Prosecutors, cops split on Nassar charges

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Former interim Ingham County Prosecutor Gretchen Whitmer and a top assistant are denying a police chief’s claim that their office initially hesitated to prosecute Dr. Larry Nassar on allegations of sexual misconduct.

Clockwise from top left:  Bill Schuette, Gretchen Whitmer, Jim Dunlap, Larry Nassar.

Michigan State University Police Chief Jim Dunlap told The Detroit News that Whitmer wanted to charge Nassar in a child pornography case that she thought would be “relatively easy to convict on” but said the assault allegations could be “much more difficult to take to trial,” a characterization Whitmer called “patently false.”

Their respective roles in the blockbuster Nassar cases could become a campaign issue for Whitmer and Attorney General Bill Schuette, among the most prominent candidates for Michigan’s Democratic and Republican gubernatorial nominations in 2018. Dunlap took the assault cases to Schuette hours after a fall 2016 meeting with Whitmer and staff.

“She told us in a meeting that her decision was to move forward on the child sexually abusive material and not the criminal sexual assaults,” said Dunlap. “The big issue is we wanted to move forward on the (assault) cases and not settle for the (pornography) case.”

Whitmer and another top county attorney say Dunlap never brought them police reports that would have allowed her office to decide whether to prosecute the assault cases. They claim MSU police took the cases to Schuette because initial allegations originated in multiple counties — Ingham and Eaton — making his state-level office best suited to lead the prosecution, a point Schuette himself noted when he agreed to review them.

“That was the only issue,” Whitmer said. “My office was ready to move forward on any and all alleged crimes. The MSU police department ultimately took the charges to the Attorney General’s and U.S. Attorney’s offices because of jurisdiction.”

Lisa McCormick, who remains chief assistant prosecutor in Ingham County, agreed that jurisdiction was the main factor in the prosecution and said MSU police never provided enough information for the office to press charges in the assault cases.

“We needed to review all the police reports and evidence before we could give a decision,” McCormick said.

The initial sexual misconduct complaints — five or six at the time, according to Dunlap — became part of a larger case prosecuted by Schuette’s office that resulted in plea deals with the former MSU and USA Gymnastics doctor who has now admitted assaulting at least 10 women under the guise of medical treatment. The U.S. Attorney’s Office in west Michigan prosecuted Nassar on child pornography charges that, under tougher federal penalties, resulted in a 60-year prison sentence last week.

While experts agree the attorney general’s office was the logical choice to prosecute Nassar for assault, Dunlap and Whitmer offer differing accounts of how that decision was reached. Investigators and county prosecutors met to discuss the matter Oct. 4, 2016, and Dunlap contacted Schuette that evening.

At the meeting, Whitmer said she wanted to prosecute Nassar for a trove of child pornography police discovered through a search warrant approved by her office, Dunlap said. He preferred that the pornography case go to the U.S. Attorney’s Office because of stiffer federal penalties.

“It was pretty well established by our office at the front end that the priority was getting the criminal sexual assault (cases) charged so that everyone that came forward as a victim would have the ability to pursue their case,” Dunlap said. “It wasn’t going to happen if we only charged the (child pornography) case and sent him to prison for a brief period of time.”

Nassar was sentenced in U.S. District Court last week for possessing 37,000 images of child pornography. He has pleaded guilty to 10 counts of first-degree criminal sexual conduct covering nine victims in separate Ingham and Eaton county court cases handled by Schuette’s office.

Whitmer, a former state Senate minority leader, served as interim Ingham County prosecutor for six months in 2016 after former Prosecutor Stuart Dunnings resigned over prostitution charges. The Nassar case exploded in August 2016 when Rachael Denhollander publicly claimed the doctor abused her.

Whitmer and others are now calling on Schuette to launch an independent investigation of MSU, questioning what university officials knew about Nassar and when they knew it. She said this week she felt her office did everything it could to help put him behind bars.

Meeting’s aftermath

McCormick, who joined Whitmer and others from her office in the Oct. 4 meeting with Dunlap, called the police chief’s characterizations “not accurate.”

It was already clear the U.S. Attorney’s Office would handle the child pornography case, she said, telling The News a federal investigator was also at the meeting.

A spokeswoman for U.S. Attorney Andrew Birge declined to comment on any investigative aspect of the case.

