(CN) — More than nine months after charges were filed against former Michigan Governor Rick Snyder for his role in the water crisis that poisoned Flint residents, a state judge heard arguments involving attorney-client privilege in millions of documents that are part of the upcoming trial.
In a hearing before Genesee County District Judge William Crawford that began last week, Snyder’s lawyer Brian Lennon of Warner Norcross + Judd was adamant about what he called a massive breach of confidential information.
“You don’t have to be a lawyer or judge to know that prosecutors should not review or use either directly or derivatively a defendant’s attorney-client privileged information,” he said.
He added: “It’s difficult to think of a scenario more outrageous than what we have here. [Prosecutors] executed search warrants for the files and documents in possession of their attorney colleagues on the opposite side.”
Lennon claimed the seized documents included Snyder's privileged communications with his chief legal counsel and and with his civil assistant attorneys general while he was in office.
“Governor Snyder’s privileged communication with me and my team from Warner Norcross and Judd in this case on this matter from as early as 2016 has been in the procession of the prosecution without having been reviewed by a taint team," the attorney said, referring to people who inspect discovery documents for privileged information.
After those remarks, the hearing was delayed for a week due to technical difficulties that derailed the Zoom-based proceedings. When it resumed Wednesday, it was held in a courtroom in-person for the first time since the willful neglect charges were filed against Snyder.
Lennon continued his call for an evidentiary hearing at the outset and hinted that the discovery documents were not secured.
“There were no affidavits about how these documents were handled,” he said. “This was a deliberate intrusion.”
Michigan Assistant Attorney General Chris Kessel questioned the relevance of the argument and challenged Lennon to provide an example of malfeasance.
“Mr. Lennon can’t point to any fact where his case was harmed,” he said. “They have to show there was a deliberate intrusion.”
Kessel admitted prosecutors possess a huge amount of evidence, but explained that in today’s age of computers it was necessary to seize it all.
“All we are doing is possessing it,” he explained, noting that it was common to capture laptops, social media posts and phones in criminal cases.
“I’m having a hard time wrapping my head around this,” Crawford interjected. “What did you do with the information?”
Kessel said he understood the judge’s concern but argued there was no wrongdoing.
“At this point [Lennon] has been unable to point to anything improper,” he countered.
Assistant Attorney General Keisha Glenn spoke up to note that the original indictment returned from a grand jury did not contain any of the privileged information.
Crawford said he was leaning towards granting an evidentiary hearing but was reluctant to issue an order immediately since the case was technically still pending in an appeals court as a dispute over jurisdiction plays out.
Crawford remarked in June that he was stunned the appeal was taking so long.
“We have to start moving with this case,” he said.
“I do have concerns [about the evidence], but I do also believe in judicial economy,” the judge said earlier, in late March. “If it goes the distance, this case will be here two or three years. Whether it’s my or another court, it’s going to be a lot to handle.”
Lennon voiced his frustration in June that he had only seen 4 million documents in discovery and was told there were more than 19 million in total.
“This is a mess, your honor,” he told the judge. “The basic stuff we asked for, we don’t have.”
But prosecutor Bryant Osikowicz had little sympathy for Lennon’s plight.
"He had no problem staying this case…now all of the sudden he needs all this discovery right away. If he as a problem with it, file a motion and we can address it in court," he said at the time.
In January, Snyder appeared in court to plead not guilty to the charges against him. Crawford ordered the former governor not to leave the state without permission and set a personal recognizance bond at $10,000 for each of the two counts.
The Flint water crisis began in April 2014 when a state-appointed emergency manager switched the city’s drinking water supply from Lake Huron water treated in Detroit to Flint River water treated at the Flint Water Treatment Plant. Michigan Department of Environmental Quality officials admitted they failed to require corrosion-control chemicals as part of the water treatment process.
Flint switched back to the Detroit water system in October 2015.
In his 2016 State of the State speech, Snyder addressed the people of Michigan with a quivering voice as he apologized repeatedly for the moves that led to the crisis.
“I’m sorry, and I will fix it,” Snyder said at the time. “Government failed you – federal, state and local leaders – by breaking the trust you placed in us.”
The move to switch water supplies was a cost-cutting one, taking filtration responsibilities from the Detroit Water and Sewage Department and reassigning it to a city plant.
The water was not treated properly, however, and lead pipes infected the supply. Flint residents quickly complained of strange-tasting water but city and state leaders continued insisting that the supply was safe. Months later, researchers began publicizing high lead levels in the blood of Flint children.
Earlier this summer, Flint Mayor Sheldon Neeley updated residents on an infrastructure project for a secondary water pipeline connection to the city’s water source Lake Huron. The project ensures an alternative water delivery system in case there is an emergency disruption to the primary one.
“We are making great progress toward building a stronger and safer infrastructure of the city’s water system,” Neeley said. “This secondary water pipeline project provides the city with two water delivery systems guaranteeing that Flint will never use Flint River water again.”
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