Could charges actually lead to prison time in Flint?

Prosecutors will try to prove five Michigan officials were responsible for a Legionnaires’ death because they knew about the problem, but failed to warn the public. Similar cases of environmental disasters have not resulted in convictions, but there are reasons Flint could break the mold.

By Talia Buford
ProPublica

Last week, Michigan’s top prosecutor announced that five officials, including the state’s Health Department head Nick Lyon, will face charges of involuntary manslaughter for a death resulting from the Flint water crisis.

It’s a move virtually unheard of in modern American history; legal experts couldn’t point to a single case in which government officials were charged in a citizen’s death because they knew about a problem but failed to warn the public.

Almost immediately, news of the charges sent ripples through the community of Flint, where residents like Melissa Mays, 38, still go door to door delivering bottles of water to their neighbors.

“We still have to take care of each other,” she said. “It’s still the poor and poisoned people taking care of the poor and poisoned because the state won’t do it.”

Flint’s water problems began in April 2014, when the city, in an attempt to save money, switched the town’s water source from Lake Huron to the Flint River. In the switch, officials failed to add a $200-per-day anti-corrosion agent that would coat the city’s antiquated pipes. The omission would prove disastrous as lead from the pipes began to leach into the water that flowed out of the tap, endangering thousands of children. Officials asserted it was “safe to drink,” above the outcry of residents who suspected the brown, odorous water was contaminated.

The first outbreak of Legionnaires’ disease — a serious type of pneumonia caused by Legionella bacteria — hit by summer. According to the water crisis interim investigation report released last week, Lyon and others knew about outbreaks for nearly a year before the public was notified and an emergency was declared. In all, a dozen people died from Legionnaires’ disease, though residents suspect there may be other victims who were never tested for the bacteria.

While some see the severity of the charges as a sign that someone may actually be held accountable for the contamination, Mays is skeptical. She points to former state epidemiologist Corinne Miller, who was originally charged with felonies for failing to tell Flint residents about a Legionnaires’ disease outbreak. Miller’s felony charges were dropped, and as part of a deal with prosecutors in March, she pleaded no contest to a misdemeanor. Her punishment: Writing a letter of apology.

“People keep asking if I was shocked that the charges weren’t enough, but that’s what we’ve come to expect from the state,” Mays said. “Everything so far has been slaps on the wrist.”

An involuntary manslaughter conviction in Michigan carries a potential sentence of up to 15 years in prison and a $7,500 fine. But how likely is it that anyone charged with involuntary manslaughter in this case will see any jail time?

It’s more common to find cases internationally where government officials were charged and convicted in deaths resulting from disasters, said Denis Binder, a Chapman University law professor who studies criminal prosecution in disasters of all kinds, including oil spills, plane crashes, building collapses and earthquakes.

In 2012, an official from Italy’s Civil Protection Department was convicted of manslaughter — and eventually given a two-year suspended sentence — for downplaying the risks from earthquakes in L’Aquila a week before one killed more than 300 people. And in 2010, the mayor of La Faute-sur-Mer, a village in western France, was given a two-year suspended sentence for manslaughter after Cyclone Xynthia caused flooding that killed 29 residents who had built their homes in a zone where officials should have barred construction.

The Justice Department could not readily say how many individuals here in the United States have been convicted for environmental crimes. But after consulting with experts, news archives and academic reviews, ProPublica found that convictions related to deaths tend to hinge on a more direct line of responsibility. Take Richard Smith, pilot of the Staten Island Ferry in 2003. He passed out at the helm of the 3,000-ton boat after taking painkillers, causing a crash that killed 11 people. Smith served 15 months in prison; his supervisor was sentenced to a year and a day for failing to enforce a rule that required two pilots to be in the wheelhouse as the boat docked.

But causing deaths by doing nothing to stop them?

In these kinds of environmental disaster prosecutions, convictions and prison time have proven elusive.

Elusive Convictions

To understand why, ProPublica talked to experts — former environmental prosecutors and Environmental Protection Agency officials, lawyers and academics — and looked at three federal cases in which individuals were charged in the deaths of people. None of the cases ended in convictions for those deaths.

The 2010 Deepwater Horizon explosion — the largest oil spill in American history — dumped an estimated 4 million barrels of oil into the Gulf of Mexico and left 11 workers dead. Initially, the Justice Department pinned the blame on two well site leaders — Robert Kaluza and Donald Vidrine — for not notifying engineers that pressure tests showed the well they were drilling was insecure. Unaware of the failed tests, workers continued to drill, leading to the ensuing well blowout and explosion. Kaluza and Vidrine were each charged with 11 counts of felony seaman’s manslaughter and 11 counts of involuntary manslaughter, as well as violating the Clean Water Act. The manslaughter charges carried maximums of 8 to 10 years in prison, but neither man would serve a day.