Emails first obtained by Gongwer subscription news service through a Freedom of Information Act request show that Dunlap reached out to Schuette’s office hours after his meeting with the Ingham County Prosecutor’s Office.

“Bill-thanks for taking my call today and agreeing on sending your team out so quickly to discuss,” Dunlap wrote. “These cases have captured the public and these victims/survivors deserve a review. I am hopeful they will now get an advocate.”

Schuette responded about an hour later: “I am your advocate. Look forward to working with you.”

Separate correspondence provided by the Ingham County Prosecutor’s Office shows that Whitmer emailed Dunlap on Oct. 5, the day after their meeting, and said her team remained “eager to read any and all police reports you send our way.”

Whitmer noted Dunlap’s “desire to make an arrest as soon as possible” but suggested there were “many complicated legal and strategic decisions” to consider because the U.S. Attorney’s Office became involved.

“I believe we share the dual goals of protecting the victim and ensuring we are successful in getting the maximum penalty for the defendant,” Whitmer told Dunlap in an email McCormick sent on her behalf.

Dunlap agreed on the common goal and, in an Oct. 6 email, told Whitmer he had already met with Schuette’s office that morning. They discussed “the issues of continuity and multiple jurisdictions,” he said.

“They felt and I agreed that given the issues of multiple venues and the fact that we were asked to take the lead on other cases, the best decision would be for their office to handle the review of these cases,” Dunlap wrote. “It is our intent to have the federal issues remain with the U.S. Attorney.”

Dunlap thanked Whitmer and her office for their “professionalism,” telling her it “has not gone unnoticed.”

Schuette’s office issued a statement the same day announcing it would review the sexual assault cases for potential criminal charges, saying that the multiple jurisdiction issues put it “in the best position to effectively investigate and prosecute this case.”

The News was unable to reach two other Ingham County attorneys who were in the meeting with Dunlap, criminal sexual conduct case supervisor Nicole Matusko and assistant prosecuting attorney Bill Crino.

Satisfying result

Eaton County Prosecutor Doug Lloyd said Schuette’s office approached him after reviewing the Nassar cases. He agreed state attorneys were better suited to lead the prosecution because the cases crossed county lines.

Lloyd, a Republican, said he has no reason to believe Whitmer or her office did anything to slow the Nassar prosecution. Having the attorney general’s office handle cases in both counties provided victims a single point of contact, he said.

“What we want to see as prosecutors is justice, not only for the defendants, but for the victims as well,” he said.

Wayne State University Law Professor Peter Henning said strategy disagreements between police and prosecutors are not unusual in unique cases like Nassar’s.

“Typically we see police investigate and prosecutors take over — the ‘Law and Order’ episode divided into half-hour segments — but not in this kind of case,” Henning said. “The prosecutor’s office has to be involved very early.”

Nearly 150 young women have come forward since Denhollander, alleging that Nassar sexually assaulted them over the course of two decades, using a form of digital penetration that he portrayed to them as medical treatment.

Prosecuting Nassar, who was well-respected in the community, was ultimately “the kind of case the Attorney General’s Office should take on,” Henning said.

While Nassar had been accused by a handful of victims at the time, “I think everybody realized, probably pretty early on, that this was going to be a multi-victim case,” he said. “That’s where the attorney general can reach into any county in the state, not just Ingham and Eaton.”

Despite the conflicting accounts of their 2016 meeting, both Whitmer and Dunlap said they are pleased with the outcome.

“In retrospect, we know the system worked the way it was supposed to, because they were able to consolidate many of the pieces,” Whitmer said. “We’re at the point where (Nassar) is going to be doing a lot of time (in prison) based on his activity because they were able to consolidate cases under one prosecutor, and that’s the attorney general.”

Dunlap said working with the attorney general and U.S. attorney “seemed the most advantageous for the victims, and I think that turned out to be the best choice.”

While he acknowledged jurisdiction was an issue, Dunlap said it was “not insurmountable” because all but one of the initial cases his department investigated and discussed with Whitmer were based in Ingham County. The other was based in Eaton County.

Whitmer’s office had already approved several warrants for the MSU police probe, including one that allowed investigators to discover a trove of child pornography on hard drives from a trash bag at the end of Nassar’s drive way.

“I had my whole team ready to move forward if and when MSU brought us police reports,” Whitmer said of the assault cases. “They just never did because of the determination on jurisdiction.”