “[t]he prosecution cannot cut corners — here, by not allowing defendants a preliminary examination as statutorily guaranteed — in order to prosecute defendants more efficiently.”

While popular with many in the media, Nessel has had a controversial record, including statements on issues from the election fraud to transgender teachers that have drawn criticism from conservatives. Yet, this opinion reveals sheer incompetence by her office in one of the most important cases in years. It is not clear that her office can fully prosecute these cases at this late date after the damage done by Nessel’s office.

Nessel is running for reelection.