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STATE OF MICHIGAN

IN THE COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,


Court of Appeals No. 345699
Plaintiff-Appellee,
Ingham Circuit Court No. 17-526-FC
v

LAWRENCE GERARD NASSAR,

Defendant-Appellant.
/

BRIEF OF APPELLEE PEOPLE OF THE STATE OF MICHIGAN

ORAL ARGUMENT REQUESTED

Dana Nessel
Attorney General

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Fadwa A. Hammoud (P74185)
Solicitor General
Counsel of Record

Christopher M. Allen (P75329)


Assistant Attorney General
Attorneys for the People
Plaintiff–Appellee
Criminal Appellate Division
P.O. Box 30217
Lansing, MI 48909
517.335.7650

Dated: May 9, 2019


TABLE OF CONTENTS

Page

Index of Authorities ...................................................................................................... iii

Statement of Jurisdiction ............................................................................................. vi

Counter-Statement of Questions Presented ............................................................... vii

Rules Involved............................................................................................................. viii

Introduction ................................................................................................................... 1

Counter-Statement of Facts and Proceedings .............................................................. 3

Standard of Review ...................................................................................................... 11

Argument ..................................................................................................................... 12

I. Any isolated, immoderate comments by the sentencing judge do not


warrant a new sentencing where her conduct was well within
acceptable bounds: she permitted victims to speak per Nassar’s
agreement, considered the appropriate sentencing factors, and
rendered a sentence within the range he approved......................................... 12

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A. At sentencing, a judge has wide berth to express the moral
outrage of the community and is not limited to tepid language in
doing so. .................................................................................................. 13

B. The sentencing judge considered the proper factors in fashioning


a sentence within the range Nassar agreed to. ..................................... 15

C. Nassar has not shown that the sentencing judge had a personal
animus derived from extraneous information....................................... 17

1. Nassar points to nothing in the record prior to sentencing


supporting his contention that the judge was biased
against him; the record shows that, until he pled, she was
attempting to ensure he receive a fair trial. ............................... 17

2. The judge’s harsh language at sentencing was justified


and any intemperate remarks were isolated. ............................. 20

D. Nassar has not shown the judge’s conduct at sentencing bore an


appearance of impropriety. .................................................................... 22

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E. Nassar’s due process claim fails because he does not meet the
extremely stringent applicable standard. ............................................. 26

F. Other states confronted with more egregious statements have


consistently declined to order a new sentencing. .................................. 27

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

A. Judge Garcia’s findings and conclusion regarding Nassar’s


disqualification motion are sound and should not be disturbed. ......... 30

B. Judge Aquilina’s post-sentencing conduct does not warrant


Nassar relief. .......................................................................................... 31

C. Even if this Court finds her post-sentencing conduct improper, it


should hold that Nassar is not entitled to resentencing. ...................... 34

Conclusion and Relief Requested ................................................................................ 36

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ii
INDEX OF AUTHORITIES

Page

Cases

Aetna Life Ins Co v Lavoie,


475 US 813 (1986) .................................................................................................... 26

Cain v Michigan Dept of Corr,


451 Mich 470 (1996) ............................................................................... 11, 17, 26, 27

Caperton v AT Massey Coal Co, Inc,


556 US 868 (2009) .............................................................................................. 26, 27

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

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In re MKK,
286 Mich App 546 (2009) ......................................................................................... 17

In re Muchison,
349 US 133 (1955) .................................................................................................... 27

Kern v Kern-Koskela,
320 Mich App 212 (2017) ............................................................................. 23, 26, 30

Kroll v Crest Plastics, Inc.,


142 Mich App 284 (1985) ......................................................................................... 11

Liteky v United States,


510 US 540 (1994) ........................................................................................ 14, 15, 33

Mahlen Land Corp v Kurtz,


355 Mich 340 (1959) ........................................................................................... 14, 34

People v Antoine,
194 Mich App 189 (1992) ..................................................................................... 1, 20

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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

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People v Snow,
386 Mich 586 (1972) ...................................................................................... 8, 15, 16

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

Ullmo ex rel Ullmo v Gilmour Acad,


273 F3d 671 (CA 6, 2001) ......................................................................................... 17

iv
United States v Sierra Pacific Indus, Inc,
862 F3d 1157 (CA 9, 2017) ....................................................................................... 23

