Aquilina won't recuse herself from Nassar appeal

Kim Kozlowski
The Detroit News
Judge Rosemarie Aquilina sits on the bench as she hears a motion asking her to remove herself from the appeal hearing of Larry Nassar on Friday.  Aquilina refused.

Lansing — Judge Rosemarie Aquilina refused Friday to recuse herself from hearing Larry Nassar's appeal of the prison sentence she gave him for criminal sexual conduct, rejecting claims that she demonstrated bias against him.

Aquilina issued the ruling in Ingham County Circuit Court after addressing numerous issues raised by Nassar's attorneys concerning her statements and actions before and after she sentenced Nassar to 40-175 years in prison. The judge handed down the prison term after he admitted guilt to seven counts of first-degree criminal sexual misconduct and agreed to hearing statements from more than 150 of his accusers during his January sentencing in Ingham County.

Aquilina concluded her statements on Friday by saying that Nassar does not have a claim for bias after he pleaded guilty in federal court to possessing hordes of child pornography and then pleaded guilty in Ingham and Eaton counties to first-degree criminal sexual conduct. 

"What the defendant has is buyer's remorse: He want a redo of the plea in the federal system, he wants a redo of the plea in Ingham County and Eaton County," Aquilina said. "He is really seeking a reduction in time. He is really seeking a second chance."

She also responded to  allegations by Nassar's attorney's that she was biased.

"Bias? No Justice? Yes," Aquilina said. "Could I resentence him? Yes."

Malaika Ramsey-Heath of the State Appellate Defender office in Detroit argues that Judge Rosemarie Aquilina should recuse herself from the appeal hearing of Larry Nassar's sentencing.

Afterward, one of Nassar's lawyers said she was not surprised by Aquilina's ruling.

"We're disappointed, but we'll keep going," said Malaika Ramsey-Heath, an attorney in the State Appellate Defender Office in Detroit.

Michigan Attorney General spokeswoman Andrea Bitely agreed with Aquilina's assessment that Nassar's actions demonstrate that he has "buyer's remorse."

"He want to revictimize women," Bitely said. "This is about revictimization of women who are trying to move on with their lives ... They are working so hard to move beyond this."

"Attorney General (Bill) Schuette (and) our team worked very hard to make sure Larry Nassar remained behind bars for the rest of his life," Bitely continued. "He is where he needs to be."

Ramsey-Heath, along with defender's office attorney Jacqueline McCann, will appeal Aquilina's refusal to disqualify herself to Ingham County Circuit Court Judge Richard Garcia. It is not clear when their other motion, to reconsider Nassar's Ingham County prison sentence, will he heard.

Friday's hearing was the first step in a multi-faceted approach by Nassar's attorneys to appeal the amount of prison time he was handed by three judges, and change the sentences from running consecutively to concurrently.

Nassar is serving his 60-year federal sentence for possession of child pornography in the U.S. Penitentiary, Tucson, a high-security prison in Arizona. He also has a 40-125-year sentence for three counts of first-degree criminal sexual conduct from Eaton County.

In court documents, Ramsey-Heath and McCann argued that Aquilina, regarded as a hero by some victims, demonstrated bias during a seven-day victim impact hearing before she sentenced Nassar, and afterward, and she would not be able to consider his appeal fairly. 

During Friday's proceeding, Ramsey-Heath pointed to comments Aquilina made to The Detroit News, along with social media posts about the case and interactions with Nassar accusers.

"At this point, justice cannot be served in terms of the appearance of impropriety ... in this court." Ramsey-Heath said. "And Dr. Nassar has the right to continue this process. This case is not over ... the appellate process must be allowed to take place."

She asked Aquilina to recuse herself from further proceedings in Nassar's case. 

"This court has expressed a bias or at least created the appearance of impropriety such that it should not sit on the case any longer," Ramsey-Heath said.

"The appearance of impropriety entitles a defendant to a different judge."

