Tagged: indictment

Just the Beginning: Prosecutions in the Flint, Michigan Water Crisis

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

The contamination of water in Flint, Michigan, although still shocking and deplorable, is hardly a recent story. Rather, it has been a disaster years in the making, starting as early as three years ago when The Detroit Water and Sewage Department sent a notice to Flint that its water service contract would be expiring within the year and the city would have to find an alternative source for water. After switching their water source from Lake Huron to the Flint River the following year, for which the city did not prepare by preventing corrosion and lead from leaching into the pipes, the residents of Flint soon began complaining about the water quality. Despite complaints about the “peculiar colors and odors,” fecal coliform bacteria present in some neighborhood’s water, and the extra chlorine treatments that increased levels of other contaminants, Flint officials seemed unconcerned. In July 2014, city officials stated that

[t]his is not an emergency. If a situation arises where the water is no longer safe to drink, you will be notified within 24 hours.

Throughout 2015, various warnings emerged. The total trihalomethane (TTHMS), “a disinfectant byproduct that can cause liver and kidney problems” had exceeded federal limits, and the University of Michigan began testing Flint’s water and detected amounts of lead from drinking fountains in their older buildings. The Michigan Department of Environmental Quality (DEQ), along with the Environmental Protection Agency (EPA), began looking into the problem and discovered Flint’s water source did not contain adequate corrosion control to prevent lead in the pipes. However, both the DEQ and Michigan governor Rick Snyder, insisted the problem was not widespread. Meanwhile, more and more residents voiced their concerns, as people were becoming inexplicably ill from lead-poisoned water. It is estimated that there are at least 8,000 children under the age six who may have been exposed to lead in Flint’s water, a contaminant that causes irreversible damage to developing brains and nervous systems.

By the end of 2015, the cries for help from Flint residents could no longer be ignored, and the story garnered nationwide attention. Unable to rely on its water for consumption, many people from all over the country continue to donate bottled water to the city, while celebrities and activists have brought much-needed attention to the crisis. However, the most obvious question still lingers: Who is responsible for this catastrophe? 

The Flint Water Advisory Task Force, an independent panel, had found that the state’s slow response to its water contamination stemmed from its “disregards for the concerns of poor and minority people,” which make up the majority of Flint’s population. State employees, analysts, emergency managers, and even the governor’s office, were found to have ignored the persistent outcries from Flint residents. The panel, in a 116-page report, found that “bureaucratic indifference” both caused and prolonged the crisis, with fault attributed not only to local Flint officials but also to the EPA. The report concluded that this was a clear case of “environmental injustice.”

Now, months after the report, and nearly two years after the switch of water sources, a criminal indictment has finally been filed against three individuals alleged to have contributed to Flint’s water contamination. Mike Glasgow, a city employee who ran the Flint water treatment plant, was charged with evidence tampering and willful neglect of duty for filing false reports on the city’s water quality, while Stephen Busch, DEQ’s district supervisor, and Michael Prysby, a former engineer at DEQ, “were charged with misconduct, evidence tampering, conspiracy and violations of the Safe Water Drinking Act for allegedly altering water test results.” City officials lauded the indictment as a victory in accountability.

However, high-ranking officials are notably absent from the indictment. Governor Rick Snyder, despite factual findings that he prolonged the crisis, was not even questioned during the investigation. The water contamination was proven to be caused by widespread negligence and disregard – shouldn’t the indictment more accurately reflect the breadth of individuals that were responsible in the first place? Were the indicted men acting independently? Or were they merely taking orders from higher ranking officials? If the relatively lower-level employees of the water treatment plant and the DEQ are held responsible, what does that say about the culpability ‘up top’? Flint’s water crisis was obviously caused by mismanagement, whether negligent or purposeful, at all levels. But when indictments are only doled out against a select few in the lower ranks, it is likely that the scope of the investigation is limited. Many are predicting that this is only the beginning of criminal prosecutions, assuming that the investigations of low-level employees will lead to the bigger root causes. The problem, however, is when the investigations come to a dead end, because higher-ranking officials have isolated themselves from any consequences.

The indictment of anyone in this environmental catastrophe is obviously a move in the right direction. However, it is far from over. Rather than taking solace in the fact that someone will be held criminally liable, it is important for us – the public, the media, the citizens of this country – to make sure everyone is held accountable for this crisis.

Related Readings:

Tired of Corruption? Hold On … A Possible Cure by Constitutional Convention

POST WRITTEN BY: John A. Vitagliano (’17), J.D. Pace Law School

U.S. Attorney for the Southern District of New York Preet Bharara has criticized New York’s political culture, where

deal-making has long been done in Albany by ‘three men in a room’ (the governor, the State Assembly speaker and the State Senate majority leader), who work in secret and without accountability to decide [the states] most vital issues.

On May 12, 2015 New York Senate Majority Leader, Republican Dean Skelos vacated his post amidst a criminal complaint filed for federal charges involving fraud, extortion, and solicitation of gratuities and bribes.

On January 21, 2015, the Former Speaker of the New York State Assembly Sheldon Silver, Assemblyman since 1976 and continuously re-elected speaker since 1994, was indicted on several criminal corruption charges using his political power and influence that netted him $4 million in payoffs.

Mr. Silver, a Democrat from the Lower East Side of Manhattan, was accussed of steering real estate developers to a law firm that paid him kickbacks. He was also accused of funneling state grants to a doctor who referred claims to a second law firm that employed Mr. Silver and paid him fees for referring clients.

