Nassar lawyers start bid to cut his prison time

Kim Kozlowski
The Detroit News

Six months after Ingham County Judge Rosemarie Aquilina told Larry Nassar she had signed his "death warrant," his new lawyers are appealing the prison sentence she gave him — and challenging her too, saying she was biased and should step aside from the case.

On Friday, lawyers for Nassar will ask Aquilina to recuse herself from Nassar's appeal of his prison sentence in Ingham County and let another judge rule on it.

Larry Nassar takes seat in witness box prior to Judge Aquilina's sentencing in this Thursday, January 18, 2018, file photo.

They're arguing that Aquilina, regarded as a hero by some Nassar victims, demonstrated bias during a seven-day victim impact hearing before she sentenced Nassar. At the conclusion of the January hearing in Ingham County Circuit Court, Aquilina ordered Nassar to serve 40-175 years for seven counts of first-degree criminal sexual conduct. 

Since Aquilina's response to the 156 accusers during the Ingham County hearing in January made her nationally known, many will be watching.

Typically, judges disqualify themselves before proceedings get underway if they have a connection that could prevent them from being impartial, said Peter Henning, a professor at Wayne State University Law School. But asking a judge to step down later in a case is rare.

"Judge don’t like to be accused of being biased ... (and)  judges are usually pretty careful about avoiding grounds to have them removed from a case after it has started," he said.

The argument by Nassar's lawyers for Aquilina to disqualify herself is part of a multi-pronged strategy they outlined in motions filed in Ingham County and federal courts.

In addition to seeking a new judge to reconsider Nassar's sentence, his new lawyers, Jacqueline McCann and Malaika Ramsey-Heath of the State Appellate Defender Office in Detroit, are asking for his sentence in Ingham County to run concurrently with his 60-year federal sentence for possessing child pornography.

He is serving that sentence in the U.S. Penitentiary, Tucson, a high-security federal prison in Arizona. 

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.

"With Nassar’s criminal history computed to exclude relevant conduct, his guidelines range would cap at 405 months’ imprisonment," according to court documents. "At the time of sentencing, Nassar was 54 years old. A 405 month sentence spans nearly 34 years. Even if he received every single day of good conduct time to which he was entitled, meaning he would serve about 85% of his sentence, Nassar would still serve 29 years."

If he served 29 years in federal prison, Nassar would be 83.

Copeland also argued that the judge who issued Nassar's sentence wrongly ordered that it be served consecutively with the yet-to-be-imposed state sentences for criminal sexual conduct.

The government is arguing that Nassar did not object at the time to the guidelines calculation, court documents say.

Ultimately, Henning said, Nassar's attorneys are working to dramatically reduce his sentences so he has a chance of leaving prison one day. As he turns 55 this month, Nassar's three consecutive prison sentences translate into a de facto life sentence.

"This is all designed to get him a reduced sentence, not to overturn the conviction," Henning said. "If he could get a reduced sentence ... and not have them run consecutively, that means he would only have to serve the one federal sentence."

“Will he succeed? I don’t know. I doubt it. But it’s not impossible.”

Mitchell Ribitwer, a Royal Oak-based criminal defense lawyer for more than 40 years, said Nassar's attorneys will have to present clear-cut evidence that Aquilina was biased.

He added that would be a high bar to clear.

"Plenty of judges make statements all the time and state their opinion about what's going on and generally those opinions are not enough to set aside a sentence," Ribitwer said.

There would also be some politics involved in a court revisiting and possibly lowering Nassar's sentence, Ribitwer added.

"I don't see any judges or courts reversing this when you have over 100 victims coming forward saying that they were sexually assaulted by Dr. Nassar," Ribitwer said.

The first step in Nassar's appeal begins with his attorneys asking Aquilina to disqualify herself because of her alleged bias.  

This week, Assistant Attorney General Christopher M. Allen responded to Nassar's lawyers by defending Aquilina, saying a sentencing judge is permitted to use strong language to support the victims and express society's grievances in the case.

Judge Rosemarie Aquilina speaks to defendant Larry Nassar and the court about his complaint letter in this Thursday, January 18, 2018, file photo.

"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 ... ," Allen wrote in a court document.

"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," Allen continued. "In short, Larry Nassar's reprehensible conduct required condemnation." 

Shannon Smith, Nassar's previous attorney, said she agrees with Nassar's new lawyers that Aquilina was biased during the sentencing hearing. She said the judge's behavior during the sentencing hearing surprised her because during the many hearings before it, Aquilina "was always fair, balanced and neutral."

"It's fair for a defendant to always have a fair and impartial judge," said Smith. "She could have given (Nassar) the same sentence without some of the hysterics and commentary that really degrade our justice system."

Smith said there was swearing in the courtroom and that sometimes the proceedings degraded into "a circus."

"That doesn't mean she can't show the victims how she feels about their statements," Smith said. "But some of the statements, especially directed (from her) at Nassar, crossed the line.

"It is so fundamentally important in our society that we do not have cruel and unusual punishment," the defense attorney said. "So many people don't understand the ins and outs of cruel and unusual punishment. So for a judge to make it sound like that would be reasonable in our society, it takes us back decades and completely destroys the integrity of the Constitution and what I work for every day as a defense lawyer."

In court documents filed last week, Ramsey-Heath and McCann argue that Aquilina made numerous statements during the hearing that indicated "she had already decided to impose the maximum allowed by the sentence agreement even before the sentencing hearing began." 

The sentencing agreement, reached after Nassar pleaded guilty to seven counts of criminal sexual conduct, called for a minimum sentence of 25 to 40 years. Prosecutors had asked for a sentence of 40 to 125 years. 

Aquilina used the hearing, Nassar's attorneys said, to advance her agenda of advocacy for state and national policy initiatives and culture change around sexual discrimination and gender inequity. Their motion also implies that Aquilina's handling of the hearing contributed to a climate in which Nassar was assaulted during his Eaton County sentencing hearing and again recently in federal prison.

Whether Aquilina will disqualify herself remains to be seen. But if she doesn't, McCann and Ramsey-Heath can appeal the decision to Janelle A. Lawless, chief judge pro tempore of Ingham County Circuit Court.

They also could appeal a decision by Lawless to the Michigan Supreme Court, if the High Court will hear it, Henning said.