Larry Nassar denied new sentencing judge by Court of Appeals

Kim Kozlowski
The Detroit News

The Michigan Court of Appeals on Tuesday denied an appeal from serial sex offender Larry Nassar but the judgescriticized Ingham County Circuit Judge Rosemarie Aquilina's conduct during his sentencing.

In a 22-page opinion, a three-judge panel split 2-1 against Nassar's effort to be resentenced by a new judge, with two judges writing that Nassar admitted guilt, received a fair sentence and Aquilina did not show bias.

All three judges were troubled by some comments Aquilina made about Nassar, calling some of her statements "wholly inappropriate," while adding that "inflammatory hyperbole has no place in a sentencing hearing," and "due process entitles a defendant to (an) impartial and disinterested decisionmaker." But two judges ruling in the majority nuanced their critiques with context.

Nassar is the former Michigan State University doctor accused of sexually assaulting hundreds ofyoungwomen, teenage and prepubescent girls under the guise of medical treatment over more than two decades. He pleaded guilty to 10 counts of first-degree criminal sexual conduct involving nine victims and for collecting 37,000 images and videos of child pornography on his computerand is now incarcerated for life.

Nassar's court-appointed lawyer said she would appeal the decision.

"We are pleased that one Court of Appeals judge recognized that the trial judge was not neutral, not fair, and biased," said Jessica Zimbelman, managing attorney with the State Appellate Defender Office. "We are planning to file an application for leave to the Michigan Supreme Court."

Larry Nassar

After Nassar, 57, was sentenced in three courts,he launched and lost several appeals aiming to reduce his prison time. He appealedhis 2017 sentence of 40-175 years issued by Aquilina in Ingham County. Though Nassar admitted guilt, he argued his Ingham County sentence was invalid due to Aquilina's bias based on comments she made during his sentencing.

"Although Nassar argues that the judge 'made numerous statements throughout the proceedings indicating that she had already decided to impose the maximum allowed by the sentence agreement even before the sentencing hearing began,' the fact of the matter remains that the judge imposed a minimum sentence that fell within the range of Nassar’s agreed-upon plea," wrote appeals court Judges Thomas Cameron and Michael Gadola, who ruled against Nassar's appeal.

"Once a defendant has been adjudged guilty in a fair proceeding, 'the presumption of innocence disappears,'" Cameron and Gadola wrote. "A trial judge 'may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.' We conclude that the judge’s imperfect articulation of these principles does not establish bias or an appearance of impropriety."

But appeals court Judge Douglas Shapiro dissented, saying the case is "bad facts making bad law."

He wrote Nassar is guilty for abusing his position of trust and the sentence is not disproportionate outside the range of his plea agreement.

"I therefore sympathize with the majority’s wish to overlook the trial court’s errors," Shapiro wrote. "However, doing so makes bad law. The process by which this sentence was imposed challenges basic notions of judicial neutrality, due process, the right to counsel, and the use of social media by judges. The errors at sentencing were neither minor nor isolated and by approving of them, even if reticently, the majority invites further distortions of sentencing procedures.

"The facts that come to light during a trial or sentencing may be grounds for a fair and impartial judge to impose a harsh sentence, but even when doing so, it is the judge’s responsibility to maintain judicial neutrality, and determine a proper sentence on the basis of the defendant’s crimes and character rather than the judge’s personal anger, or the extent of revenge sought by the defendant’s victims," Shapiro wrote.

"I stand behind my decisions," Aquilina said. "There was no 'personal anger or rage.' There was upsetness with defendants in court behavior and disrespect of the victims as they spoke. The sentence imposed was one that defendant agreed to."

As the decision spread on Twitter, some expressed relief at the court's ruling.

Kaylee Lorincz, one of Nassar's accusers, tweeted the decision was, "the best christmas gift I could ever ask for."

Jacob Denhollander, the husband of Rachael Denhollander — the first woman to publicly accuse Nassar— said he was glad he lived in America where someone like Nassar can seek appeals and find due process. 

"The reminders, trauma, & triggers for victims means that the justice system is not primarily the place where victims find closure & peace," Denhollander tweeted. "Closure and peace comes from the communal response of belief and validation of the victims and their own ability to construct an identity apart from what was done to them. The justice system can be part of that, but can also be traumatizing."

