AG Brief
AG Brief
AG Brief
Defendant-Appellant.
/
Dana Nessel
Attorney General
Page
Introduction ................................................................................................................... 1
Argument ..................................................................................................................... 12
C. Nassar has not shown that the sentencing judge had a personal
animus derived from extraneous information....................................... 17
i
E. Nassar’s due process claim fails because he does not meet the
extremely stringent applicable standard. ............................................. 26
II. Ingham County Chief Judge Garcia reasonably found that Judge
Aquilina’s post-sentencing conduct did not evince a bias or the
objective appearance of bias against Nassar. .................................................. 29
ii
INDEX OF AUTHORITIES
Page
Cases
Haynes v State,
937 SW2d 199 (Mo, 1996) ............................................................................ 14, 28, 29
Herrera v Collins,
506 US 390 (1993) .............................................................................................. 13, 33
In re Contempt of Henry,
282 Mich App 656 (2009) ......................................................................................... 17
In re Muchison,
349 US 133 (1955) .................................................................................................... 27
Kern v Kern-Koskela,
320 Mich App 212 (2017) ............................................................................. 23, 26, 30
People v Antoine,
194 Mich App 189 (1992) ..................................................................................... 1, 20
iii
People v Banks,
249 Mich App 247 (2002) ......................................................................................... 25
People v Jackson,
292 Mich App 583 (2011) .................................................................................. 11, 13
People v Jones,
179 Mich App 339 (1989) ........................................................................................ 16
People v McIntire,
232 Mich App 71 (1998), rev’d on other grounds 461 Mich 147 (1999) .................. 13
People v Mitchell,
unpublished opinion per curiam of the Court of Appeals, issued June 15,
2017 (Docket No. 332266), app den 911 NW2d 458 (Mich 2018) ..................... 21, 22
People v Roscoe,
303 Mich App 633 (2014) ....................................................................... 11, 26, 32, 34
People v Sardy,
216 Mich App 111 (1996) ........................................................................................ 11
People v Shively,
230 Mich App 626 n 1 (1998) ................................................................................... 32
People v Steele,
173 Mich App 502 (1988) ......................................................................................... 16
People v Stevens,
498 Mich 162 (2015) ................................................................................................. 13
People v Watkins,
491 Mich 450 (2012) ........................................................................................... 18, 19
State v Schaeffer,
295 Kan 872 (2012) ............................................................................................ 27, 28
State v Thomas,
376 P3d 184 (NM, 2016)........................................................................................... 33
iv
United States v Sierra Pacific Indus, Inc,
862 F3d 1157 (CA 9, 2017) ....................................................................................... 23
Statutes
Other Authorities
Rules
v
STATEMENT OF JURISDICTION
The People agree that this Court has jurisdiction over Defendant Nassar’s
appeal.
vi
COUNTER-STATEMENT OF QUESTIONS PRESENTED
vii
RULES INVOLVED
viii
INTRODUCTION
After listening to the victim impacts statements of over 150 women subject to
Defendant Larry Nassar’s sexual abuse, Judge Rosemarie Aquilina voiced the
destructive serial sexual predator in the history of the State, having exploited his
position as a former sports medicine doctor at Michigan State University and as the
team doctor for the USA Olympic gymnastics team. All of the allegations Nassar
uses to support his argument on appeal—that Judge Aquilina was, or could be seen
as, biased against Nassar—are for statements she made at or after sentencing.
That is, only after Nassar admitted, under oath, to criminal sexual conduct against
seven young girls, agreeing that he assaulted them for no medical purpose and for
his own gratification. And only after Nassar explicitly agreed that all of his victims
The judge offered affirming and empowering words for the numerous victims
who came to apprise the court of Nassar’s crimes. On a few isolated occasions, the
toward Nassar, but this is not the mark of improper judicial conduct. Indeed, “at
that critical stage of the proceeding when penalty is levied, the law vindicated, and
the grievance of society and the victim redressed, the language of punishment need
not be tepid.” People v Antoine, 194 Mich App 189, 191 (1992). The magnitude of
the sentencing hearing and the sometimes caustic language the judge used directly
resulted from Nassar’s horrific misdeeds. As the judge herself stated, “Maybe I
have not stated things perfectly, but I ask you to sit and listen for seven days to
1
heartbroken children.” In the end, the judge heard from victims that Nassar agreed
could speak and imposed a sentence within the range that Nassar approved.
such that she could not hear Nassar’s delayed motion for resentencing. Nassar’s
victims of sexual assault. The Chief Judge of the Ingham County Circuit Court
found that Judge Aquilina’s social media footprint did not require disqualification.
