Larry Nassar loses another appeal in attempt to reduce prison time

Kim Kozlowski
The Detroit News
Larry Nassar

Larry Nassar lost another attempt to reduce his prison time Monday when Ingham County Circuit Judge Rosemarie Aquilina denied his appeal of the 40-175 year sentence she gave him for molesting young girls and women while seeing them as a doctor.

Nassar's attorneys said afterward they would ask the Michigan Court of Appeals to consider his appeal for disqualifying Aquilina, alleging bias, and for another judge to consider recalculating his sentence and to run it concurrently with the 60-year federal sentence he is currently serving.

His Ingham County sentence is one of three he was given earlier this year after admitting to first-degree criminal sexual misconduct and possessing hordes of child pornography.

Aquilina agreed in her ruling to remove her language from Nassar's sentence that referenced the federal sentence that Nassar is serving for possessing child porn.

The significance of the language removal of his federal sentence from her sentence isn't clear.

Malaika Ramsey-Heath, a State Appellate Defender Office attorney who is representing Nassar, said there will be legal arguments about what that means to Nassar's actual sentence and how it is served either consecutively or concurrently.

"Our belief is that state law applies to Michigan Department of Corrections so he should be earning credit under our state law," Ramsey-Heath said.

But Andrea Bitely, a spokeswoman for the Michigan Attorney General's office, said that Aquilina "is not going to allow him to get credit for time served in federal prison."

"Larry Nassar was sentenced fairly after seven days combined of hearing of hundred of women tell their stories of sex abuse by his hand," Bitely said. "And at this point, this is a waste of time for everyone involved to continue to keep Mr. Nassar in the public (eye) and being talked about. This is his ego at work."

Someone who is convicted at a trial automatically has a right to appeal to the Court of Appeals. But the court will not automatically take Nassar's case since his was a plea, said Ramsey-Heath. She and her colleague, Jacqueline McCann, will file an application for the Court of Appeals to consider his appeal, and the court will decide whether to take it up.

If it is denied, it can be appealed to the Michigan Supreme Court.

"We are taking it step by step at this point,” Ramsey-Heath said.

Nassar is a former Michigan State University and USA Gymnastics doctor who admitted that a procedure he performed on female patients had no medical purpose and was for his own sexual gratification. 

Nassar admitted to 10 counts of criminal sexual misconduct after more than 250 young women testified about his abuse over nearly 30 years. He was essentially given a defacto life sentence as a result of the 60-year federal sentence, the 40-175 Ingham County sentence, along with another sentence of 40-125 years from Eaton County for criminal sexual misconduct. 

For six months, Nassar was housed in the U.S. Penitentiary, Tucson. But following an assault, he was moved earlier this month to a federal holding facility in Oklahoma City.

His appeal efforts started in May with an appeal of his federal sentence. They came into the limelight four weeks ago when his lawyers asked Aquilina to recuse herself from hearing the appeal in the Ingham County, alleging she was biased.

Aquilina declined to remove herself from the case, and many legal maneuvers ensued: Nassar's lawyers appealed Aquilina's decision to Ingham County Judge Richard Garcia. He denied their appeal. Aquilina's staff scheduled the Monday hearing on his appeal. Last week, Nassar's lawyers asked Garcia to reconsider his decision and he denied it again on Monday.

Nassar's lawyers also filed an emergency request to the Court of Appeals to stop the hearing on Monday, but it was denied so the hearing with Aquilina occurred Monday afternoon.

Aquilina's ruling was the second time in a week that Nassar lost an appeal. Last week, three judges of the Sixth Circuit Court of Appeals deniedhis appeal of his 60-year federal sentence for child porn possession, which he is currently serving in the Federal Bureau of Prisons. 

The attorney representing him on his federal appeal, Georgia-based Amy Lee Copeland, declined comment on whether she will appeal last week's decision by the three-judge panel.

Regardless of what happens next, Nassar has options, but his chances of getting out of prison early are dimming especially after the loss of his federal appeal, said Peter Henning, a professor in the Wayne State University Law School and former federal prosecutor.

Copeland could ask the three-judge court of appeals panel to review its decision.

"That is not very common, especially in there is a case where there is no dissent on the panel," Henning said.

Copeland could also ask the full, 15-member Court of Appeals to reconsider the decision.

"That is rarely granted, but it’s possible," Henning said.

After those moves, Copeland's last option for Nassar's federal prison sentence appeal would be to request that it is heard by the U.S. Supreme Court, but less than 1 percent of cases are heard by the nation’s highest court, Henning said.

While those legal strategies are not impossible, there is a low probability that Nassar will prevail, Henning said.

“The strategy was to challenge all of the sentences, but given that he is serving the federal one ... it may not make any difference if he were to win on the state appeal because he is going to have to serve the 60-year federal sentence,” Henning said.

Nassar turned 55 this month. Federal Bureau of Prison rules allow for a 15 percent reduction in sentence for good behavior, meaning nine years for Nassar. Even if he were to get released early for good behavior, he would still have to serve 50 years of his federal sentence, Henning said. That would make Nassar 105 years old.

There is a federal statute that allows for inmates to be released early if they are suffering from serious medical issues related to aging, but inmates must have served at least half of their sentence to qualify. If Nassar were to qualify, that would mean he would have to serve 25-30 years, Henning said, making him 80-85 years old.

If his appeals don't result in his sentences running concurrently, he will have to serve his prison sentences from Ingham and Eaton counties.

But if he does get them to run concurrently, he still has his federal sentence to serve.

"With the federal sentence in place," Henning said, "it is going to be very difficult for him to get any substantial reduction in the amount of time he will spend in prison."