FLINT, MI -- Flint water prosecutors are asking a judge to reconsider a requirement that they establish a taint team to filter evidence, saying such a process would cost taxpayers millions of dollars and could delay nine pending criminal cases for years.
Michigan Solicitor General Fadwa Hammoud and Assistant Attorney General Christopher Kessel filed the motion for reconsideration in Genesee Circuit Court on Friday, Dec. 10, asking Judge Elizabeth A. Kelly to reverse her November decision requiring the additional review of water crisis documents before they are distributed to attorneys involved in the cases.
If Kelly does not reconsider the decision, the motion asks that the judge issue a written order to clarify the materials that will require taint team review.
A taint team is a group of prosecutors and agents that is not connected to a criminal investigation and that reviews seized materials to determine whether the information is privileged and should be withheld from prosecutors.
“(When) the burden of a taint team is weighed against its slight benefits, establishing a taint team is not supported by good cause,” the motion from prosecutors says. “A more appropriate remedy, which would achieve the same benefits, would be to amend the current protective order to prohibit the use or derivative use of any proposed attorney-client privileged material.”
Prosecutors say they expect to produce roughly 22 million documents in the water cases that are pending against former Gov. Rick Snyder, former state Department of Health and Human Services Director Nick Lyon and seven other current and former city of Flint and state employees.
The new motion says many of the documents prosecutors have are unsearchable electronically because of the format of the records, making a review of them particularly onerous.
Prosecutors said a complete review of the records would require the state to hire 100 attorneys and would take almost three years to complete, assuming the lawyers work seven hours a day.
The job would cost an estimated $48 million, the prosecution’s motion says.
Kelly established the taint team requirement after attorneys for Lyon and other Flint water defendants complained that prosecutors were distributing documents during discovery that were protected by attorney-client privilege.
An attorney for Lyon argued in October that state prosecutors not using a taint team had resulted in illegally acquired attorney-client privileged documents landing in the hands of prosecutors, records that he said show the “roadmap to the defense of this case.”
Flint water prosecutors have acknowledged they did not use a taint team before disseminating documents during discovery and said in their motion that Kelly should reconsider requiring one because she “did not properly contemplate the burden and cost (to prosecutors) relative to the benefit.”
Attorneys are expected to next appear before Kelly at a hearing Jan. 11.
In addition to Lyon and Snyder, Flint water criminal charges are pending against Snyder’s former senior advisor Richard Baird, former DHHS Chief Medical Officer Dr. Eden Wells, two former Flint emergency financial managers -- Darnell Earley and Gerald Ambrose, former Snyder Chief of Staff and Communications Director Jarrod Agen; and Nancy Peeler, Director of the MDHHS Program for Maternal, Infant, and Early Childhood Home Visiting.
Former Flint Department of Public Works Director Howard Croft is also facing a misdemeanor charge related to the water crisis.
Read more:
Judge orders prosecutors to weed out privileged documents in Flint water cases
Attorney for Snyder says grand jury evidence against former governor may be ‘tainted’
Judge pauses discovery in criminal Flint water cases until ruling on motion