2
COUNTER-STATEMENT OF FACTS AND PROCEEDINGS
On August 29, 2016, the Michigan State University Police Department (MSU
R.D., who reported being sexually assaulted by Defendant Larry Nassar. Nassar is
Michigan State University College of Osteopathic Medicine and as the lead doctor
for the USA women’s gymnastics team during four Olympic Games.
reading an article they published about the cover up by USA Gymnastics of coaches
that sexually abuse gymnasts. On September 12, 2016, the Indianapolis Star and
After dozens of women come forward with similar stories of abuse, Nassar
pleads guilty to seven counts of first-degree criminal sexual assault.
Shortly after the article published, MSU PD began receiving phone calls from
County, the Attorney General brought two separate cases which were bound over
and consolidated in the Ingham Circuit Court. Nassar faced numerous counts of
1Contra his brief, Nassar is not a doctor and has not been licensed to practice
medicine since April 2017.
3
first- and third-degree criminal sexual conduct for the sexual abuse he committed
against seven girls between 1998 and 2015, including a minor family friend and six
several counts of criminal sexual conduct. (Eaton Cir Ct No. 17-20217; Mich Ct App
No. 345808.)
Nassar pled guilty to seven counts of criminal sexual conduct in the first degree
(CSC-I). He agreed that the circuit court would set his minimum sentence between
25 and 40 years, within which the court “has final determination as to the minimum
sentence imposed within that agreed upon sentence range for each count.”
(11/22/17 Ingham Plea Agreement, ¶ 2, attached as App’x A.) Nassar also explicitly
agreed to allow all victims, charged and uncharged, to give victim impact
further charges against Nassar for all victims who had reported to MSU PD at the
time of the plea, which included 125 individuals. (Id., ¶ 6.) That number rose
dramatically during and after the sentencing hearing at the center of this appeal.
Judge Aquilina presided over the case, and accepted defendant’s plea at a
late November hearing at which he admitted that he not only abused underaged
girls, but did so for his sexual purpose and not for a medical purpose. (11/22/17 Plea
Hr’g at 35–37.)
4
A week later in Eaton County, Nassar pled guilty to three counts of CSC-I
As the state cases premised on his criminal sexual conduct proceeded, the
Michigan for crimes related to his possession of reams of child sexually abusive
In a signed plea agreement with the United States Attorney, Nassar pled
destroy the child pornography as the police were investigating him. (Federal Plea,
[Federal Judgment], attached as App’x D.) The court ordered Nassar’s federal
2 The factual admissions underlying the federal plea are: knowingly downloading
images and videos of child pornography; from 2003 to 2016; knowingly possessing
“thousands of images and videos of child pornography”; knowingly possessing child
pornography including images involving 11-year-old minors; acting to impede a
criminal investigation by deleting or altering information on his computer; and
possessing images and videos of minors “subject to sadistic or masochistic conduct.”
[Federal Plea at 5–7.]
5
sentences to be served prior to and consecutively to any state court sentences.
(Federal Judgment, at 2.) The United States Court of Appeals for the Sixth Circuit
unanimously affirmed the sentence. (8/22/18 6th Cir Order, attached as App’x E.)
The Ingham County sentencing hearing lasted seven days in January 2018;
pursuant to the plea agreement, 156 direct victims of Nassar’s abuse confronted
him with their impact statements. A snippet of just one story from each day of the
- Today I will say to you all that this man has broken my world along
[with] my parents[’]. This assault has affected me physically,
emotionally, and mentally, while tarnishing relationships I have
now and many that I will never be able to create in the future. This
sexual assault and molestation has affected my job, my dreams, my
trust in people and doctors. I hate the color green and white and
despise anything that is associated with MSU. I wake up in pools
of sweat screaming in nightmares. I have horrible anxiety attacks
6
at work and in public that make me want to rip out of my own skin.
[1/18/18 Tr at 84–85.]
- I will never forget the smell of the lotion he always carried with him
in his training bag and the feeling of the scratchy, ding[e]y, generic
towels he used in the treatments to hide whatever was going on
underneath. [1/23/18 Tr at 153.]
7
Almost 150 other victims shared similar stories. About a dozen more indirect
forgive themselves for taking their children to see Nassar. (See generally 1/16/17–
After hearing the victim impact statements and allocution, considering the
seven crimes to which he pled (which she considered “first and foremost”),
evaluating the Snow factors,3 and judging Nassar’s level of remorse and the effect of
his conduct on the victims, Judge Aquilina sentenced Nassar to 40 to 175 years’
A similar sentencing hearing occurred for his Eaton County convictions in the
weeks following the Ingham County sentencing. The Eaton County Circuit Court
heard from several dozen women and girls and received numerous written impact
Six months later, Nassar seeks to disqualify the sentencing judge and to be
resentenced.