Before Laura Moody, chief deputy attorney general, addressed the legal arguments and defended Aquilina, she said it was important to put the Nassar case into historical context. She noted that during the Nassar's sentencing hearing in Ingham County, he was an admitted sexual predator, perhaps the worst sexual predator in U.S. history.

"That's how he stood before this court," Moody said. "That's significant under the law because he no longer retained the presumption of innocence."

A lot of the arguments cited by Nassar's lawyers referenced law for trial judges, Moody said. But a sentencing judge is different.

"A court may be exceedingly ill-disposed toward a defendant who has been shown to be a thoroughly reprehensible person," Moody said. "If there is anyone who can be called thoroughly reprehensible, it's Larry Nassar." 

She added the comments challenged by Nassar's lawyers were made during an unprecedented hearing.

"(They) can only be described, fairly, as the most gut-wrenching and heartbreaking seven days that anyone has probably witnessed in the media and definitely in this courtroom," Moody said. "One hundred and fifty-plus survivors came to this podium to tell their stories of pain, suffering and betrayal at the hands of Larry Nassar. In the course of those seven days, yes, the court used strong words to convey the community's condemnation and there is nothing wrong with that."

Judges do have latitude, but there are boundaries, Ramsey-Heath said.

"It is not a free for-all once conviction has been entered, for anyone to say or do anything, especially the court where a case must come back," Ramsey-Heath said. "And that is the situation Dr. Nassar finds himself in." 

After lawyers for Nassar and the state finished their arguments, Aquilina spoke.

"Judges resentence all the time," Aquilina said. "This court resentences when there are errors. I have not crossed any boundaries. My statements were made out of clear frustration ... not biased in the way the defense suggests. Out of public safety? Yes. To defuse tension in the courtroom? Yes."

She added that it is not guaranteed this case will come back to her.

There were no errors, Aquilina said.

"He pled," the judge said, adding that she asked twice asked Nassar if he wanted to reconsider, and he said no.

She told Nassar's lawyers she did not have her mind made up about Nassar before the sentencing.

"You are in fact wrong," Aquilina said. "You are not a mind-reader."

She added that she did math based on the number of victims who spoke before her to come up with his sentence. She acknowledged that she probably should have conveyed the math during sentencing but she didn't because she doesn't like math.

The judge said she divided a sentence year by the seven counts he was charged with, and kept coming up with penalties that were given to defendants with much lower crimes, like a drunken driver or someone charged with a first offense for domestic violence. 

She also noted that Eaton County Judge Janice Cunningham sentenced Nassar to 40-125 years for three counts of first-degree criminal sexual conduct.

Aquilina said that when discussion came up about a plea agreement, she was already set to go to trial. She let attorneys on both sides know it is her practice to listen to all victims, and Nassar agreed to it.

"You can call it bias," Aquilina said. "I call it a strange situation that I agreed to, the defendant agreed to and the people agreed to ... Now the defendant wants to recalibrate his agreement, an agreement he made not once, not twice but thrice."

She also said she did not talk to the media, but showed a three-inch binder of media requests from reporters who wanted to talk to her after Nassar's appeal period is over. She said she had denied all requests.

"And if someone wants to tweet, check out the Constitution," Aquilina said. "I have a right to talk."

Nassar's lawyers have said that they may file similar motions challenging his sentence in Eaton County.

Meanwhile, a Georgia-based attorney, Amy Lee Copeland, requested in May that Nassar's federal sentence for possessing child pornography be recalculated because federal sentencing guidelines were not correctly applied and resulted in a much higher sentence than he deserved. She pointed to his state offenses being counted incorrectly toward his criminal history when calculating his sentence.

Malaika Ramsey-Heath of the State Appellate Defender office in Detroit presents copies of tweets made by Judge Rosemarie Aquilina as part of an argument that she should recuse herself from the appeal hearing of Larry Nassar's sentencing.