Federal Judge Rules -former MI Gov Rick Snyder & four other must testify in the Flint water crisis civil trial
Years in the making -even after Synder et al litigated this to the US Circuit Court of Appeals.. Only later to argue the subpoenas would infringe upon their 5th Amendments rights. Try Again.
By way of background you might benefit from (re)reading this November 2021 Article. It’s a pity that all of my previous Twitter research is gone…or is it? Did you really think that I had forgotten about the Flint Water Crisis? I can assure you that even with all the balls I’m juggling I did not forget. I just don’t pontificate if there are no newsworthy updates. And boy was there one helluva March 21, 2022 update. So let’s go over what I think you should know…
In the aforementioned article, I noted that you should keep an eye on this case, irrespective of how complex and protracted this case wou;d be. Collectively these individual defendants sought to quash numerous subpoenas, in the civil litigation. The civil litigation sought to hold several private engineering firms accountable. Keep in mind in November 2021 a partial settlement was agreed upon.
Which now brings us to March 21, 2022, United States District Judge JUDITH E. LEVY issued a 20 page Order (see ECF link denying 1 their motions to quash:
Collectively the Movants (former Governor Snyder, Richard Baird, Darnell Earley, Gerald Ambrose, and Howard Croft) argued that their fifth amendment rights would be infringed upon. With one extraordinary infinity of their argument:
…the Movants had already sat for lengthy depositions and failed to invoke their fifth amendment rights…
Moreover the Defendants (as further reflected in the public docket) made a calculated gamble. The Defendants and counsel analyzed the cost/benefit and ultimately they choose to avail themselves to lengthy depositions. As the public docket confirms, the Defendants understood (on the record) that their deposition could be construed as their waiver of the fifth amendment protections. All of which was reiterated in the March 21, 2022 Order/Memorandum (see pages 2 thru 6)…
This datapoints was pointed out in the Court’s March 21, 2022 Order/Memorandum —It’s also notable that Defendants Snyder et al — litigated the subpoenas for depositions, all the way to the US Circuit Court of Appeals and ultimately their arguments were unpersuasive. In my industry we call what the defendants attempted to do a “clawback” —but the reality is once you’ve waived your 5th amendment rights, you can not (albeit months and in this particular case years) later clawback your deposition testimony… I now refer you to page 3, the first and second paragraphs —which is a concise state of play and reads in part:
…Having been advised by counsel and having considered the costs and benefits of testifying, each Defendant witness ultimately decided not to invoke the Fifth Amendment privilege at his deposition
ICDs and Snyder, as parties to the litigation, would have to weigh whether to risk an adverse inference in this litigation if they exercised their right to the Fifth Amendment privilege at their depositions. They chose to testify. (emphasis added)
It is important to understand that the Flint Water crisis wasn’t a result of “human error” this was a result of the Defendants (collective) wanton disregard of the public’s health and safety. The long term health implications for residents of Flint, MI may take decades to fully present the totality of the adverse health implications. This is especially problematic for the children of Flint. Again I explained the short term and long term health ramifications in this Nov 2021 article.
Not to belabor this point but there is literally zero amount of safe “heavy metals” in a child’s bloodstream. As noted by Federal and State regulators have repeatedly deemed heavy metals in a child’s bloodstream is “unsafe”— Unbeknownst to the children’s parents/grandparents/guardians and other adults in Flint, MI —they allowed their children, bathed, brushed their teeth and likely consumed the toxic water. In my industry we use the following phrase “shocks the conscious” as a benchmark and the Flint, MI water crisis is the embodiment of the widely accepted legal standard.
As many of you know, clean water is a subject matter that I have spent nearly two decades researching and advocating on behalf of several clients. The fact is clean and safe water is a public utility and it unquestionably requires significant amount public trust. What the Flint, MI Defendants did was a grotesque violation of the public’s trust. And once that trust is broken, it is nearly impossible to ever regain it. In sun and substance, what the Flint, MI Defendants did to thousand of unsuspecting Flint residents, was in fact criminal and accordingly criminal charges were pursued, only to be later dismissed…
However it’s important to remember that there has been turn over related to both Wayne County and the previously appointed special prosecutor, Todd Flood. Flood spent nearly three years investigating and prosecuting the onerous actions of Gov Snyder & his underlings In 2019 Todd Flood was unceremoniously relieved of his position and thereafter Fadwa Hammoud was then appointed as Solicitor General. I am certain some of you might recall my 2019 thread in which I explained that Hammoud’s decision to dismiss the criminal charges against ICDs but I also pointed out that these charges dropped without prejudice. Meaning future prosecution would in fact come to fruition. Indeed it did -see the July 2019 Press Release https://perma.cc/RC5Z-EPUW
As noted in that July 2019 Press Release and this is why back in 2019 I attempted to explain to my followers, that just because the criminal charges were dismissed, they were not dismissed with prejudice….