Six months later, Nassar filed a motion for resentencing and a motion to
disqualify Judge Aquilina from hearing the resentencing motion. For the motion to
8
disqualify, Judge Aquilina held a hearing and denied it. (8/3/18 Judge Aquilina
Order, Def App’x B.) The judge reiterated her thought process when imposing the
40-year sentence, calculating that, for the seven victims, Nassar would serve just
under 6 years for each act of CSC-I that he pled to, and considered it akin to a
sentence that a repeat drunk driving offender might be given. (8/3/18 Hr’g Tr at
22.) In other words, the judge took issue with Nassar’s argument that she, without
thought, picked the top of the agreed-upon sentence range. The judge also pointed
out the notebook of press inquiries her chambers received that was “three or four
inches” thick, and that she had declined them because of the ongoing pendency of
the post-conviction and appellate process. (8/3/18 Hr’g Tr at 25.) The judge
acknowledged that she was not perfect—“Maybe I have not stated things perfectly,
but I ask you to sit and listen for seven days to heartbroken children”—but that she
Hr’g Tr at 27–28.)
After referral to the chief judge of Ingham County pursuant to MCR 2.003,
Ingham County Chief Judge Garcia denied Nasser’s request to disqualify Judge
Aquilina. (8/14/18 Chief Judge Garcia Order, Def App’x C.) Though it will be
discussed in more detail below, Judge Garcia evaluated Nassar’s challenges and
determined that “[t]here is no picture, tweet, like, share, television show, book
signing or t-shirt that changes the dynamics of the case to the extent that it would
9
Nassar moved for reconsideration in front of Judge Garcia, which he also
denied the morning of August 27, 2018. (8/27/18 Chief Judge Garcia Order, Def
App’x D.) In the hours after Nassar’s motion for reconsideration was denied, he
sought interlocutory leave in this Court; the People quickly responded. (Mich Ct
App Docket No. 345204.) The same day, this Court denied the application for
failure to persuade the Court of the need for immediate appellate review. (8/27/18
Later that afternoon, Judge Aquilina heard Nassar’s motion for a new
sentencing. (8/27/18 Hr’g Tr.) The court granted in part and denied in part the
motion. (9/7/18 Order, Def App’x G.) The court denied his motion for resentencing
for largely the same reasons it denied the motion to disqualify, but granted the
limited relief of removing from the Judgment of Sentence any reference to a related
Nassar sought leave to appeal in this Court on three grounds; this Court
granted leave to appeal on two of them: a challenge that Judge Aquilina’s conduct
at sentencing revealed bias and that the Chief Judge erred in denying his motion to
disqualify Aquilina from hearing his motion for resentencing because of her post-
sentencing public statements. (12/13/18 Mich Ct App Order, Docket Nos 345699;
345808.)
10
STANDARD OF REVIEW
Judge Aquilina’s conduct at sentencing. This Court has held that claims of judicial
bias may be forfeited in the absence of a timely objection. See People v Sardy, 216
the court for disqualification. Under 2.003(D)(1)(a), “all motions for disqualification
must be filed within 14 days of the discovery of the grounds for disqualification. If
the discovery is made within 14 days of the trial date, the motion must be made
forthwith.” The grounds for disqualification cited in Nassar’s brief (and cited to the
circuit court) occurred weeks and months before he filed his motion to disqualify.
Nassar also failed to timely preserve his contention that Judge Aquilina’s
many or all of the facts on which Nassar relies were outside of that 14-day window,
Because Nassar did not timely comply with the preservation requirements,
this Court should review his claim for plain error affecting his substantial rights.
People v Jackson, 292 Mich App 583, 597 (2011); Kroll v Crest Plastics, Inc., 142
Mich App 284, 291 (1985) (noting 14-day time limitation and enforcing forfeiture).
If preserved, the Chief Judge’s factual findings regarding his decision on the
motion for disqualification are reviewed for an abuse of discretion, and his
application of the law to the facts is reviewed de novo. People v Roscoe, 303 Mich
App 633, 647 (2014); Cain v Michigan Dept of Corr, 451 Mich 470, 503 (1996).
11
ARGUMENT
Nassar was sentenced after an unprecedented hearing that was doubly the
result of his actions. First, his decades-long spree of abuse created the sheer
number of victims that walked to the podium over those seven days in January of
2018. Second, through his plea agreement, Nassar personally agreed to permit
those victims speak in exchange for the opportunity to plead guilty to only seven
charges, to have a defined range for his minimum sentence, and for the Attorney
General’s agreement to forgo charges for the scores of other girls he abused.
Despite that plea agreement, Nassar fails to comprehend the consequences that
agreeing that a myriad of others could come and apprise the Court of their abuse at
his hand.
