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Nassar attorneys seek Schuette censure over gag order

Kim Kozlowski
The Detroit News

Lawyers for former Michigan State University sports Dr. Larry Nassar are asking that Attorney General Bill Schuette be censured, saying he failed to enforce a gag order on witnesses in the sexual abuse case against the physician, according to a motion filed Friday in Ingham County Circuit Court.

Nassar’s attorneys also allege some witnesses violated the gag order and want them barred from testifying at his December trial.

Nassar, also a former USA Olympics team doctor, is in jail awaiting the trial on more than 20 charges of first-degree criminal sexual conduct involving young athletes, mostly gymnasts.

Numerous comments made by Schuette early in the case led to the April 12 court-ordered gag order, the attorneys wrote, such as when he referred to Nassar as “despicable” and a “monster” in “one of the biggest cases of serial sexual assault in Michigan’s history.”

But Schuette’s office failed to enforce the gag order, aimed at limiting pretrial publicity, so Nassar would not get convicted in public opinion before his trial, Nassar’s attorneys wrote.

As a result, potential trial witnesses spoke publicly about allegations against Nassar and then were added to the list of witnesses, eviscerating the former doctor’s constitutional right to a fair trial, Nassar’s attorneys wrote.

“The Attorney General, fully aware of this court’s order prohibiting pretrial statements, sat back and watched as witness after witness slowly eroded Nassar’s presumption of innocence with each public statement they made,” Nassar’s attorneys wrote. “The Attorney General made a mockery of this court’s final order, took actions to circumvent and sidestep the binding order and sealed Defendant Nassar’s fate by permanently denying him a right to a fair trial.”

“There is no place in our courts for this deceptive and reprehensible behavior ... (His) conduct cannot go unpunished and must be sanctioned,” the motion said.

Schuette, through spokeswoman Andrea Bitely, declined comment because of the gag order. But in previous court documents, he argued the gag order wrongly impeded on the alleged victims’ First Amendment rights.

Rachael Denhollander, a pivotal accuser of Nassar, said she was disappointed that he, through his attorneys, was trying to do what he’d allegedly done to victims for decades.

“I am deeply disturbed to see yet again a thinly veiled attempt to silence alleged victims and return control to Larry,” Denhollander said. “While a fair trial is important, victims should never have to relinquish their own First Amendment freedom. Fairness can and must be pursued without punishing assault victims for speaking up.”

assar is scheduled for trial starting Dec. 4. The allegations center on treatment he performed that the alleged victims say was sexual abuse since it involved digital penetration without a glove, lubricant or consent. He pleaded guilty to federal child pornography charges and awaits sentencing in that case.

The motion to sanction Schuette and strike some witnesses in the trial comes on the heels of another motion filed last Friday that seeks a change of venue for the trial because of concerns of seating an impartial jury following unprecedented and inflammatory print, radio and television coverage, which was shared on social media.

Examples of Schuette’s comments cited in the court filing include one in which the attorney general tweeted on Nov. 26: “Dr. Nassar stole this victim’s childhood which can never be undone. As a father that thought is heartbreaking.”

Given the threat these statements posed to Nassar’s right to a fair trial, his lawyers wrote that they sought a motion to prohibit further statements by Schuette and his team.

But before the motion was argued, Schuette’s office said it would agree to the gag order that was entered in the court on March 13. Even so, the order prohibited attorneys of record from releasing statements and information about the case to the media and members of the public, according to the motion.

The order did not apply to attorneys representing more than 100 alleged victims of Nassar involved in civil suits against him.

“Shortly after Schuette ceased his personal commentary, the civil lawyers and their clients began to saturate the public with extrajudicial statements targeted at Nassar,” his attorneys wrote.

A second gag order was prompted after two February incidents involving three Okemos-based attorneys: Mick Grewal and David Mittleman held a press conference to discuss allegations against Nassar, and Jamie White made comments to public radio, according to the motion.

