Rare, secret 1-person grand jury being used in Flint water charges against Rick Snyder
Prosecutors call the one-person grand jury an essential tool. Defense attorneys decry its use, which they say is a denial of due process.
Joe Guillen and Elisha Anderson, Detroit Free Press
Published 8:00 AM CDT May. 31, 2021 Updated 8:00 AM CDT May. 31, 2021
The ongoing Flint water case against former Gov. Rick Snyder is relying on an investigative tactic so rarely used that some legal experts aren’t familiar with it.
Known as a one-person grand jury, the process is cloaked in secrecy.
It involves the appointment of a single judge to review evidence out of public view and decide whether charges should be brought. In contrast to the way most criminal charges are brought, using a one-person grand jury alters how evidence is turned over to defense attorneys and delays their ability to cross-examine witnesses.
Prosecutors call the one-person grand jury an essential tool for fighting crime and compelling reluctant witnesses to testify. Defense attorneys of the accused decry its use because they have no official role during the grand jury proceedings, which they say is a denial of due process.
The tactic now is under attack in one of the most high-profile political cases in years: the state’s prosecution of Michigan’s former governor and a slew of his former aides for their alleged criminal roles in the poisoning of Flint’s drinking water supply.
As a remedy, defense attorneys are now asking a Genesee County Circuit Court judge to allow defendants to have a hearing, called a preliminary examination, that allows cross-examination of witnesses before trial. Prosecutors say they aren’t entitled to the hearing.
The defense attorneys’ pleas have renewed controversy over the tactic that dates to the mid-20th Century when one-person grand juries were more commonly used to combat public corruption.
The very existence of the Flint one-person grand jury wasn’t known publicly until January, when indictments were unsealed in Genesee County against nine former or current government officials, including Snyder. All have pleaded not guilty.
More than four months later, much about the grand jury investigation into Flint's lead-contaminated water supply and deaths linked to Legionnaires' disease remains unknown.
Randall Levine, an attorney for Rich Baird, a former top aide to Snyder facing four felonies, including perjury, said defendants want to know the evidence behind the charges.
"We don’t even know, even to this day, what it is that the government claims (Baird) lied about," Levine said. "They hide behind the secrecy that’s afforded to them by this one-man grand jury process, all the while Mr. Baird dangles in the wind, his name being smeared."
Genesee County Circuit Court Chief Judge Duncan Beagle said he is now reviewing the Flint water crisis grand jury transcripts before they are released to the defense. Under state court rules, Beagle must release portions of grand jury records that touch on the innocence or guilt of the accused.
Questions remain
The Flint water prosecution team’s written request to appoint the one-person grand jury has not been made public. In recent statements and interviews, the Attorney General’s Office declined to say specifically why it sought a one-person grand jury. The office also could not say when it last used a one-person grand jury, explaining that the information is not tracked.
Wayne County Prosecutor Kym Worthy, who was asked by Michigan Attorney General Dana Nessel to lead the Flint prosecution alongside Solicitor General Fadwa Hammoud, provided only a hint as to why prosecutors relied on such a secretive process.
NFU HAN, DETROIT FREE PRES
“We felt that a grand jury was the most expeditious and efficient way to proceed, for many reasons that we won’t go into today. It will become clear as this unfolds,” Worthy, whose office has used the one-person grand jury in other cases, said at a news conference in January.
A spokeswoman for the attorney general earlier this month declined to provide more information.
Kym Worthy, Wayne County Prosecutor, on one-person grand juries
It can be a helpful tool to solve certain complex, interconnected crimes that are violent or drug related. It can be helpful when witnesses are afraid to come forward.
The latest round of criminal charges stems from the second Flint water crisis criminal prosecution. In 2019, Nessel's office dismissed all pending criminal charges brought under her predecessor, former Attorney General Bill Schuette, and launched a new investigation, resulting in a single-person grand jury authorizing new charges against some of the same defendants.
The only available public records describing the charges in the current Flint cases are the indictments filed by the grand juror, Genesee County Circuit Judge David Newblatt. The indictments summarize charges tied to the water crisis but do not provide specific details. During the cases under Schuette, the prosecution team appeared in open court to explain evidence in the case, which led to charges being authorized by the court.
The latest charges range from misdemeanors to felonies and include willful neglect of duty, extortion, obstruction of justice, perjury and involuntary manslaughter.
Attorneys cite pros and consProsecutors across the state said benefits of the one-person grand jury process in state cases include getting witnesses to speak, solving crimes, and investigating partisan cases.
“It can be a helpful tool to solve certain complex, interconnected crimes that are violent or drug related,” Prosecutor Worthy said in an email about her office's use of the same system in other cases. “It can be helpful when witnesses are afraid to come forward.”
Unlike preliminary examinations held before trial, where witnesses testify in courtrooms that are open to the public, a one-person grand jury allows witnesses to testify in a hearing that's confidential.