Though Nassar was entitled to the all the protections inherent in a fair trial
should he have exercised his right to have one, he instead pled guilty. Once he did
12
so, “the presumption of innocence disappears,” Herrera v Collins, 506 US 390, 399
(1993), and with it the trappings necessary to ensure a fair adjudication of guilt or
innocence. By signing the plea agreement and swearing, under oath, his guilt for
these heinous offenses, Nassar was no longer shrouded in all the constitutional
protections he was entitled to. With this basic principle in mind, Nassar’s
severity of the crime and the offender like a mathematician crunching numbers.
are, of course, outer bounds to a judge’s conduct, but critical or even “hostile”
impartiality.” People v Jackson, 292 Mich App 583, 598 (2011). Expression of
“annoyance” or “anger” are “within the bounds of what imperfect men and women
sometimes display” and are not cause for relief. People v McIntire, 232 Mich App
71, 105 (1998), rev’d on other grounds 461 Mich 147 (1999).
Even these broad limits typically apply in the trial context, where the jury is
in the midst of its role as factfinder and the judge should refrain from conduct that
could unduly affect its judgment of the facts. See, e.g., People v Stevens, 498 Mich
162, 169 (2015). In other words, the general limitations on a judge’s conduct are to
protect “a criminal defendant’s right to a fair and impartial jury trial.” Id. at 170.
13
Again, Nassar pled guilty and his presumption of innocence evaporated when the
certainty of his guilt was self-proclaimed. Because those trial rights are no longer
at play, the areas of inquiry for the question of judicial impropriety are narrow.
The Supreme Court has made clear that “upon completion of the evidence,” a
judge may “be exceedingly ill disposed towards the defendant, who has been shown
(1994). But even where the judge is “ill disposed,” she “is not thereby recusable for
bias or prejudice, since [her] knowledge and the opinion it produced were properly
and necessarily acquired in the course of the proceedings.” Id.; see also Haynes v
State, 937 SW2d 199, 204 (Mo, 1996) (“It could be added that at sentencing, a
Once Nassar’s guilt had been determined, the judge’s role shifted from
[I]n terms of fair and impartial, how can I be fair and impartial now,
completely a blank slate, when I have a pre-sentence investigation
report, I have your plea, I have all of these beautiful victims who have
come forward? All of this has to be considered at sentencing. [1/17/18
Tr at 9.]
The judge further recognized this split in roles: “So all of you, when I look at
myself as lady justice, my arms are like this. They are balanced. Prosecution,
14
defense, they’re balanced. It only starts to tip after there’s a plea and after I take
1/24/18 Tr at 101) (“[S]o up until the time you pled I believed that maybe there was
Before addressing the isolated instances that Nassar complains about, this
Court should review the sentencing judge’s careful consideration and application of
the sentencing factors set out in People v Snow, 386 Mich 586, 592 (1972), as
evidence that the judge was not biased against Nassar but was doing her job in
rendering a sentence consistent with applicable law. The Snow factors are: “(a) the
wrongdoer, and (d) the deterrence of others from committing like offenses.” Id.
(1/24/18 Tr at 107) (“I have many defendants come back here and show me the great
things they’ve done in their lives after probation, after parole. I don’t find that’s
possible with you.”). Relatedly, she considered the protection of society, Snow,
386 Mich at 592—Nassar demonstrated that he knew he had a problem for many
years but failed to correct it. His risk of re-offense is extremely high. (1/24/18 Tr at
106.) (“You have done nothing to control those urges, and anywhere you walk
15
destruction will occur to those most vulnerable.”). She considered retribution,
Snow, 386 Mich at 592, for his extensive and heinous crimes. (1/24/18 Tr at 106)
professed innocence, and said of the victims, “hell hath no fury like a woman
scorned.” (1/24/18 Tr at 97–102); People v Steele, 173 Mich App 502, 506 (1988) (a
the court reflected on the impact on the victims of Nassar’s crimes, yet another
valid sentencing consideration. People v Jones, 179 Mich App 339, 342 (1989).
Judge Aquilina did not pull Nassar’s sentence out of a hat, nor did she
Tr at 95) (“It is also about advising me, helping me make the -- a decision for
sentencing. As much as there’s that plea agreement, I still have to decide a few
things, and all of your voices collectively help me as much as it’s important for you
to heal.”) (emphasis added); (1/18/18 Tr at 115–116) (“I still haven’t decided what
I’m going to do.”). She exercised her discretion, balanced the Snow factors,
considered various other valid sentencing considerations, and imposed her sentence
16
C. Nassar has not shown that the sentencing judge had a personal
animus derived from extraneous information.
attorney.” This rule warrants disqualification only where a judge has actual bias or
prejudice against the defendant. In re Contempt of Henry, 282 Mich App 656, 680
(2009); Cain v Dept of Corrections, 451 Mich 470, 494–495 (1996). “A showing of
prejudice usually requires that the source of the bias be in events or information
outside the judicial proceeding.” In re MKK, 286 Mich App 546, 566 (2009), citing
Cain, 451 Mich at 495–496. In short, personal animus against a party is a ground
Ullmo ex rel Ullmo v Gilmour Acad, 273 F3d 671, 681 (CA 6, 2001) (a bias sufficient
of the law”).
