A Parade of Cliches

By on September 6th, 2018

Recently, Genesee District Court Judge David Goggins bound Michigan Department of Health and Humans Services Director Nick Lyon over for trial on charges of misconduct in office, willful neglect of duty, and involuntary manslaughter, charges resulting from the Flint water crisis.  The evaluations by the Lyon team of these rulings were immediate and vehement:

  • John Bursch, an attorney for Lyon, vowed an immediate appeal, stating that, “The circuit court and if not there, the Court of Appeals, are going to look at this (Judge Goggins’ ruling) and they are going to reverse so fast it will make your head spin.”
  • Referring to Judge Goggins’ comment that Lyon was corrupt in that he withheld information about the outbreaks of Legionnaire’s disease in Genesee County, former Michigan Department of Health Director James Haveman asserted that, “this was a political trial.”  Haveman later doubled down, stating that Judge Goggins’ corruption comment was “despicable.”
  • Lt. Governor Brian Calley tweeted that these were “political charges and a political decision.”  He went on to say that, “There won’t be a professional legal process until there is a change in venue.”  Calley had earlier referred to the charges that Attorney General Bill Schuette—not coincidentally, Calley’s then-opponent in the Republican primary for Governor—has brought against various state and local officials as “show trials.”

Rather obviously, the Lyon team did not expect Judge Goggins’s bindover ruling and when they lost they lashed out at the Judge and the criminal justice process itself.  I suggest that we overlook the fact that their comments were both sophomoric and cliched.  Rather, let’s consider them on the merits, within the context of the rights, privileges, and protections that our system accords to all those who face criminal charges.

A Defendant’s Rights

William Faulkner once said that, “The past is never dead.  It’s not even past.”  This is particularly true with regard to the criminal law.  From common law presumptions to the rights enumerated in the Constitution, from the various statutory enactments to the thousands of court decisions relating to the criminal law, across the years and down the decades we have woven a complex tapestry of protections for those accused of crimes.  These protections are grounded in the past, effective in the present, and extend seamlessly into the future.  In this country:

  • Every citizen is protected against unreasonable search and seizure and evidence produced in violation of that protection will not be admitted in court.
  • No citizen can be forced to incriminate himself or herself.
  • Every citizen, when an investigation turns to accusation, has the right to remain silent and to be provided with a lawyer.  If the accused is indigent, the lawyer will represent him at public expense.
  • Generally, every citizen accused of a crime has a right to a speedy trial.
  • Every citizen accused of a crime has a right to an unbiased judge and jury.
  • Every citizen accused of a crime has a right to see all exculpatory evidence (that is, evidence that would help the defendant) in the prosecutor’s possession.
  • Any guilty verdict against a citizen accused of a crime must be unanimous; if a single juror dissents, no guilty verdict can be returned.
  • In Michigan, every citizen convicted of a crime has a guaranteed right of appeal to the Court of Appeals.
  • From the beginning of a case until its end, every citizen accused of a crime must be accorded procedural and substantive due process.
  • And, most importantly of all, every citizen accused of a crime is presumed innocent until found guilty beyond a reasonable doubt.  Throughout the process, the prosecutor must prove every element of the case beyond such reasonable doubt.  By contrast, the defendant need prove nothing at all.

Evaluating the Lyon Team’s Evaluations

How do the Lyon team’s evaluations stack up within this context?  In a word, poorly.  Without saying so directly, Lyon’s supporters imply both that Judge Goggins was biased and that a fair trial would be impossible in Genesee County, the scene of the various crimes that the Attorney General has alleged.  

But prior to the Judge’s ruling, the defense team had not stated or even hinted that the Judge himself was in any way biased or subject to an actual or an apparent conflict of interest.  And the defense had made no motion for a change in venue or even suggested that such a change might be necessary.

Similarly, the Judge’s use of the word “corrupt” was not an indication of bias.  In Michigan, the crime of misconduct in office does not include acts done by officers in good faith nor does it include honest mistakes; rather the crime requires “evidence of corrupt intent.”  Judge Goggins was entirely within the proper legal framework when he referred to Lyon’s year-long overt withholding of information about the outbreaks of Legionnaires’ disease as evidence of Lyon’s corrupt intent. 

Lt. Governor Calley’s comment that there will not be “a professional legal process” until there is a change in venue is simply mystifying.  Calley makes no attempt to show how the Genesee District Court legal process that he now criticizes was unprofessional.  And, of course, it was not. 