Hammoud further announced that she would “aggressively pursue” leads against “additional individuals of interest.” Dept. of the Attorney General, Press Release: Flint Water Prosecution Team Expands Investigation Based on New Evidence, Dismisses Cases Brought by Former Special Counsel (June 13, 2019)
And for the record you can’t clawback a waiver you previously acknowledged in an attempt to evade accountability. As correctly noted by the Court —the Defendants proffered a single case as the tombstone of their newest argument seeking a Motion to Quash. The Court found the Defendants “new and improved” arguments unavailing and upbraided the Defendants… truly the March 21, 2022 Order/Memorandum is a thing of beauty and you really should take the time to read it. Yes I know I tend to get “in the weeds” but in my industry that’s what I’m compensated to do…and my readers are the lucky beneficiaries of my tenacious tendencies, or not.
January 2021 -Nine (recharged) Indictments…
Again while some were shocked at the news that charges had been dropped, I attempted to help my readers/followers to understand the complexity of the Flint, MI water crisis and criminality. In short attempting to blunt the understandable outrage. While also explaining what most were overlooking. Indeed a few of the Defendants were “re-charged” see January 14, 2021 Michigan Attorney General’s press release https://perma.cc/6ESX-FPW2 -which announced: Nine Indicted on Criminal Charges in Flint Water Crisis Investigation. I’ve taken the liberty of sourcing all nine indictments, because it’s impossible for you to have access to the original documents, see below:
When you look at the socioeconomic and demographics of Flint, MI —it’s a natural assumption to draw a corollary and the disproportionate adverse impact to African Americans. See U.S. Census Bureau QuickFacts for Flint, MI (population estimates as of July 2021) which affirms that assertion. No amount of money will bring back those 90+ individuals who died (see NIH’s July 2018) The Growing Impact of Legionella in the Flint Water Crisis - but the recent partial settlement (read more here) will provide some financial assist to the countless adults and children who have been injured and in some cases irreparably injured. The November 2021 partial settlement, has earmarked some funds to help victims with the long term medical care.
Again you can pull down a highlighted and annotated copy of the Court’s March 21, 2022 Order/Memorandum via my Scribd Account or you can pull it down from the EDMI-ECF, found here…as for what happens next: I now refer you to page twenty the very last paragraph which reads in part:
…Oral argument regarding the scope of movants’ waiver and the practical procedure to be used for their testimony is set for March 25, 2022 at 10:00 AM. Movants should come prepared to discuss what they believe is the scope of their waiver, and VNA and LAN should be prepared to respond. Plaintiffs, VNA, LAN, and movants should also be prepared to propose to the Court how arguments regarding waiver on a question-by-question basis should be made.
Lastly it is possible the Defendants might file an Appeal but only time will tell and it’s best to wait and see —versus making an educated guess. And lastly, as a reward for slogging through this long article, here’s you extra dose of saltwater therapy. Enjoy.
PS - I’ll be back to my normal daily Substack publications for the foreseeable future. Although with a caveat, in April of 2022, I am going to indulge in some ocean selfcare while simultaneously completing the “honey do list” of our beach property. So that’s my circuitous way of telling you that my civi duty as a juror concluded earlier today… praise sweet baby Jesus… because the last few weeks has been hellacious…
Case styled as: Walters v. Flint (5:17-cv-10164) -Order (Doc # 739) denying the following three motions: 712 Motion to Quash; denying 715 Motion to Quash; denying 718 Motion to Quash.
Amen sister. Yes I was a faithful Spicy follower.
As a Michigander I can say YAY YAY YAY and thank you Filey! There has to be Justice for the victims of the heinous actions of the Governor and his henchpersons. Karma has no schedule.