Nassar has not alleged facts supporting a personal bias or animus against
him, let alone a bias sourced from events outside of his sentencing. Indeed, the
judge represented that she was initially unaware of Nassar or the publicity
surrounding the case, was preparing to hold a fair trial, and entertained the real
17
I’ve done everything I can to make sure you had a fair and
impartial trial and to stay free of anything I knew about you, because I
didn’t know you. I don’t know anything about your family. [(1/18/18
Tr at 9) (emphasis added).]
***
When this case first came to me, and I’ve told you this -- and I
apologize to the Olympians and athletes, but I have five children, two
dogs, my parents live with me, I work four jobs, I don’t have much time
for television. I don’t watch sports, although last year I was a soccer
coach, much to the laughter of my family -- I didn’t know anything
about you, your name, or anything that was going on. And so when I
kept saying we’re going to trial, here’s the date, and everyone wanted
more time, I said, no, here’s the cut off, and then the cases were
merged and we delayed it, and I still thought, well, maybe there’s a
defense of medical treatment. And why did I think that? Because it’s
my job to be fair and impartial . . . . [(1/24/18 Tr at 100–101)
(emphasis added).]
against him. Because there is none. Indeed, the judge’s pre-sentencing conduct
First, the judge denied the People’s pre-trial motion to proffer evidence that
similar age as his victims. Despite the strong basis for introduction of that
evidence, MCL 768.27a; People v Watkins, 491 Mich 450 (2012), Judge Aquilina
kept it out, worried that the evidence would be “highly” or “unfairly” “prejudicial” to
against a defendant keep out admissible evidence that the law deems “exceptionally
6The People filed an application for leave to appeal Judge Aquilina’s ruling, which
they dismissed upon Nassar’s guilty plea. (Mich Ct App Docket No. 341004.)
18
probative”? Watkins, 491 Mich at 476. Her discretionary call reveals a fair-minded
Second, early in the proceedings before her, the judge issued an order
limiting public disclosure regarding the case. The order broadly barred public
comment about the case by any witnesses or attorneys, including by the victims.
The judge issued that order because, she stated, “We need a fair and impartial
jury,” and was firm that, “[j]ustice cannot be served if we can’t get a clean jury.”
(3/29/17 Hr’g at 11–13.) The judge was concerned about tainting Nassar’s
presumption of innocence:
In response, a group of victims went to federal court to challenge the scope of the
Limiting Public Disclosure by Covered Individuals, attached as App’x F.) The court
lifted this order only after Nassar pled guilty seven months later. (11/22/17 Plea
Hr’g at 42–43.)
So, let’s be clear: the judge issued an order that bound victims from speaking
publicly during the pendency of Nassar’s case, dialed it back only when a federal
19
action was filed against her, and lifted the bar only after Nassar pled guilty. Does
that sound like a judge with a personal animus against the defendant?
Regarding the sentencing itself, as discussed above, and as this Court has
held, “[a]t that critical stage of the proceeding when penalty is levied, the law
vindicated, and the grievance of society and the victim redressed, the language of
punishment need not be tepid.” People v Antoine, 194 Mich App 189, 191 (1992).
And some of Judge Aquilina’s remarks were not tepid. Over the seven days of
sentencing, however, and the hundreds of pages of transcript, Nassar points to only
One of the more severe statements the judge made found her recognizing the limits
Our country does not have an eye for an eye and Michigan
doesn’t have the death penalty so I don’t know how to answer how
much is a young girl’s life worth, but I have children of my own and
there’s not enough gold in the planet that would satisfy that question,
and I think all of you victims are gold. (1/16/18 Tr at 226–227).7
7Judge Aquilina later made clear that an eye for an eye “solves nothing” and
admonished all those in attendance that “vigilante crime is not tolerated, so I hope
that no one will do anything untoward against counsel, their children, their
20
Again, the judge expressed a moral outrage at Nassar for the crimes he
committed. And her ruminations about what she may wished to have ordered were
tempered by her limitations as a judge under the rule of law: the Constitution’s
penalty, and the eschewing of justice defined as an eye for an eye. Judge Aquilina’s
comments recognize that the law dictated the bounds of her discretion, not her own
This statement is akin to one this Court recently found devoid of bias at a
Appeals, issued June 15, 2017 (Docket No. 332266), app den 911 NW2d 458 (Mich
And, just for the Record, you had enough mental wherewithal to
figure out when you got home that you left your cell phone and knew
This Court recognized the court’s “frustration” but, when considered in context, the
personal bias or animus toward the defendant.” Id., unpub op at *5. This Court
families, their firms, their cars, whatever it is. That is crime. Crime plus crime
solves absolutely nothing.” (1/24/18 Tr at 94.)