Prosecutors are involved in the one-person grand jury process. Defense attorneys of the targets of the investigation are not.
Defense attorneys prefer a more open system where they can challenge evidence.
When a one-person grand jury is used, it prevents them from cross-examining testimony in the case until trial. The preliminary examination is skipped because probable cause has already been found by a judge serving as the one-person grand jury.
“I dislike them intensely,” said Lillian Diallo, a longtime defense attorney and president of the Wayne County Criminal Defense Bar Association. “I think they’re really repugnant to justice.”
Diallo said during her career spanning more than two decades, she has had no more than 10 cases go through the one-person grand jury process. Some cases have fallen apart after the indictment when a witness recanted or conflicting evidence was presented, she said.
In addition to the Flint water crisis, one-person grand juries have been used in several high-profile cases over the years including the death of Aiyana Stanley-Jones, a 7-year-old fatally shot during a Detroit police raid in 2010. Detroit Police Officer Joseph Weekley was indicted on charges of involuntary manslaughter and careless discharge of a firearm causing death. He was tried twice, both trials ended with hung juries and the case was dismissed.
A one-person grand jury also was used to investigate the failed Wayne County Jail project in downtown Detroit. Three people were charged for their roles in the project in 2014, but ultimately none were convicted.
The method is rarer outside Wayne County. The last time the Oakland County Prosecutor’s Office used a one-person grand jury was 2011 in an election fraud case, a spokesman said. Veteran prosecutors in Macomb and Genesee County said they don't recall it being used by their offices in decades.
During a five-year stretch between 2016 and 2020 in Wayne County, 161 defendants were arraigned after being indicted through the one-person grand jury process, according to data provided by the court’s general counsel. Still, that's only a tiny percentage of the thousands of overall cases charged in Wayne County each year.
Worthy said her office started using the process years ago because of the large number of nonfatal shootings in Detroit that weren’t being solved because witnesses were fearful to come forward.
“It has been a successful tool,” Worthy said.
How it works
The process to convene a one-person grand jury starts with a petition being filed by prosecutors.
The petition outlines the scope of the proposed inquiry and then the court decides whether to assign a judge to investigate the matter.
Witnesses are subpoenaed and testify before the appointed judge behind closed doors. The judge determines what charges, if any, should be filed, but does not need to explain why at a public hearing.
The process is often used to determine who the defendant or defendants should be. Sometimes that might not be known for months into the process.
“Its use under limited circumstances is helpful,” said Wayne County Circuit Court Chief Judge Timothy Kenny, who has served in the role of a one-person grand jury.
Michigan’s one-person grand jury system is somewhat similar to more commonly used federal grand juries, which are made up of up to 23 citizens drawn from pools of potential jurors, said Mark Osler, a law professor at the University of St. Thomas in Minnesota and a former federal prosecutor in Detroit.
Both types of grand juries have the power to subpoena witnesses and documents in the course of an investigation. But a one-person grand jury comes “without the muss and fuss” of a citizens’ grand jury, which must be instructed about how the legal system works, Osler said.
The secrecy required of grand-jury proceedings, Osler said, helps protect witnesses from retribution and prevents uncorroborated allegations from becoming public prematurely.
Attorneys battle in court
Attorneys involved in Flint water crisis cases have been battling in court for years now. The first criminal charges were issued five years ago.
Some of the Flint water defendants say they still want a pretrial preliminary exam to review and challenge the evidence and probable cause behind the one-person grand juror’s indictments. Without such a preliminary exam, the court is violating their due process rights, their attorneys have argued.
The attorney general’s office has opposed the request, saying such hearings are not held when charges are brought through a grand jury indictment.
Both sides are waiting for Genesee County Circuit Judge Elizabeth Kelly to rule on arguments made at an April 6 hearing.
It's unlikely the cases will move to trial anytime soon. During the investigation, officials said they reviewed millions of documents and executed dozens of search warrants.
With a case of that magnitude, it can be difficult to predict the timeline to resolve, legal experts said. The case, experts said, is not routine. Instead, it's a complicated case involving very unusual circumstances.
University of Michigan law professor Len Niehoff said the more complex, the more documents, the more parties, the more witnesses, the longer it can take to conclude.
“I think that’s it’s fair to say the vast majority of cases move along much more quickly than this,” he said. “This is by any standard a long running legal controversy.”
Contact Elisha Anderson: eanderson@freepress.com. Follow on Twitter: @elishaanderson. Subscribe to the Free Press
Contact Joe Guillen: jguillen@freepress.com. Follow on Twitter: @joeguillen
Published 8:00 AM CDT May. 31, 2021 Updated 8:00 AM CDT May. 31, 2021
1-person grand jury being used in Flint charges against Rick Snyder (usatoday.com) |