The felony counts were dropped in 2015 as the Justice Department said “circumstances surrounding the case have changed” and it could no longer meet the legal threshold for involuntary manslaughter charges. Vidrine, who died earlier this month, agreed to plead guilty to a misdemeanor Clean Water Act violation and was sentenced to 10 months of probation, 100 hours of community service and a $50,000 penalty. Kaluza fought his misdemeanor charge and in 2016, a jury cleared him of any wrongdoing. Ultimately, BP Exploration and Production Inc. pleaded guilty to felony manslaughter and several other environmental crimes, agreeing to pay $4 billion in fines and penalties. As a part of the settlement, money was set aside to help the affected communities recover from the oil spill.

It’s common for companies to accept responsibility, in the form of financial penalties, for their employees in environmental disasters.

“If there are individuals in the crosshairs of government prosecution, there’s a pretty strong inducement for the company to kind of, take the wrath,” said Scott Fulton, a former high-ranking EPA official and former assistant chief in the DOJ’s environmental enforcement unit. “There’s a dynamic where the company, out of desire to protect its people, will be willing to take a guilty plea as a means of accomplishing that.”

The Flint case is different, said Pat Parenteau, a former EPA lawyer now at the Vermont Law School’s Environmental Law Center. Without a corporation to take the fall, the governor, as head of the executive branch, would have to be the one to step in to shield the officials.

“Not a chance,” Parenteau said. “You won’t see the governor or legislature stepping in front of the bullet and taking the fall. These five officials will either go to trial or plead out. They’re on their own.”

Michigan Attorney General Bill Schuette said investigators sought to interview Gov. Rick Snyder as a part of the water crisis probe, but were unable to do so. Gov. Snyder’s legal counsel, Brian Lennon, said Snyder has “always been willing to talk with the Office of Special Counsel under oath like every other witness,” but he never got a subpoena.

After the charges were announced, Snyder released a statement giving Lyon and another top official charged in the crisis, state Medical Executive Eden Wells, his “full faith and confidence,” after the charges were announced, calling them “instrumental in Flint’s recovery.” He also said Lyon and Wells will remain in their jobs.

“If he wanted to say ‘they’re following my directions,’ he could,” Parenteau said. “But he’s doing quite the opposite. He’s saying he thinks they’ll be vindicated and in doing so, he’s defending his own lack of action in the case.”

Gov. Snyder’s office pushed back against this statement when ProPublica asked him to respond to it. “The Governor did not fail to act,” said Anna Heaton, Snyder’s press secretary. “He has explained many times, including under oath and publicly to Congress, the timing and sequences of events as to what he knew, and when, and all of the actions he took in response. Further, these are allegations at this point. Everyone is innocent until proven guilty in a court of law.”

In another environmental disaster case, an individual was found guilty of manslaughter and sentenced to prison. But that conviction was overturned by a legal rule that allows defendants to avoid a criminal conviction if they win a civil case based on the same facts.

In 2005, Dennis Michael Egan was the captain and owner of a petroleum barge that exploded in the Chicago Sanitary and Ship Canal after crew members used a handheld torch to thaw a pump. One crew member died. A judge, in a bench trial, convicted Egan for negligent manslaughter of a seaman, finding that he “knew that the crew occasionally used an open flame to heat the cargo pump but nonetheless permitted the crew to engage in the illegal and unsafe practice,” according to the Justice Department.

Egan was sentenced to six months in prison, but an appellate court overturned his conviction, because in a previous civil trial, prosecutors had failed to prove that the victim was using a propane torch, or that Egan had ordered him to use a torch at all.

That probably won’t happen with the Flint case, Parenteau said, because it’s unlikely that any of the ongoing civil cases will seek to prove the same elements necessary for an involuntary manslaughter charge. There are multiple pending civil lawsuits pegged to the water crisis, including a class action suit seeking $1.1 million in personal and property damages from the EPA for failing to take quick action. “If two cases have different legal issues, then they’re just different,” he said.

As with Flint, news coverage drove public attention and, ultimately, prosecutors to Libby, Montana.

The small mining town produced much of the world’s vermiculite — a mineral used in concrete and insulation, among other things, because it “expands like popcorn when heated,” according to the Justice Department. A 1999 investigation by the Seattle Post-Intelligencer found elevated levels of asbestos-related disease among Libby residents and alleged that the mine’s owner — W.R. Grace & Co. — knew the mines had been contaminated with asbestos since the late 1970s and said nothing.