21
also noted that the statement reflected “the grievance of society and redress of the
victim.” Id.
conduct, his unabated pattern of abuse, the enormity of pain it caused the victims,
the ripples of hurt to the family of those he abused, and the lack of his sincere
and moral outrage. That her words edged toward brief wishes of physical
retribution, (1/16/18 Tr at 226), and that she described the ultimate sentence as a
“death warrant,” (1/24/18 Tr at 107), are the unfortunate result of the extent and
severity of his crimes, crimes that the judge responded to in a graphic manner. But
just as in Mitchell, such statements, which are tethered to the crimes at issue, are
22
accepting financial contributions for campaign deficits or
expenses associated with judicial office. [Canon 2, Sections C, D,
F, G; see also Armstrong v Ypsilanti Charter Twp, 248 Mich App
573, 599 (2001).]
Canon 2 also provides for more general, undefined positive requirements that
judges act in a way that “promote[s] public confidence in the integrity and
impartiality of the judiciary” and “treat every person fairly, with courtesy and
specific application.
Encapsulated, the test “is whether the conduct would create in reasonable
minds a perception that the judge’s ability to carry out judicial responsibilities with
The People note that Nassar’s extensive argument about the Canons, (Def Br
incorporated into MCR 2.003(C)(1)(b)—are dispositive of his legal claim before this
Court. Though judges are expected to comply with the Canons, they are generally
not independently cognizable before this Court. Cf. United States v Sierra Pacific
Indus, Inc, 862 F3d 1157, 1175 (CA 9, 2017) (“[N]ot every violation of the Code of
Aquilina’s conduct at and before sentencing does not violate those Canons and
23
Canon 2.A simply reiterates that judges should avoid the appearance of
impropriety, and Nassar claims that Judge Aquilina “allowing speeches from so
many people” and permitting them to give emotional victim impact statements
compromised her appearance. (Def Br at 31–32.) First, Nassar agreed to let the
victims speak. (11/22/17 Ingham Plea Agreement, ¶ 4.) Second, Nassar did not
object to the victims’ statements; it is incumbent on the party, not the judge, to
He alleges the judge went afoul of Canon 3.A(1) and Canon 4 by “us[ing]
the bench as a stage from which to push her own agenda for particular legislation.”
partisan interests, public clamor, or fear of criticism,” Canon 3.A(1), the latter
permits a judge to “contribute to the improvement of the law, the legal system, and
“particular” or otherwise. Rather, she offered affirming words for the victims who
spoke before her, encouraging them to make their voices heard and advocate with
legislative bodies for unspecified changes in the law. (1/16/18 Tr at 23, 105; 1/17/18
remorse, but that needs to be converted to change, public healing, new public policy,
speaking out, . . . because sexual assault needs to remain in the forefront, talked
24
reasonable person would think that advocacy for a public reckoning with sexual
Nassar contends that Aquilina violated subsection Canon 3.A(3), which asks
public comments to the judge because of her purported failure to rebuke them. (Def
Br at 34–35.) But “[a] trial court has broad discretion to control court proceedings,”
People v Banks, 249 Mich App 247, 256 (2002), and cannot be required to admonish
or hold in contempt members of the public for saying, “No,” or, “um-hum, yep,” or,
“Oh, my,” as Nassar seems to suggest. (Def Br at 34, citing 1/24/18 Tr at 102, 105,
107.) Though immediately after the last of these comments, Judge Aquilina said, “I
Nassar also argues Judge Aquilina failed to properly halt any brief
strong defense of Nassar’s right to counsel and the difficult job that his attorneys
had, telling the courtroom: “Please respect their job. It’s a difficult one. I know I’ve
been in their shoes and the Sixth Amendment does guarantee each defendant the
right to counsel. It doesn’t matter what the defendant has done, they have the right
In sum, Judge Aquilina’s conduct at sentencing did not run afoul of the
Canons, nor did she exhibit the appearance of impropriety. She conducted a
sentencing hearing (the length of which Nassar consented to), and offered affirming
words to the numerous victims who spoke before her. Without question, Judge
25
Aquilina used strong language. And she admitted “[m]aybe I have not stated things
perfectly,” (8/3/18 Mot Hr’g at 28), but this imperfection is to be expected when her
courtroom was overrun with women and girls day after day whose lives were
shattered by Nassar’s decisions, decisions that Nassar admitted to under oath. Did
the judge’s conduct “create in reasonable minds a perception that the judge’s ability
impaired”? Kern, 320 Mich App at 232. Given the circumstances, no. (8/3/18 Mot
Hr’g at 28) (“I ask you to sit and listen for seven days to heartbroken children.”).
E. Nassar’s due process claim fails because he does not meet the
extremely stringent applicable standard.
