Snyder Flint Trial Defense: Go After Whitmer for Covid-19 Deaths – Bloomberg Law

Michigan prosecutors should charge their sitting governor for Covid-19 deaths if they want to pursue former Gov. Rick Snyder for his role in the Flint water crisis, Snyder’s legal team argued Tuesday.

For a heated hour-and-a-half, a lawyer from the Michigan attorney general’s office and Snyder’s (R) attorney debated whether his steps taken as governor were a criminal dereliction of his duty to protect the people of Flint from lead in their drinking water, or merely non-criminal discretionary acts of omission taken in Lansing.

To make his point, Snyder’s attorney Brian Lennon said that if the state is now prosecuting governors’ acts of omission the attorney general’s office needs to indict Gov. Gretchen Whitmer (D) for state policies that contributed to the spread of coronavirus in nursing homes, which account for 5,537 dead—roughly one-third of the state’s pandemic-related casualties

“If we had a governor that was sitting in her office in Lansing during Covid and she was allegedly not supervising Covid-19 response of her department heads in Detroit-area nursing homes, could a Wayne County Judge force her to inquire into the performance or supervise her subordinate officers? No,” Lennon, a partner in the Grand Rapids office of Warner Norcross & Judd LLP, said. “It’s also not about an alleged criminal act, but an alleged failure to act—nonfeasance.”

Snyder Strategy

The move is part of a Snyder strategy to dismiss or move his two-criminal-count willful neglect of duty indictment out of Flint, where he’d almost certainly face a jury containing some of the roughly 100,000 Flint residents impacted when state and local officials switched the city’s water source to the Flint River in 2014 to save money. The change created a public health crisis when residents were exposed to lead due to the corrosive water.

If he can’t get his case dismissed, Snyder wants to have the trial in Lansing, where Lennon said governors can be forced by courts to take certain actions. But that’s far too narrow a reading of a governor’s duty, Assistant Attorney General Bryan Osikowicz said, because Snyder traveled the state and the world representing Michigan.

“To claim that wherever he travels his duties remain behind in Lansing like some houseplant is illogical,” he said. “He did owe a duty to the City of Flint and its citizens, especially when he declared an emergency manager to rule over its affairs.”

Judge William Crawford said he would try to issue a ruling within seven days. Whitmer didn’t immediately respond to a request for comment about the analogy to her Covid-19 policies.

The case is Michigan v. Snyder, Mich. Dist. Ct., No. 21G-0046-SM, oral argument on dismissal held 3/9/21.

$202 Million In Attorneys’ Fees

Although the state is publicly fighting to keep its criminal case against Snyder alive, Michigan Attorney General Dana Nessel said she can’t intercede in what could be a massive $202 million payout coming to lawyers representing Flint residents in civil cases against the state.

On Tuesday, Nessel’s (D) office issued a release saying that terms of the landmark $641.5 million settlement prohibited the state from “weighing in” on the attorneys’ fee amount unless the U.S. District Court of the Eastern District of Michigan asks for it.

The plaintiffs’ attorneys filed their motion seeking the fees on Monday.

The case is In Re Flint Water Cases, E.D. Mich., No. 5:16-cv-10444, motion for attorney fees 3/8/21.

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