Split Michigan appeals court upholds sentencing of mass molester Larry Nassar over claims of misconduct by sentencing judge

As detailed in posts here and here from nearly three years ago, there was a lot of chatter and commentary about the high-profile conduct of the Michigan state sentencing judge during the high-profile state sentencing of Larry Nassar, the former USA Gymnastics team doctor who sexually abused many girls under his care.  Today, as reported in this local press piece, Michigan appeals court judges opined on the sentencing judge's conduct in a split ruling upholding Nassar's sentencing.  Here are the details from the press report:

The Michigan Court of Appeals on Tuesday denied an appeal from serial sex offender Larry Nassar but one judge chastised the conduct of Ingham County Circuit Judge Rosemarie Aquilina 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.  The former Michigan State University doctor was accused of sexually assaulting hundreds of women under the guise of medical treatment over more than two decades.  He also collected 37,000 images and videos of child pornography on his computer.

Nassar was sentenced in three courts to what amounted to a life sentence but appealed a 2017 sentence of 40-175 years issued by by Aquilina.  Though Nassar admitted guilt, he argued that 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 C. Cameron and Michael F. 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 that 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."

Shapiro also said, "contrary to the prosecution’s argument on appeal, the responsibility of a judge to render decisions impartially does not end with a guilty verdict or plea."  "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....

As the decision spread on Twitter, some expressed relief at the court's ruling. Kaylee Lorincz, one of the women abused by Nassar, tweeted that 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 multiple counts of first-degree criminal sexual conduct for abuse that occurred from 1998 to 2015. He was also charged in Eaton County with multiple counts of criminal sexual conduct, and also in federal court for possessing child pornography. 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 argued that Aquilina showed bias in numerous ways such as saying that she had signed his "death warrant" during sentencing and also saying that 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," said Aquilina.

In addressing Aquilina's comments, and other comments, during sentencing, the Cameron and Gadola wrote that Nassar had admitted guilt so the presumption of innocence had ended. "The sentencing judge’s statement was wholly inappropriate," they wrote. "In essence, the judge stated that she would allow physical retribution against Nassar if it were not constitutionally prohibited."

"Nassar has failed to establish plain error given that the sentencing judge’s comments did not indicate actual bias or prejudice," the majority judges continued. "We further conclude that Nassar has failed to establish that the alleged actual bias and/or prejudice affected his substantial rights. Specifically, as part of the plea agreement, Nassar agreed to a guidelines minimum sentence range between 25 and 40 years’ imprisonment for each count, with the sentencing judge having the discretion to determine the minimum sentence within that range as well as the discretion to determine the maximum sentence for all seven counts.

But Shapiro said Aquilina erred. "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.

I have quoted at length from this article because I cannot yet find the opinion online.  But that opinion is surely not to be the last work on these matters: I presume Nassar will appeal this decision up to the Michigan Supreme Court and perhaps thereafter in federal habeas (even though his various state and federal sentences for his many crimes surely ensure he will never see the outside of a prison even if he were to prevail on some of these matters).

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