Nassar raises, but relief under the Constitution is reserved for only the most
called “personal bias.” See Caperton v AT Massey Coal Co, Inc, 556 US 868, 877
(2009) (“Personal bias or prejudice alone would not be sufficient basis for imposing a
omitted); Aetna Life Ins Co v Lavoie, 475 US 813, 820 (1986) (“[T]he traditional
common-law rule was that disqualification for bias or prejudice was not
permitted.”); Cain v Michigan Dep’t of Corr, 451 Mich 470, 498 n 33 (1996); People v
Roscoe, 303 Mich App 633, 647 (2014), Caperton, 556 US at 890.
26
Only the most “extraordinary situation[s]” require recusal under the due
process clause, and those typically relate to situations in which the judge has “a
877, 887 (relief warranted where West Virginia Supreme Court Justice voted to
Justice’s campaign); Cain, 451 Mich at 513 n 48. Nassar makes no allegation of
Nassar relies heavily on In re Muchison, 349 US 133, 136 (1955), for his
argument that “a fair trial is a basic requirement of due process.” True enough.
But Nassar waived his right to a trial when he pled guilty to the charges for which
he was sentenced. The very term “impartiality” is ill-fit for the claim Nassar is
raising. Moreover, Muchison only considered the narrow and inapt circumstance of
For these reasons and given the factual basis discussed above, Nassar’s
Schaeffer, 295 Kan 872, 874 (2012), for example, the judge addressed the defendant:
27
right now and look me straight in the face, and I would guarantee you
right now that if you had a gun, you wouldn’t hesitate to use it,
whether on me or somebody else. Why? I’ll never know, and neither
will anybody in this room.
Though the Kansas Supreme Court found the judge’s comments “generally
excessive and ill-advised,” and was “particularly troubled” by his comments about
the safety of his family, the Court affirmed because the judge “plainly evaluated
several of the sentencing factors” required by law. Schaeffer, 295 Kan at 876–877.
In Haynes v State, 937 SW2d 199, 202 (Mo, 1996), the defendant homed in on
“two or three phrases out of the lengthy sentencing,” which included a wish that “if
pieces,’” and a statement that the defendant “was a monster who should die in
prison.” But in considering whether a reasonable person would find the judge to be
lacking impartiality, the Missouri Supreme Court recognized that the “the
reasonable person knows all that has been said and done in the presence of the
judge,” including the type and severity of the defendant’s crimes. Id. at 203. The
reasonable observer also “understands that the judge’s role is different during
sentencing than at earlier stages of a criminal proceeding.” Id.; id. (“A permissible
28
challenged comments at sentencing should have to grapple with the rest of the
***
sentencing, “a judge becomes the conscience of the community, expressing not only
society’s compassion but, in some cases, expressing its outrage at the depravity of
the crime.” Haynes, 937 SW2d at 204. The judge’s conduct during sentencing
reflects this role, and none of her conduct rose to a level warranting retroactive
disqualification.
II. Ingham County Chief Judge Garcia reasonably found that Judge
Aquilina’s post-sentencing conduct did not evince a bias or the
objective appearance of bias against Nassar.
Nassar claims that his sentencing judge was not permitted to decide whether
public discussion of the case after sentencing. The judge and the chief judge of the
county both determined that Nassar had not surmounted his burden to show that
she ought to be disqualified from hearing Nassar’s motion for resentencing. This
29
A. Judge Garcia’s findings and conclusion regarding Nassar’s
disqualification motion are sound and should not be disturbed.
Nassar contends that, since sentencing, the judge is biased against him and
MCR 2.003(C)(1)(b). Again, the core of the test for Section (C)(1)(b) “is whether the
conduct would create in reasonable minds a perception that the judge’s ability to
Aquilina from hearing his motion for resentencing. (8/14/18 Chief Judge Garcia Op
and Order at 1.) His findings do not reveal an abuse of discretion and his
conclusion should not be disturbed. Judge Garcia found that Judge Aquilina’s
“death warrant” comment at sentencing was simply one way of expressing the fact
sentence, he would spend the rest of his life in prison. (Id. at 3.) He also disposed of
Nassar’s claim that Judge Aquilina should not have discussed what she might have
ordered were she not bound by the constitution, supra I.C.3.b. Judge Garcia found
the survivors that she understood the depth of society’s visceral natural desire for
(Id.)
30
Rejecting Nassar’s assertion that Judge Aquilina is partial to his victims,
Judge Garcia first noted that survivors are not individual parties to litigation, see
MCR 2.003(C)(1)(a), and “don’t represent ‘one side.’” (Id. at 4.) Moreover, the
regain a sense of dignity and respect rather than feeling powerless and ashamed.”
