Judge Aquilina 'uniquely situated' to keep Larry Nassar case, chief judge rules

By Matt Mencarini
Lansing State Journal
August 14, 2018

https://www.freep.com/story/news/local/2018/08/14/larry-nassar-judge-aquilina-new-judge-ruling/985324002/

Larry Nassar's appellate attorneys filed a motion last month to remove Ingham County Circuit Court Judge Rosemarie Aquilina from the appeals in his case. Photo by Robert Killips

Judge Rosemarie Aquilina will remain on the Larry Nassar case, despite an effort by his attorneys to remove her. 

Ingham County Circuit Court Chief Judge Richard Garcia issued that ruling today, strongly defending Aquilina while criticizing Nassar and the attempt to remove her from hearing his motion requesting a new sentence.

"The die was cast in the courtroom and Defendant's sentence was forged by his own words and deeds," Garcia wrote in his seven-page opinion, which you can find at the bottom of this story. "Consideration of whether he should be resentenced can be fairly reviewed by the judge uniquely situated to provide justice in this case.

"The judge who heard these survivors is the only one who should properly render any re-sentence."

The matter went to Garcia after Aquilina refused to remove herself from the case on Aug. 3, and Nassar's court-appointed appellate attorneys appealed to him. 

Nassar's attorneys can appeal Garcia's ruling to the Court of Appeals or proceed to a hearing before Aquilina on whether Nassar should be resentenced.

Messages seeking comment from Nassar's attorneys weren't immediately returned. 

"Attorney General Schuette agrees with Judge Garcia: Judge Aquilina was a fair and impartial judge," Andrea Bitely, a spokeswoman for the AG's Office, said in an email. The Attorney General's Office served as prosecutor on Nassar's sexual assault charges.

Nassar, 54, formerly of Holt, is serving a 60-year federal prison sentence on three child pornography charges. Aquilina sentenced him to 40 to 175 years in prison in January on seven sexual assault charges. Weeks later, Eaton County Circuit Court Judge Janice Cunningham sentenced Nassar to 40 to 125 years in prison on three sexual assault charges. 

Nassar, the former Michigan State University and USA Gymnastics doctor who sexually assaulted more than 300 women and girls, has appealed all three of his sentences, in addition to seeking Aquilina's disqualification from his case. 

No date has been set for the motion hearing on the request for resentencing in Ingham County. Eaton County has scheduled a hearing on Sept. 6. The federal appeal is still pending.

Nassar's attorneys cited Aquilina's comments during and after his sentencing hearing. They argued Aquilina — who told Nassar when she sentenced him that she was signing his "death warrant" — was biased against him and used her position to push a personal advocacy agenda.

Garcia, in his ruling, said that Aquilina's "death warrant" comment was an explanation that her sentence would only start after the federal sentence. 

In their motion, Nassar's attorneys said their client had been attacked in federal prison and attributed it, in part, to Aquilina's comments that she might allow cruel and unusual punishment in the case if the Constitution allowed it.

"Defendant jumps to the conclusion that the judge is advocating for such cruel and unusual punishment," Garcia wrote in his opinion. "Her comments simply attempt to impress upon the Defendant his good fortune that he was protected by our Constitution.

"... However, the judge warned that an 'eye for an eye' 'solves nothing' and that vigilante crime is not tolerated. Such passionate elocution is not the basis for disqualification."

Garcia also defended the way Aquilina spoke to the victims who gave statements during the sentencing, saying she understood therapeutic importance of it and wanted them to be heard.

"(T)he survivors are not individual parties to the litigation and only recently in our history have been given the right to make victim impact statements by the Crime Victims Rights Act of 1985," he wrote. "They don't represent 'one side.' These survivors belong to our community. They are we. 

"At sentencing, the 'people' speak with one voice. The spokesperson in the end is the judge."

Nassar's attorneys pointed to Aquilina's social media activity and comments of support for the victims, along with her attendance of the ESPYs when Nassar's victims were given the Arthur Ashe Courage Award.

"Defendant apparently wishes to be resentenced before a judge who is ambivalent about the suffering of his victims," Garcia wrote. "This standard would disqualify any judge with a pulse."

The Ingham County sentencing lasted seven days, was broadcast live around the world and saw victim-impact statements from 156 women and girls. It publicized Nassar, his crimes and his connections to MSU and USA Gymnastics to a level not seen before. 

That media attention has remained, to an extent. Nassar's attorneys argued that that attention, which has often focused on Aquilina, in addition to her advocacy for sexual assault victims, also creates a bias. 

"(Nassar) brazenly complains that the judge is basking in the glow of his infamy," Garcia wrote. 

"The Defendant created this media event when he used his status as an Olympic physician to gain access to his victims. His behavior and the extent of his crimes created this vortex of publicity. His arrogance in explaining his plea fueled even more outpouring of support for these women."

In the wake of Nassar's three sentencing hearings, the criticism of MSU, USA Gymnastics and others who failed to protect his victims from sexual abuse intensified. In May, MSU reached a tentative settlement with more than 300 of Nassar's victims for $500 million. 

Garcia, in his order denying Nassar's motion to remove Aquilina, echoed what many of the victims have said in court and after.

"These survivors were ignored by Defendant's employer, Michigan State University," he wrote, "but were heard by the judiciary."