By Ben Solis
Staff Writer
Posted: May 4, 2024 10:31 PM

One of two prosecutors leading the failed Flint water criminal investigation appeared furious, dismayed and dead set on finding a way to keep the charges alive in the months following the Michigan Supreme Court's dismissal of the cases.

Gongwer News Service filed a Freedom of Information Act request seeking to shine light on the decisions that led to criminal charges against several former state officials, including former Governor Rick Snyder, and drama that unfolded while the team faced setbacks until the prosecution ended in 2023.

Snyder was charged with a misdemeanor. Former Department of Health and Human Services Director Nick Lyon, former chief medical executive Eden Wells, former Flint emergency managers Gerald Ambrose and Darnell Earley, former Snyder chief of staff Jarrod Agen, former Snyder aide Richard Baird, and DHHS early childhood health section manager Nancy Peeler were each charged with felonies.

The request asked for email and text message communications between former Chief Deputy Attorney General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy from the moment the Flint prosecutorial team decided to drop existing charges against state actors implicated in the Flint water crisis, to the days following the team's decision to close the case.

That period spanned from January 1, 2019, when the team was preparing to drop charges filed by a special prosecutor appointed by former Attorney General Bill Schuette, to October 1, 2023, when the new Flint prosecutorial team led by Hammoud and Worthy finally announced that the case was being closed – due mostly to the high court's invalidation of the charges because they were issued by a one-judge grand jury.

The department initially denied the request in part by withholding some documents and redacting whole emails initially sent to Gongwer (See Gongwer Michigan Report, March 6, 2024). The department later released additional unredacted documents to Gongwer following an appeal.

Among emails delivered to Gongwer following the appeal is an October 2022 email from Worthy to Hammoud and former Wayne County Assistant Prosecuting Attorney Molly Kettler, who joined the Flint criminal team along with her boss in Worthy.

The email came months after the high court punted the cases in a unanimous opinion, in which former Supreme Court Justice Bridget McCormack equated the one-man grand jury to "a Star Chamber comeback." The line references the court 15th Century English court established by King Henry VII that became synonymous with backroom secrecy, arbitrary decisions and oppressive outcomes for those implicated in both criminal and civil matters.

McCormack ordered the lower courts to dismiss the indictments, which they followed.

The invalidation of the one-judge grand jury system in the Flint matter was a particularly heavy blow to Worthy and the Wayne County court system, as she noted in statements following the high court's opinion that the county had used it in complex cases where investigative targets and witnesses go silent from fear of retribution.

Worthy's email to Hammoud and Kettler sent October 5, 2022, expressed her displeasure with the high court's decision. It also detailed her wish to continue with the prosecution by taking the case back to the probable cause and preliminary examination phase – a scenario that never transpired because the team would less than a year later announce that the case was closed.

The longtime Wayne prosecutor starts with an aphorism about an elderly family member teaching her at an early age "to tell the truth and do the right thing," and that is why she joined onto the case when Nessel asked her to assist in the matter. Nessel was handling the civil case in federal court and built a conflict wall around herself and the criminal investigation, which led to Hammoud and Worthy taking the reins.

"A city was poisoned. They could not trust their water supply. The previous investigation was flawed, and we have told that story many times. And yes, as almost always that city was heavily a city of color. And how many times had nothing been done to hold people accountable – almost never," Worthy wrote. "We assembled a talented team of lawyers with a combined over 150 years of experience that cared about what was going on in Flint."

From there, Worthy picks apart the opinion, asserting that the team "did not, as referenced in the MSC decision, 'take a short cut,' nor did we employ incorrect law or procedure."

"And as a reminder, even before we petitioned for this lawful process, millions of pages of documents were examined that had not previously been examined," Worthy said of the decision to drop the previous Office of Special Counsel charges to begin a new investigation. "Search warrants were executed, and hundreds of pieces of new evidence (were) discovered – including over 600 cell phones. We also dismissed some cases that had already been charged because they did involve a full investigation into all of the deaths."

As to the one-man grand jury, Worthy reiterated her belief that the authority used to indict Snyder and others "has been a part of the Michigan judicial system since 1917 – for over 100 years – and the Michigan Supreme Court has repeatedly upheld its constitutionality."

"It has been used over the years by offices across this country – including here in Wayne County mainly in highly sensitive and dangerous cases where witnesses were literally afraid of being killed, drive by and gang shootings, and gruesome child deaths just to name a few examples," Worthy wrote. "It has been a great tool to reduce very violent crime and get to the truth in other cases such as this one. Again, the process has been upheld by the MSC throughout time and memorial. It has been a great tool to reduce very violent crime and get to the truth in other cases such as this one. Again, the process has been upheld by the MSC throughout (time immemorial)."

That said, Worthy expressed her belief that the one-judge grand jury was a longer path "to the truth" than a complaint and warrant, which she said was the opposite of a short cut.

"In fact, we were in court daily and on weekends for a full year when no other court in Michigan was in session. By law, I cannot go any further as to what was done during this process, but all of the defense attorneys have all of the materials that was generated," Worthy wrote. "I should also mention that one does not just show up one day and start this process. Steps much be taken and ultimately it must be approved by a circuit judge. So, though the Department of Attorney General petitioned for this process, the final de union rests with a judge."

As for a potential path forward, which became a talking point from the department and the prosecutorial team following the high court's ruling, Worthy said that since only the indictments were invalidated, the warrants remained valid and there was a process for that as well.

She also advised Hammoud and Kettler to read the process outlined in the talking points.

"Per the language (of) the statutes and the court's decision in the Peeler case: A one-man grand jury finds probable cause; issues an arrest warrant; (and) the charges proceed directly to a preliminary exam," Worthy wrote. "So, we can still proceed with these prosecutions based upon the arrest warrants issued by the grand juror."

Months later, in late December 2022, the Court of Appeals dismissed Worthy's and Hammoud's attempt to appeal the dismissal of charges against Lyon. The other defendants also argued for the court to affirm the high court's ruling, asserting that the state bungled the prosecution and unconstitutionally issued indictments against them using a one-person grand jury.

The order signed by Judge Sima Patel wrote that the panel was unable to grant relief when the circuit court implemented an explicit directive from the Michigan Supreme Court. A pair of separate motions for expedited proceedings and supplemental briefing filed by the department were therefore denied as moot given the dismissal of the appeal.

The charges filed against them by the attorney general's office stopped moving forward at this point.

Around this time, Snyder's charges were dismissed by a Genessee Circuit Court judge, and the team said then it was also mounting an appeal on that front.

On September 20, 2023, the high court again upheld the decisions of the lower courts to dismiss the felony charges, declining to hear Hammoud's and Worthy's appeals.