In all of the instances, more damning comments were made about Nassar, his attorneys wrote, such as when White was quoted as saying, “What the young women will describe in testimony when the time becomes appropriate is that they were literally lined up like cattle you know outside of this small room in ... the back of Twistars gym awaiting to be treated by Dr. Nassar which is where the assault would occur.”

The second gag order was granted on March 29, and victims’ attorneys sought a temporary restraining order. On April 12, a federal court issued a modified public disclosure order for witnesses in the criminal case.

But one day later, on April 13, Schuette entered into an agreement with Denhollander, Olympic medalist Jamie Dantzscher and 80 others that his office would not enforce the order, Nassar’s attorneys wrote.

“Throughout this litigation, the witnesses – some whom have only been known to the civil lawyers and the Attorney General’s office – have chosen to speak publicly before and after this court’s April 12, 2017 order,” Nassar’s lawyer’s wrote. “They have done so with the April 13, 2017 ‘agreement’ they have with the Attorney General’s office.”

Nassar’s attorneys say they are only aware of the identity of some of the witnesses.

“The prosecution had the benefit of knowing who it intends to call at trial,” they wrote. “Rather than list those individuals, however, the Attorney General waited until their witnesses saturated the media further, which would have been a violation of this Court’s order, and delayed in naming them as witnesses.”

In the motion, the attorneys said they were only made aware on Oct. 20 of six other alleged victims expected to testify at the trial.

Their names were not identified, but Nassar’s attorneys wrote that they could easily figure out the identity of four of them.

“All have given very public interviews discussing the allegations in this case and their claims against Defendant Nassar,” his attorneys wrote. “Without knowing that these witnesses would be added, the defense was at a disadvantage and unfairly prejudiced. The gamesmanship by the Attorney General flies in the face of judicial process ...

“The Attorney General agreed not to enforce this court’s order to let the witnesses they plan to call at trial taint the entire proccess in which this court sought to protect.”

Nassar’s attorney pointed to several examples where four newly added witnesses violated the gag order.

Among them: one alleged victim discussed the gag order on a Michigan Public Radio program while discussing Nassar; another alleged victim gave an interview to ESPN about how the gag order might prevent other victims from coming forward, while two others gave an interview to National Public Radio and NBC News.

Still another alleged victim joined the recent #MeToo social media campaign aimed at raising awareness of sexual abuse and harassment, and posted a statement on Twitter. While the motion does not name the alleged witnesses, Olympic champion McKayla Maroney on Oct. 18 tweeted about Nassar’s alleged assault.

Two days later, on Oct. 20, the prosecution added witnesses, including Maroney, “who have already completely tainted the media,” Nassar’s lawyers wrote.

“Under no circumstances is it acceptable for the prosecution in a criminal case — or any lawyer for that matter — to make an agreement with witnesses not to enforce a valid court order,” Nassar’s lawyers wrote.

“In fact it is contemptuous ... It is further contrary to the court’s order and cuts to the ‘trustworthiness and honesty’ of the Attorney General when their office permits witnesses to run around and violate an Order, that but for the agreement with the Attorney General, they should have been governed by.”

Additionally, Schuette even admitted that he knew of one of the witnesses in July 2017, Nassar’s attorneys wrote.

“The actions by the Attorney General’s office clearly amount to disobedience of the court process, by their willful disregard of a lawful order ...” Nassar’s lawyers wrote. “This is not the first time the Attorney General has acted unethically and with complete disregard for fairness to all,” his lawyers continued. “The court has broad powers and its contempt powers must be utilized.”

Earlier this month, a judge denied a request from Nassar’s attorneys to delay jury selection in his upcoming trial due to publicity expected the same week, on Dec. 7, when he will be sentenced on the federal child pornography charges.

More than 100 women have made similar complaints to MSU about Nassar, in addition to the plaintiffs who are involved in the civil court cases and the criminal cases in Ingham and Eaton counties.