Mr. Silver has resigned from his position as Speaker and is currently awaiting trial to defend himself against the federal charges. The exposure of Mr. Silver’s conduct brings Governor Andrew Cuomo’s termination of the Moreland Commission back into the spotlight. The anti-corruption panel was set up to investigate public corruption in New York State and was disbanded after it began looking at the behaviors of certain law firms tied to the governor and Mr. Silver.

Over the past few years, the New York Legislature has been infested with corruption and political misconduct. On February 5, 2015, Mr. Silver and former New York State Assemblyman, Vito Lopez, settled a sexual harassment lawsuit for $580,000 using state funds to pay over 90% of the settlement. William Scarborough resigned from his position and plead guilty to corruption charges in April 2015. Bronx politician Nelson Castro was sentenced to two years probation and 250 community service hours after pleading guilty for lying to investigators. Due to Castro’s cooperation, Eric Stevenson was convicted and sentenced to three years in prison for accepting bribes from businessmen in May 2014. In October 2014 Gabriela Rosa was sentenced to a year in prison after pleading guilty for making false statements in a bankruptcy petition and lying to authorities regarding her marital relationship. William Boyland was convicted in March 2014 on federal charges including bribery, extortion and mail fraud. In February 2014, Malcolm Smith was found guilty of conspiracy, wire fraud, bribery, and extortion when he attempted to scheme his way onto the ballot. In July 2014 Thomas Libous was indicted for lying to federal agents in regards to abusing his political influence in order to obtain a job for his son. In 2013 Pedro Espada Jr. was sentenced to five years in prison for stealing hundreds of thousands of dollars from a health care network he ran. In 2012 Nick Spano, after pleading guilty to a felony for filing fraudulent tax returns, served one year in prison.

Amidst all the public corruption and political misconduct in New York State, the question becomes – can we trust our elected officials? Regardless of political party, can the citizens of New York rely on politicians to uphold their offices with honesty and integrity? Do we really know if our representatives have the public’s interest at heart when they are conducting “business” behind closed doors? Given the recent developments the answer appears to be NO.

The apparent corruption in New York may engender a strong grass-roots movement for a State Constitutional Convention to assist in revamping our political system. Every 20 years, the New York Constitution mandates voters to decide whether to hold a statewide convention to change or amend the constitution and the government. The 2017 ballot will ask the voters if a State Constitutional Convention should be held. Most politicians oppose a constitutional convention because

it is feared that a convention might take steps to diminish the legislature’s institutional power or incumbents’ chances of re-election.

Citizens of the state with honest motives, ethics and morals would have the opportunity to run for delegates for the Convention to redesign the New York State government. While many obstacles would be met if a Constitutional Convention were to take place, it is a legitimate opportunity to rid the state of corrupt politicians.

Action should be taken in order to change the New York political system and restore the integrity of the State. If nothing changes, nothing changes; public corruption and political misconduct will continue to run rampant within our state and voters will only have themselves to blame.

Update: Proceedings for a Special Prosecutor in Ferguson

As we reported last week, a hearing was held on Friday, May 29 on the motion for appointment of a special prosecutor in Ferguson. After a contentious discussion the Judge Joseph L. Walsh III agreed to consider the expert affidavit of Prof. Bennett Gershman on the issue of prosecutorial misconduct in the grand jury.

Gershman complained about a “gross deviation from proper standards of conduct,” saying he never before saw prosecutors go to “extraordinary lengths to exonerate a potential defendant.”

Proceeding Seeking a Special Prosecutor in Ferguson

This Friday, May 29, 2015, a hearing will be held in Missouri State Court in the matter of  State of Missouri ex inf. Montague Simmons, et al., v. Robert McCulloch, St. Louis County Prosecuting Attorney, seeking appointment of a special prosecutor to investigate the St. Louis County Prosecutor’s conduct in the grand jury in State of Missouri v. Darren Wilson  (previously discussed here). The Wilson matter arose from the death of Michael Brown. After a grand jury presentation, the grand jury failed to indict Officer Wilson in the death of Mr. Brown.

Missouri has an interesting statute, Missouri Revised Statutes §§ 106.220–106.290, that allows a private citizen to bring an action for an investigation to determine if a sitting prosecutor’s conduct  constituted a failure to perform the duties of his public office. If so found, a special prosecutor would be appointed with authority to file a writ of quo warranto action seeking ouster of the sitting prosecutor from office.

The motion is supported by the affidavit of Prof. Bennett Gershman, from Pace Law School, who addresses the questions of serious misconduct in the presentation of the case to the grand jury.

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More on Grand Juries and the US Justice System

On December 5, 2014, as part of the HuffPost Live, Pace Professor of Law and Director of the Pace Criminal Justice Institute Lissa Griffin joined Roger Fairfax, Professor of Law at George Washington University, and the host Josh Zepps for a live discussion about the role and function of grand juries in the US justice system. Josh Zepps introduces the segment by saying that

[i]n the span of two weeks, two grand juries have failed to indict cops involved in the death of unarmed black men. Most counties don’t even have grand juries. Why do we? How do they work? And what can be done to fix our flawed legal system?

The two guests explain what grand jury is, how it operates, how it decides to indict, the role of the prosecutor during grand jury proceedings, and the lack of judicial involvement during this stage. The discussion further progressed to consider comparative perspectives, including the French, German, and English indictment procedures.