Nassar was charged in Ingham County in 2017 with seven counts of first-degree criminal sexual conduct for abuse that occurred from 1998 to 2015. He was also charged in Eaton County with three counts of criminal sexual conduct, and also in federal court for possessing child pornography.All of the victims he admitted guilt to were either under the age of 13 or between the ages of 13-16.

In addition to his physician role at MSU, Nassar treated scores of athletes including the nation's top gymnasts while working for USA Gymnastics and the U.S. Olympic Committee.

Nassar pleaded his innocence for months, then eventually admitted that a procedure he performed on female patients had no medical purpose and was for his own sexual gratification. In Ingham County, he admitted guilt to seven counts of first-degree criminal sexual conductinvolving minors. As part of his plea agreement, he also agreed to allow all victims, their parents or their representatives to deliver victim impact statements at a January 2018 sentencing hearing. 

Until then, Nassar's accusers had been identified under the pseudonym of Jane Doe. But on the first day of the seven-day hearing, Kyle Stephens became the first woman to shed her anonymity, prompting others to do the same over the next several days of an emotional hearing. The hearing was slated to last four days with 88 reported victims but stretched into seven days with 156 reported victims, and was reported on around the globe, bringing notoriety to Nassar for the scope of his crimes and abuse of trust.

During the hearing, Aquilina made supportive comments to every victim after they spoke and said she had signed Nassar's "death warrant" when she handed him his sentence.

Six months later, in July 2018, Nassar filed motions for resentencing to correct an invalid sentence and for a new judge to be assigned. His appeal was deemed not timely by the two judges who denied it. 

Nassar argued Aquilina's statements and conduct at the sentencing hearing, as well as at public appearances, on social media and statements made to the press in the weeks and months after the sentencing showed bias.

During the sentencing hearing, Aquilina said the law did not allow her to impose cruel and unusual punishment on him.

"If it did, I have to say I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow someone or many people to do to him what he did to others," Aquilina said during the hearing.

Cameron and Gadola said the statement was "wholly inappropriate." 

"In essence, the judge stated that she would allow physical retribution against Nassar if it were not constitutionally prohibited," Cameron and Gadola wrote. "While a sentence judge’s language need not be tepid, the suggestion that a judge would allow or support the physical or sexual assault of a defendant in prison, regardless of how abhorrent that defendant’s conduct may be, erodes public confidence in the judiciary and casts doubt on whether a defendant’s due process rights were followed."

But they also noted the context of Aquilina's comment.

"While we are obviously troubled by this comment, we note that the judge made the comment in the context of recognizing the legal constraints on the court’s sentencing discretion," they wrote. "It is clear from the overall context of the sentencing hearing that the judge was not literally wishing physical harm on Nassar. Although the comments should not have been made, the judge’s comments did not indicate the existence of actual bias or prejudice."

They added Nassar had admitted guilt so the presumption of innocence had ended.

Shapiro said Aquilina erred, pointing to language in the judicial code of conduct that says judges must avoid impropriety, the appearance of impropriety and that public confidence is eroded when a judge displays improper conduct.

"A guilty verdict terminates the presumption of innocence but it does not terminate a judge’s responsibility to exercise her judicial responsibilities consistent with the law and the Code of Judicial Conduct," he wrote.

Nassar appealed a denial of his motion in 2018 for resentencing and his motion for disqualification of Aquilina. The chief circuit judge denied his appeal before it went to the Court of Appeals.

Nassar was essentially given a de facto life sentence as a result of the 60-year federal sentence, the 40-year to 175-year Ingham County sentence and his third sentence of 40 years to 125 years in Eaton County for criminal sexual misconduct. 

He was assaulted in May 2018 within hours of being released into the general population of the United States Penitentiary, Tucson, a high-security prison in Arizona. He has since been transferred and is currently serving his sentence in Coleman II United States Penitentiary, a prison in Sumterville, Florida, near Orlando.

The Federal Bureau of Prisons cites his release date as 01/30/2068.

kkozlowski@detroitnews.com