DETROIT — A federal judge on Monday denied motions to quash subpoenas requiring testimony by former Michigan Gov. Rick Snyder and others criminally charged in the Flint water crisis case in a civil trial underway involving the city's engineering consultants.
But U.S. District Judge Judith Levy set a Friday hearing when the attorneys representing the governor, former top Snyder aide Richard Baird and others can argue about whether the defendants can be asked questions beyond those they answered in their civil depositions. The judge indicated the scope of their waiver of their Fifth Amendment right against self-incrimination during civil litigation testimony "will be narrowly construed.”
Snyder, Baird, former Flint emergency managers Darnell Earley and Gerald Ambrose, and former city public works director Howard Croft have been trying to avoid testifying in the Flint water civil trial because they could be subjected to questions that overlap with their criminal cases related to the lead-contaminated drinking water and Legionnaires' disease cases.
The trial is to determine if engineering contractors Veolia North America and Lockwood, Andrews & Newman, known as LAN, bear responsibility for lead-contaminated water in Flint. The engineering firms have made it clear in the opening arguments of the trial they plan to pin the blame on state and Flint government officials motivated by "arrogance," "callousness" and "bureaucratic contempt" toward Flint.
The five defendants all gave depositions in mid-2020 in which they didn't invoke their Fifth Amendment right against self-incrimination and before unsealed indictments against them were revealed in January 2021. If called, they wanted to be use their Fifth Amendment right against self-incrimination.
The attorneys for the defendants emphasized during last week's hearing that if they are to testify again in the civil case, they would put themselves in danger of potentially more criminal charges. They also argued the defendants didn't know they were in danger of being charged either for the first time or again after Michigan Attorney General Dana Nessel's office in June 2019 dropped charges against eight defendants — including Earley, Ambrose and Croft — after deciding it needed to restart the investigation to ensure is was "full and complete."
But Levy rejected their arguments.
"Each of the movants voluntarily testified during the deposition phase of this case, and now wishes to invoke the privilege against self-incrimination on the same subject matter. They cannot do so," the judge wrote.
“Case law and the common meaning of ‘proceeding’ both suggest that a civil deposition and trial in the same case are part of the same proceeding," Levy wrote. "Movants’ testimony during their civil depositions therefore constituted a waiver of their Fifth Amendment rights for the duration of this proceeding as to the subjects addressed in their depositions.”
Nessel's office has charged Snyder with two misdemeanor courts of willful neglect of duty connected to Flint's lead-contaminated water crisis, while Baird, Earley and Ambrose are facing other charges.
One count says Snyder failed to declare a state of emergency or disaster, although he was notified of a threat of an emergency or disaster in Flint. Snyder did eventually declare a state of emergency in January 2016 — three months after he had Flint shift its water source back to Detroit's regional water system.
The other count says Snyder failed to inquire into "the performance, condition and administration" of officers whom he appointed and was required to supervise under the state constitution. Legal experts say this likely refers to the state-appointed emergency managers who were in place in Flint and working under Snyder.
Baird was charged with perjury during an investigative subpoena investigation, misconduct in office, obstruction of justice and extortion in relation to the Flint water case. Earley was charged with three counts of misconduct in office, while Ambrose was charged with four counts of misconduct in office.
Croft faces the same charges as Snyder — two counts of willful neglect.
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