(Editor’s Note: One week before he died on February 4, retired U.S. District Judge Avern Cohn completed the following column, which we publish in honor of his wishes.)
By Avern Cohn
One of the many mysteries in the Flint water criminal cases is the way in which both sides are handling their squabble over the vast number of documents – said to number 17 million – that the prosecution has come up with during the process of discovery, which means looking for evidence in the various cases.
Some of these documents, defense lawyers are claiming, are “tainted” because to produce them as evidence would violate the attorney-client privilege rule.
Last November, Genesee Circuit Judge Elizabeth Kelly issued an order forbidding the criminal prosecution team in the case from reviewing or producing any of the documents seized until the prosecution can establish what’s called a “taint” team to check through the documents that may be privileged.
It is a long-established rule of law that communication between lawyers and their clients about a case are privileged, and can be kept totally confidential. On January 11, she told the prosecution that she would refuse to reconsider that order.
The cases, which stem from the crisis over lead in the city’s water are being prosecuted by the Michigan Attorney General’s office, and the history of that prosecution itself has been markedly unusual. A criminal investigation had been launched in 2016 by Bill Schuette, who had been state attorney general at the time. But shortly after Michigan Attorney General Dana Nessel took office in 2019, she fired Todd Flood and the prosecution team that had been working on the case.
Her solicitor general, Fadwa Hammoud, claimed that the Flood team had not done enough to find all the evidence, and appointed a new team.
How long it will take the prosecutors to appoint a taint team isn’t known, and how long it would take such a team to review and classify the millions of documents at issue is probably a complete mystery to all concerned.
But reading between the lines, it is clear that something else may be going on here. I’ve handled hundreds of cases where discovery was involved, both as a lawyer in private practice for 30 years and as a federal judge for 40 years.
And it seems to me that the way both sides have handled this case suggests that neither side is really interested in resolving the dispute. Why do I think that?
Consider: There is no list of the documents. There is no distinction between documents that are arguably relevant to the case from those that are irrelevant to the proofs in the case. There has been no attempt to categorize even those documents that are arguably relevant. Nor has there been any indication of identification as to which documents are relevant to which of the nine defendants.
What this says to me is that a fair reading of what’s going on is that the Attorney General, for whatever reason, has no interest in simplifying her position and the defendants are only interested in making life so difficult for the Attorney General and her prosecution team that the cases eventually will be dropped.
Time will tell if that is indeed the case. There are other interesting issues here; the defendants, as well as some legal scholars, question whether the prosecution was right to issue charges based on the findings of a one-man grand jury. Some, including myself, also question whether it was proper to appoint a local judge, Genesee County Circuit Judge David Newblatt, as the grand juror.
State circuit judges are elected, and Judge Newblatt will have to stand for re-election in the very community affected by the water crisis, and where voters are apt to be highly emotional about this issue and scrutinize whatever decision he made. Normally, every effort is made to avoid even any appearance of a conflict of interest in judicial matters.
What seems clearest of all is that the Michigan law allowing the establishment of one-man grand juries, a law that exists in this form in no other state but this one, is overdue for reform.
(Avern Cohn was a U.S. District Court judge for the Eastern District of Michigan from 1979 to 2019.)
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