Court upholds dismissal of charges against Lou Anna Simon, calls probe a 'sham'
A Michigan Court of Appeals panel unanimously upheld the dismissal of charges against former Michigan State University President Lou Anna Simon, with one judge calling the investigation into Simon following the Larry Nassar scandal a "sham."
Attorney General Dana Nessel's office provided no evidence that Simon knew the details of a complaint against Nassar in 2014, the appellate panel said Tuesday in a 3-0 decision. So it's difficult to conclude she lied to police in 2018 when she told them she knew an MSU sports medicine doctor was "under review" but knew "nothing of substance" beyond that, the judges ruled.
The brief majority decision was accompanied by a fiery concurrence by Judge Elizabeth Gleicher, an appointee of Democratic former Gov. Jennifer Granholm.
For subscribers:Meet the judge who called Schuette's investigation a sham
Gleicher slammed Nessel's investigation, arguing that Simon's statements were "immaterial to the prosecution's sham investigation." Many institutions failed Nassar victims — including MSU and USA Gymnastics — but Simon was only "on the periphery to the abysmal decisions" made by MSU, Gleicher said. Instead, she described Simon as a "high profile target, selected to assuage public anger rather than to protect the integrity of the law."
"...why did the attorney general get involved in a criminal investigation of MSU after Nassar had been sentenced and the civil litigation commenced?" Gleicher wrote of the investigation begun under Republican former Attorney General Bill Schuette. "The historical background supports that the goal was to exact retribution for MSU’s failure to stop Nassar rather than to pursue justice for criminal wrongdoing. Dr. Simon was one of the scapegoats selected to justify that effort."
Nessel's office appealed the dismissal in June and defended its actions in a Wednesday statement.
“The evidence presented against President Simon established probable cause for the crimes charged," Nessel spokeswoman Lynsey Mukomel said. "The department followed the evidence where it led. Any claim otherwise is unfounded. We are confident in the integrity of the charges against the defendant and are reviewing appellate options in our continued fight for the survivors.”
The dismissal followed a decision by the same three-judge panel vacating the conviction of former Michigan State University gymnastics coach Kathie Klages for lying to police.
Mayer Morganroth, one of Simon’s attorneys, called the court’s decision “absolutely right,” adding: “I was very concerned about the pain it caused her, unwarranted and ridiculous. But at least it’s been remedied as much as it can be.”
He said he had heard from Simon and her husband, Roy, and they were happy with the decision. “It was expected, frankly, but that’s beside the point until you get it,” Morganroth said.
Eaton County District Judge Julie Reincke bound Simon over for trial in October 2019 on charges of lying to police. But Eaton County Circuit Judge John Maurer in May 2020 dismissed the case because he determined prosecutors didn't produce sufficient evidence.
A 2018 interview with police
In early 2018, during Nassar's seven-day Ingham County sentencing, Simon stepped down as MSU's president amid criticisms that the university didn't do enough to protect the dozens of women and girls assaulted while Nassar was a university employee and that MSU failed to act on complaints from the women. Schuette subsequently appointed Bill Forsyth, a retired Kent County prosecutor in west Michigan, to lead the state's investigation into the Nassar scandal.
Simon's two felony and two misdemeanor counts of lying to police were linked to allegations that she told police in a May 2018 interview that she knew in 2014 that an MSU sports medicine doctor was "under review" but knew "nothing of substance" beyond that.
Police and prosecutors argued notes from a 2014 meeting between Simon and an employee show that an internal investigation into Nassar was scheduled to be discussed during the meeting.
But the judges noted Tuesday that the two detectives who interviewed Simon in 2018 testified that "they did not ask defendant follow-up questions regarding who informed her that there was a sports medicine doctor under review, when she had been informed, or whether she had asked for additional information."
To conclude Simon lied to police would be to rely "on mere speculation and suspicion" regarding what she was told in 2014, according to the majority opinion by Judge Stephen Borrello, an appointee of Granholm.
"...the evidence was insufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that defendant made a false or misleading statement," Borrello wrote.
Borello and Gleicher were joined by Judge Cynthia Stephens, another Granholm appointee.
Gleicher went further in criticizing the attorney general's investigation at MSU, arguing it was "difficult to take seriously" the department's self-described effort to root out people who had aided and abetted Nassar.
"It defies reason (and the extensive factual record available in January 2018) that before 2016, anyone at the university believed that Nassar was routinely penetrating the vaginas of his patients or understood that the treatment he claimed to be performing was actually sexual assault," wrote Gleicher, a former defense attorney.
Simon's statements to police in 2018 were "literally true" and it would be a "fanciful proposition at best" to say they were meant to mislead investigators, the judge wrote. Further, Gleicher said Simon's answers were immaterial because they "were incapable of influencing the decision-making process."
"This prosecution is designed to punish and humiliate Dr. Simon for the sins of MSU, not to provide justice for Nassar’s victims or to vindicate the legitimate purposes of the law penalizing those who lie to the police," Gleicher wrote.
Attorney Lee Silver, who also represented Simon, said he was “very pleased with the decision.”
“As Judge Gleicher noted, this was a sham investigation and the prosecution tried to make Dr. Simon the scapegoat for Larry Nassar. Dr. Simon did not cover up anything or fail the victims,” Silver said.
Attorney and author Rachael Denhollander, the first woman to accuse Nassar of sexual assault, said she was "...disappointed that our system was incapable of instilling consequences and justice for the survivors who suffered. My hope is what we take away from this is that it is always the time to do the right thing. It is always right to fight for survivors.”
That's important, Denhollander added, because institutions need to be shown that society is serious about protecting children, students and others.
“I’d rather have them try and to send that message than to not try at all,” she said.
Irvine, California-based attorney John Manly, who represented about half of the women victimized by Nassar, lashed out at the court’s decision on Twitter.
“The Court of Appeals calling this investigation a 'sham' is another gut punch to Nassar’s victims,” Manly posted. "The net effect of these 2 horrible opinions is school officials can lie their a-- off to police in sex/shooting cases with no fear of being charged criminally.”
He called on Nessel to appeal, as he did Tuesday in addressing the court's decision to vacate Klages's conviction.
Klages jury conviction vacated
The same three-judge panel on Tuesday vacated Klages's conviction after concluding her statements to investigators about not remembering a 1997 conversation were not material to the criminal investigation.
Klages was found guilty by a jury in February 2020 of two counts of lying to a peace officer during the attorney general office's investigation. Former MSU gymnast Larissa Boyce testified that she was 16 in 1997 when she told Klages that Nassar was sexually abusing her while treating her injuries. Many gymnasts said they could have been spared if Klages had acted when Boyce came forward.
Gleicher and Stephens wrote in the 2-1 ruling that "No evidence supported that Klages’s false statement regarding the 1997 conversations was material to the criminal investigation conducted in 2018.”
The judges didn’t determine whether Klages' statements were truthful. Borrello dissented, arguing the conviction should stand because the evidence submitted at trial was sufficient.
Ingham County Circuit Judge Joyce Draganchuk in August 2020 sentenced Klages to 90 days in jail and 18 months of probation. She served 50 days, according to her attorney, Mary Chartier.
Separately, a former dean for the MSU osteopathic medical school and Nassar's former boss, William Strampel, was jailed for seven months after being convicted in 2019 of two counts of willful neglect of duty related to his supervision of Nassar. He also was found guilty of misconduct in office linked to inappropriate comments directed toward female students. MSU fired Strampel in 2018 and he surrendered his license to practice medicine and agreed to pay a $35,000 fine in late 2019.