Judge Garcia also addressed Nassar’s assertions about Judge Aquilina’s post-
who is ambivalent about the suffering of victims” would “disqualify any judge with a
pulse.” (Id. at 6.) Defending Judge Aquilina’s “advocacy for victims” and disputing
Nassar’s claim that Aquilina was “self-promoti[ng],” Judge Garcia found that
Nassar “created this media event” and that “his crimes created this vortex of
television show, book signing or t-shirt that changes the dynamics of this case to the
extent that it would affect the judge’s future rulings.” (Id. at 7.)
on three things: (1) one interview in which she stated, after sentencing, that she
“support[s] the girls” and was “not fair and impartial (after the verdict)”; (2) her
expressed support for the victims of sexual assault through her social media
accounts; and (3) one reaction to a Facebook post in which she clicked an “emoji”
31
indicating that she laughed at a comment that used profanity and denigrated
Nassar.
This Court should reject Nassar’s attempt to taint the well by including non-
record evidence of a Facebook post and an interview, (Def Br at 10–12, 24–25; Def
of conduct after the judge’s ruling under review, no less. MCR 7.210(A)(1); People v
Shively, 230 Mich App 626, 628 n 1 (1998) (“The affidavit attached to defendant’s
appellate brief will not be considered by this panel to resolve this issue because it
The People will address each of his three main claims in turn, though Chief
This finding is not an abuse of discretion. Roscoe, 303 Mich App at 647.
from hearing his motion for resentencing, Judge Aquilina declined countless press
inquiries of her surrounding this highly publicized case before Nassar filed his
motion. (8/3/18 Hr’g at 25.) The judge apparently gave one press interview in
which she stated—perhaps in an inartful manner—”I’m not fair and impartial. The
case is over. No judge is fair and impartial (after the verdict). That’s for before the
sentencing.” (Def Br at 18–19.) But while the judge’s comment as reported may not
32
be ideally phrased, this is an accurate statement of the law. See Herrera, 506 US at
399 (“The presumption of innocence disappears” after a finding of guilt.); Liteky, 510
US at 551 (“[U]pon completion of the evidence,” a judge may “be exceedingly ill
reprehensible person.”).
Second, even if the judge was fully aware of the labyrinthian privacy settings
of her social media accounts and was fully aware that her every move was public, 9
supporting victims of sexual assault does not mean that the judge has shown
that this became the media event that Nassar now complains about is because of his
decisions to sexually assault dozens and dozens of young girls, and his agreement to
permit each and every one who wanted to speak a forum to do so. Affirming the
the recognition that many of the victims lacked until they stepped into that
State,” did not, as the Chief Judge determined, require disqualification. (8/14/18
9 See State v Thomas, 376 P3d 184, 199 (NM, 2016) (“The use of electronic social
media also may present some unfamiliar concerns [to judges], such as the inability
to retrieve or truly delete any message once posted, the public perception that
“friendships” exist between people who are not actually acquainted, and the ease
with which communications may be reproduced and widely disseminated to those
other than their intended recipients.”).
33
Third, while use of a laughing emoji in a public response to a strongly worded
condemnation of Nassar was not model, (Def Br at 19–22), it does not rebut the
heavy presumption of impartiality. Kurtz, 355 Mich at 351. The thrust of Nassar’s
claim comes down to the judge’s use of a single laughing emoji on a single social
media post. The Chief Judge found that no social media conduct in the record
would affect Judge Aquilina’s future rulings. (8/14/18 Chief Judge Garcia Order at
7; Chief Judge Garcia Denial of Motion for Reconsideration, Def App’x D.) Nassar
has not shown this to be an abuse of discretion. Roscoe, 303 Mich App at 647.
In sum, Chief Judge Garcia correctly determined that Nassar had not
sentencing. Insofar as Judge Aquilina posted on social media in ways that were not
ideal for a judge during the period for post-conviction relief and appeal, they were
If, however, this Court were to find that Judge Aquilina’s post-sentencing
conduct raised the specter of impropriety such that she should not have heard his
post-conviction motion for resentencing, this Court should proceed to review the
merits of his other claim: that he is entitled to resentencing. For the reasons
discussed in Section I, this Court should deny Nassar relief on that claim. The
development, so the question before this Court is ripe for decision. Any hearing by
34
another judge in Ingham Circuit Court on a remand about whether Nassar is
entitled to a new sentencing hearing is unnecessary and would only delay the
inevitable. Because Nassar is not entitled to resentencing, even if this Court finds
that Judge Aquilina should have disqualified herself or that Judge Garcia should
35
CONCLUSION AND RELIEF REQUESTED
The sentencing judge considered the factors she was required to, used harsh
language as she was entitled to, and imposed a sentence that he agreed to. In light
of Larry Nassar’s repetitive criminal depravity over the course of decades, the
Given the circumstances, Nassar has not shown that the judge was biased, nor that
that the judge’s post-conviction social media use improper, it arose only after
sentence remain.
Respectfully submitted,
/s/Christopher M. Allen
36