Flint Water Case: Michigan Court Of Appeals Rules Against Attorney General

Last Thursday the Michigan Court of Appeals ruled against Michigan’s Attorney General Dana Nessel in the Flint Water Case.  AG Nessel wanted to discard a central tenant of our law, the attorney-client privilege, and make millions of documents available to her office in the prosecution of former Department of Health and Human Services Director Nick Lyon.

The Detroit Free Press reported:

An appeals court recently denied the Michigan Attorney General’s request to overturn a lower court's decision tied to the Flint water crisis prosecution of the state’s former health department director…It's another blow to the state's efforts to prosecute anyone about Flint’s lead-poisoned water, and has the potential to delay criminal trials for years while costing taxpayers millions of dollars…The Michigan Court of Appeals ruled against the attorney general on Thursday, declining to take up the office’s request to overturn a decision from the 7th Circuit Court in Flint directing the state to use a so-called “taint team” in the prosecution of former Department of Health and Human Services Director Nick Lyon.

A taint team is described as an “independent group of attorneys or other experts, to review documents for information potentially covered by attorney-client privilege”.

Attorney General Dana Nessel was made well aware that her prosecutors had privileged documents, document they were not supposed to have, via emails back in April of 2021.  Despite these warnings, AG Nessel failed to take any corrective action at all.  Last November MLive reported that Genesee Circuit Judge Elizabeth A. Kelly ruled that the Michigan Attorney General’s team must use a taint team “to filter out attorney-client privileged documents before they are used in cases against nine individuals charged with crimes tied to the crisis”. Will she follow the law, she has not in the last year why start now?

I would like to address an interesting fact that Dave Boucher, the author of the Detroit Free Press article failed to inform his readers about.  In his piece, he wrote that it would take a team of 100 lawyers two years and “more than $38 million to review all the documents in the case”.  What Dave is not telling you is the estimate of 100 lawyers, two years and $38 million came from AG Dana Nessel’s former business partner Chris Kessel, who was hired by the state for this case.

Eric Ventimiglia, Executive Director for Michigan Rising Action stated:

Dana Nessel is deliberately stalling prosecution for political expediency. After staff warned Nessel that they had privileged documents in April 2021, no action was taken - even after the issues were raised in court…If Attorney General Nessel was truly focused on justice, she would have taken corrective action as soon as her staff realized they had privileged documents.

But she did not, I wonder why.