The prosecution put on its case through a number of witnesses, these witnesses were cross-examined extensively, the defense put on its own witnesses, the parties briefed the legal issues, there were hours of oral argument, and the Judge meticulously set out the basis for his ruling.  Lyon was represented, at taxpayer expense, by excellent legal counsel.  He received every bit of process to which he was due.  No amount of generalized ex post facto criticism can alter that fact.

But it is the Lt. Governor’s assertion that Judge Goggins’ ruling was a “political decision” coupled with his previous assertion that the charges in the Flint water crisis that Attorney General Bill Schuette has brought amount to nothing more than “show trials” that are the most troubling.  By his use of the words “show trials,” Calley has essentially contended that both the Attorney General’s investigation of the Flint water crisis and his bringing of criminal charges were and are simply illegitimate.  

I consider this assertion to be the purest form of political and politized rhetoric by a candidate desperate for an issue. But given its incendiary implications, we must take it seriously.  So, how are we to evaluate this contention? I suggest we turn to history.

Show Trials

During the late 1930s, thousands of persons in the former Soviet Union were arrested, imprisoned, tortured, tried, convicted and usually executed for various crimes against the state.  As the Encyclopedia Britannica describes these trials:

“All the evidence presented in court was derived from the preliminary examinations of the defendants and from their confessions.  It was subsequently established that the accused were innocent, that the cases were fabricated by the secret police (NKVD) and that the confessions were made under pressure of intensive torture and intimidation.”

These show trials had a very specific purpose.  As C.S. Trueman points out, they were not held in secret.  They were

“. . . held in the open with foreign journalists invited and were there to prove to those in the USSR who were interested that the ‘enemies of the state’ still existed . . . and that state leaders such as Stalin were at risk.  There is little doubt that those who faced a show trial were going to be found guilty and they served the main purpose of Stalin—to get rid of anyone who might be a potential rival to him as leader.”

These show trials had few if any of the protections for the defendants that we regard as essential to a fair and impartial criminal justice system.  There was no protection against unreasonable search and seizure.  Forced confessions were commonplace.  There was no right to remain silent and those lawyers that the defendants were provided were often in the pay and under the control of the state.  The judges and juries—when there were juries at all—were completely biased and determined to convict before the trials even began.  There was no right of appeal.  

And, most importantly, there was no presumption of innocence.   Indeed, there was the opposite presumption:  that the defendants (and, by the way, their families) were most certainly guilty of all the charges that the state brought against them.  Ironically, the trials were speedy . . . and so were the executions that immediately followed.

So, how in any sense are any of the proceedings in any respect in the Flint water crisis similar to the Soviet show trials?  The honest answer is there is no similarity whatsoever.  Nowhere on the record throughout these proceedings have defendants even asserted, much less shown, that the prosecution has in any way violated the rights, privileges, and protections that we accord to all those who face, or who may face, criminal charges.

Rather, what we have, from the Lyon team at least, is a parade of out-of court clichés, of slogans that imply much but substantiate nothing at all. The Lyon team has conducted an extensive public relations campaign, nothing more and nothing less.  And make no mistake, there is such a team consisting of a raft of taxpayer-funded lawyers, professional publicists, government officials—including Governor Snyder—and sympathetic friends who have conducted a year-long public and private campaign supporting Lyon.   

And to what end? Did they intend by their out-of court statements to influence the judges and juries in Genesee County?  I suggest they think again. First, I doubt that such a campaign will be successful, nor should it be.  Second, such cheerleading entirely masks—indeed subverts–the central question that was before Judge Goggins: whether there was probable cause to believe that crimes had been committed and that Lyon had committed those crimes.

Moreover, at this point, Nick Lyon is presumed to be innocent of all the charges against him.  It is the prosecution’s burden at trial to prove those charges beyond a reasonable doubt.  If the prosecution fails, Lyon will be a free man.  If the prosecution succeeds, he will receive the punishment he then—but only then—deserves.  I suggest we get on with it. 

William C. Whitbeck

William C. Whitbeck is a graduate of Northwestern University’s Medill School of Journalism and the University of Michigan Law School. During his long career, he has served on the direct staff of three Michigan governors, George Romney, William Milliken, and John Engler. In 1997, Governor Engler appointed him to the Michigan Court of Appeals where he served as a judge for almost 17 years, with six years as Chief Judge. Over the past year, he served as a Special Assistant Attorney General, advising Attorney General Bill Schuette on the Flint water crisis. Whitbeck is also the author of a legal mystery entitled, “To Account for Murder,” and is currently working on a second one.

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