By the time the Grace company and seven executives were indicted for knowingly endangering the town, hundreds of Libby residents had died and another 1,200 residents were sick from asbestos-related issues. Unlike involuntary manslaughter, the Clean Water Act violation of knowing endangerment is used for instances in which defendants knew they were placing “another person in imminent danger of death” or harm.

Government investigators found that people were 40 to 60 times more likely to die from asbestos-related disease if they lived in Libby than anywhere else in America. Prosecutors presented documents they said proved officials knew about the health hazards, but kept them secret, so the company could keep making money. The defense argued the company inherited the asbestos problem and worked for years to clean it up.

At the end of the three-month trial, the company and its executives were acquitted of criminal charges. Town residents were shocked. They ultimately received compensation and health care from a combination of government and court actions, including a Grace company bankruptcy case and a provision in the Affordable Care Act.

In a place like Libby, where Grace was such a big part of the town, Parenteau said he could imagine there might have been jurors who were sympathetic to the company.

“But not in Flint,” he said. “Not for state officials. Not among the public and the people most affected by this — or almost anybody who has paid attention to this. I can’t imagine these state officials getting any sympathy.”

Uncharted Waters

As environmental crimes go, the levying of felony involuntary manslaughter charges against high-ranking state and city officials has put the Flint water crisis investigation squarely into new territory. Unlike the three other cases ProPublica explored, the charges in Flint are state actions. The U.S. Attorney for the Eastern District of Michigan has confirmed an investigation into the water crisis.

“I’ve certainly never heard of a charge this serious,” Parenteau said. “My goodness — for failing to warn people.”

In addition to Lyon, involuntary manslaughter charges have been made against former Flint Emergency Manager Darnell Earley, former City of Flint Public Works Director Howard Croft, Michigan Department of Environmental Quality Drinking Water Chief Liane Shekter-Smith and Water Supervisor Stephen Busch. All of the charges are tied to the death of Robert Skidmore, 85, who died from Legionnaires disease in December 2015.

Nayyirah Shariff, director of Flint Rising, a coalition of community organizers on the ground in Flint, said the charges were “troubling, infuriating and a disgrace,” since they failed to implicate Michigan’s governor directly.

“Many of the individuals charged [Wednesday] answered directly to Gov. Snyder,” Shariff said in a statement. “Enough is enough. Gov. Snyder needs to resign immediately and the people must know what he knew and when he knew it. Gov. Snyder must not be immune from accountability.”

Investigators said they stopped short of filing charges against Snyder because they hadn’t found probable cause to do so. Schuette said investigators will continue to follow evidence but are now shifting focus toward prosecuting the criminal charges they have filed.

Flint has never had it easy. The hardscrabble middle-class city, built on the back of the automotive industry, has seen populations decline over the years, factories demolished and crime spike. Today in Flint, 41 percent of residents live in poverty and the median household income hovers just below $25,000. After the water crisis, home values plummeted, leaving many without the means to leave the city. And while Congress and the state have given $127.5 million to upgrade Flint’s infrastructure, that process will address only part of the problem.

Mays, who lives on Flint’s west side with her three sons, said the charges for the Legionnaires’ disease deaths, while important, don’t address the long-term effects Flint residents will face.

“It’s great that they might get punished, but we need pipes, we need medical care,” she said.

This crisis is not of Flint’s doing. At the time of the water switch, Flint was under the control of an emergency manager — an official appointed by the governor with the authority to make unilateral decisions about the fate of the city’s finances, including where it sourced its water. Citizens — including the City Council and the mayor — had no say in the matter. Many believe the level of disenfranchisement seen in Flint would have never happened in more affluent cities.

“The people of Flint lost their democracy and their voice,” said Leslie Fields, national environmental justice director for the Sierra Club. “Now there’s this disproportionate effect. It’s the cumulative impacts and the stress. It’s not just about the water. People have to go to these extraordinary lengths — how do you bathe kids in bottled water?”

Advocates say criminal prosecution isn’t a cure-all, but it could signal to the people of Flint that their concerns are finally being taken seriously and that people are being held accountable.

From the outside looking in, Schuette’s investigation seems designed to do just that. In addition to the charges, Schuette also released an interim report of the five-month investigation into the Flint water crisis, subtitled “the most comprehensive investigation in Michigan history” and concluding that the ordeal was a “failure of leadership” and a “man-made disaster of significant proportions.”

But in Flint, distrust runs deep.

“If someone dies on your watch, that’s on you,” Mays said. “Everyone needs to be charged. It’s not justice until that man [Snyder] is hauled off in handcuffs.

“I’d like to see all of these people who are charged put in Flint jail, so they have to shower in Flint and be forced to live in Flint,” she said. “Maybe if they lived here, things would get fixed.”

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