Statutes

18 USC § 1519 ................................................................................................................ 5

18 USC § 2252A ............................................................................................................. 5

MCL 768.27a ................................................................................................................ 18

Other Authorities

Canon 2 of the Michigan Code of Judicial Conduct.............................................. 22, 24

Canon 3 of the Michigan Code of Judicial Conduct.................................................... 24

Canon 4 of the Michigan Code of Judicial Conduct.................................................... 24

Stephen Gillers, Deciding Who Dies, 129 U Pa L Rev 1, 60 (1980) ........................... 29

Rules

MCR 2.003............................................................................................................ passim

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MCR 7.210.................................................................................................................... 32

v
STATEMENT OF JURISDICTION

The People agree that this Court has jurisdiction over Defendant Nassar’s

appeal.

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vi
COUNTER-STATEMENT OF QUESTIONS PRESENTED

1. At sentencing, a judge may express the moral outrage of the


community, though she may not act on an extrajudicial bias. With
Nassar’s explicit agreement, Judge Aquilina listened to over 150
women and girls describe their sexual abuse at the hands of the
defendant and imposed a 40-year minimum sentence which is within
the range Nassar agreed to. Is Nassar entitled to resentencing?

Appellant’s answer: Yes.

Appellee’s answer: No.

Trial court’s answer: No.

2. A judge may be disqualified for showing an appearance of impropriety


where the conduct would create a reasonable perception that the
judge’s ability to carry out judicial responsibilities with integrity,
impartiality, and competence is impaired. As the Chief Judge of
Ingham County determined, Judge Aquilina’s post-conviction conduct
did not require her to recuse herself from hearing Nassar’s motion for
resentencing. Is Nassar entitled to a different judge to hear his
meritless motion for resentencing?

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Appellant’s answer: Yes.

Appellee’s answer: No.

Trial court’s answer: No.

Chief Judge’s answer: No.

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RULES INVOLVED

MCR 2.003(A)(1) provides:

Disqualification of a judge is warranted for reasons that include,


but are not limited to, the following:

(a) The judge is biased or prejudiced for or against a party or


attorney.

(b) The judge, based on objective and reasonable perceptions,


has either (i) a serious risk of actual bias impacting the due process
rights of a party as enunciated in Caperton v Massey, [556 US 868];
129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to
the appearance of impropriety standard set forth in Canon 2 of the
Michigan Code of Judicial Conduct.

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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

community’s moral outrage. No wonder. Defendant Nassar is arguably the most

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

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could address the court at sentencing.

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

judge responded to the emotional victim impact statements with intemperance

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

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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.

Moreover, Judge Aquilina’s conduct following the sentencing hearing—

including her use of social media—has not created an appearance of impropriety

such that she could not hear Nassar’s delayed motion for resentencing. Nassar’s

challenge largely consists of public appearances and public statements in support of

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.

That decision is not erroneous; this Court should affirm.

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COUNTER-STATEMENT OF FACTS AND PROCEEDINGS

Nassar is accused of criminal sexual assault by his female child patient.

On August 29, 2016, the Michigan State University Police Department (MSU

PD) began a criminal sexual conduct investigation involving a former gymnast,

R.D., who reported being sexually assaulted by Defendant Larry Nassar. Nassar is

a former doctor1 whose practice focused predominantly on the treatment of young

female gymnasts. With that supposed expertise, he served as associate professor at

Michigan State University College of Osteopathic Medicine and as the lead doctor

for the USA women’s gymnastics team during four Olympic Games.

R.D. participated in an interview with the Indianapolis Star newspaper after

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

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Lansing State Journal published an article which included R.D.’s story as well as

information provided by two victims that chose to remain anonymous.

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

additional victims reporting Nassar had sexually assaulted them. In Ingham

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.

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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

gymnast-patients. Nassar was also charged in neighboring Eaton County with

several counts of criminal sexual conduct. (Eaton Cir Ct No. 17-20217; Mich Ct App

No. 345808.)

In Ingham County, the parties entered into a plea agreement in which

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

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statements at sentencing. (Id., ¶ 4.) The Attorney General agreed not to issue

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.)

