Court hears challenge to grand jury in Flint water cases

DETROIT (AP) — The Michigan Supreme Court heard arguments Wednesday that could wipe out charges against former Gov. Rick Snyder and eight others in the Flint water scandal, as lawyers challenged a rarely used, century-old method to investigate crimes and file indictments.

It's the most significant attack by the defense in the 16 months since Snyder and others were indicted by Judge David Newblatt, who served as a one-person grand jury in Genesee County with evidence offered in private by the attorney general's office.

People charged with felonies in Michigan typically have a right to a hearing to argue there's not enough evidence to send a case to trial. But the one-person grand jury process doesn't allow it: If a judge decides to indict, the case moves directly to the trial court.

John Bursch, a lawyer for former state health director Nick Lyon, said the constitution's separation of powers is violated when a member of the judiciary decides who gets charged.

“Because a judicial indictment is not only an oxymoron but a structural error, the only proper remedy is dismissal. ... Judges are umpires who call balls and strikes,” Bursch said, quoting U.S. Chief Justice John Roberts. “They are not in the business of throwing the ball or swinging the bat, because to do so changes their role.”

Chief Justice Bridget McCormack seemed most troubled by the one-person grand jury, which was created in 1917 but has rarely been used in recent years, mostly only in Genesee and Wayne counties. She described Bursch's arguments as “compelling.”

“If the judge is just investigating, I don’t hear Mr. Lyon to be complaining about that,” McCormack said. “It's when the judge also gets to make a charging decision, which is an executive branch decision, that the constitutional problems arise,...