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After Larry Nassar admitted guilt for sexual misconduct crimes and 156 victims made impact statements, Judge Rosemarie Aquilina's role as a sentencing judge was different than a trial judge, according to court documents filed Tuesday in Ingham County Circuit Court.

Therefore, Nassar's motion for Aquilina to disqualify herself over his sentencing appeal should be denied, a lawyer from Attorney General Bill Schuette's office wrote.

"As the voice of the community, a sentencing judge is permitted to use strong language to redress the victims and express the grievance of society," the court documents say. "Judge Aquilina ... expressed frustration with Nassar — with his conduct, his unabated pattern of abuse, the enormity of pain it caused the victims, the ripples of hurt to the family of those he abused, and the lack of his sincere remorse — and expressed it in a manner that channeled the community's frustration and moral outrage.

"That her frustration edged toward brief wishes of physical retribution, and that her ultimate sentence was described as a 'death warrant,' are the unfortunate result of the extent and severity of his crimes, which the judge responded to in a graphic manner," according to the document. "In short, Larry Nassar's reprehensible conduct required condemnation." 

The documents, filed by assistant attorney general Christopher M. Allen, were a response to two motions filed last week by Nassar's attorneys appealing his sentence and looking to disqualify Aquilina from being part of the appeal process. Aquilina sentenced Nassar to 40-175 years in prison in January for criminal sexual conduct involving young women, many of them gymnasts, while they were his patients.

Nassar's new attorneys, Jacqueline McCann and Malaika Ramsey-Heath of the State Appellate Defender's Office in Detroit, say Aquilina was biased, and made up her mind before sentencing him to the de facto life term.

"We do not feel the sentencing took place before a fair sentencing judge and we think that is part of Dr. Nassar's right to due process to appear before a court that is fair and impartial, even through sentencing," Ramsey-Heath said last week. "Judge Aquilina has indicated that she was not and cannot be fair and impartial."

Both sides will argue the motion to disqualify Aquilina in her courtroom on Friday.

They are also trying to get his Ingham County sentence to run concurrently with his 60-year federal sentence, which he is currently serving in the United States Penitentiary, Tucson, a high security prison in Arizona where he is serving time for possessing child pornography and was recently assaulted.

Allen notes that Nassar's motion does not cite evidence suggesting Aquilina's bias before his sentencing. 

"Because there is none," according to the court documents. "Indeed, Judge Aquilina's pre-sentencing conduct evinces a clear understanding of her role to adjudicate Nassar's case impartially and protect his right to a fair trial."

He cites two examples including Aquilina denied a pre-trial motion to proffer evidence that Nassar admitted to the possession of child pornography depicting girls of a similar age as his victims.

"Despite the strong basis for introduction of that evidence ... Judge Aquilina kept it out, worried that the evidence would be "highly" or "unfairly" "prejudicial" to Nassar," the court documents say. "Would a judge so irredeemably biased against a defendant keep out admissible evidence that the law deems 'exceptionally probative'? Her discretionary call reveals a fair-minded judge without external biases."

Another example Allen notes is that Aquilina issued an order limiting public disclosure regarding the case early in the proceedings.

"The order broadly barred public comment about the case by any witnesses or attorneys, including by the victims," according to the court documents. "Judge Aquilina issued that order because, she stated, 'We need a fair and impartial jury,' and stated, 'Justice cannot be served if we can't get a clean jury.' The judge was concerned about tainting Nassar's presumption of innocence."

Some victims went to federal court to challenge the order, arguing it was so broad that it impugned the First Amendment, prompting the federal district court to enter a temporary restraining order halting enforcement of Aquilina's order.

Afterward, Aquilina entered a more narrow revised order.

"The court lifted this order only after Nassar pled guilty over seven months later," according to the court documents. "So, let's be clear: Judge Aquilina issued an order that bound victims from speaking publicly during the pendency of Nassar's case, dialed it back only when a federal action was filed against her, and lifted the bar only after Nassar pled guilty. Does that sound like a judge with a personal animus against the defendant?"

 

 

 

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