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A week later in Eaton County, Nassar pled guilty to three counts of CSC-I

pursuant to a substantially similar plea agreement. (11/29/17 Eaton Plea

Agreement, attached as App’x B.)

In federal court proceedings, Nassar pleads guilty and is sentenced to 60


years’ imprisonment, to be served before his state sentences.

As the state cases premised on his criminal sexual conduct proceeded, the

federal government was busy prosecuting Nassar in the Western District of

Michigan for crimes related to his possession of reams of child sexually abusive

material, or child pornography.

In a signed plea agreement with the United States Attorney, Nassar pled

guilty to one count of receipt of child pornography, 18 USC § 2252A(a)(2)(A),

possession of child pornography, 18 USC § 2252A(a)(5)(B), and destruction and

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concealment of records and tangible objects, 18 USC § 1519, for attempting to

destroy the child pornography as the police were investigating him. (Federal Plea,

attached as App’x C.)2

On December 7, 2017, the federal district court sentenced Nassar to 60 years’

imprisonment. (Judgment in a Criminal Case, WDMI Docket No. 1:16-cr-242

[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.]

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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.)

After an unprecedented sentencing hearing, Nassar is sentenced to 40 to


175 years’ imprisonment, within the range he agreed to.

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

seven-day hearing illustrates the sheer ruin that Nassar caused:

- The complex feelings of shame, disgust, and self-hatred brought me


bouts of depression, anxiety, eating disorders, and other compulsive
conditions. Sometimes I think it’s hard for people to translate these
generic terms into reality. For me, it was a girl crying on the floor
for hours trying not to rip out too much of her hair. For me, it was
a girl wanting the pain to stop so badly that she woke up for

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months to the thought, I want to die. For me, it was a girl getting
out her gun and laying it on the bed just to remind herself that she
has control over her own life. [1/16/18 Tr at 20.]

- As a mother I understand how gravely heinous Larry’s treatments -


- treatments -- were. I am disgusted that anyone, let alone a father
himself, could carry out such grotesque acts. I absolutely blame
Larry for what he did to me and how his affects -- and how this
affects and impacts my life daily. It makes it hard for me to trust
people and negatively impacts my relationship with others.
[1/17/18 Tr at 19.]

- 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

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at work and in public that make me want to rip out of my own skin.
[1/18/18 Tr at 84–85.]

- I thought I knew Nassar. We all thought we did. When I was 16 I


job shadowed him in high school. He was the reason I was so
interested in the medical field and specializing in sports medicine.
He was the reason I wanted to help gymnasts in the future. . . . I
had a complete moment of clarity and understanding who Nassar
really is and what he’s done and I ran into my parents’ room
sobbing out of control. I remember grabbing my head and banging
it on the bed trying to get the thoughts out. I also remember
vaguely hearing my parents in the background trying to calm me
down. It took a while but I managed to calm down with their help
and sleeping in their bed for the rest of the night. That is
something a 25 year old shouldn’t have to do, sleep in their parents’
bed because they’re afraid of the monster, but it’s happened more
than once now, and, to be honest, I’m not sure when it will stop.
[1/19/18 Tr at 71, 76.]

- You were massaging my back as normal and then without warning


or explanation you stuck your ungloved fingers into my vagina.
While it was happening you said it was a medical treatment, that it
would help my back. You closed your eyes and continued talking to
me like nothing was happening, but for me a lot was happening in

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my mind. No one had ever touched me like this before. I thought to
myself, aren’t my parents supposed to give you consent first? This
is the gymnastics world, though, things aren’t by the book. Plus,
they wouldn’t understand. But isn’t it weird that he’s not wearing
gloves? I wonder if he does this to the other girls? And why is he
closing his eyes? He’s a doctor, though, so I’m sure it’s fine. Plus,
he’s been so nice to me, and someone with his name I can obviously
trust, right? [1/22/18 Tr at 11.]

- 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.]

- While I still struggle to trust myself and I still struggle to accept


this reality that is mine, and, unfortunately, so many others, I have
also come to understand that these decisions were his, not mine. I
cannot blame myself for trusting my physician to do his job, and I
cannot hold myself responsible for his criminal actions. So today I
am trusting and encouraging that this court hold him accountable
for the many scars he has left us with. [1/24/18 Tr at 9.]

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Almost 150 other victims shared similar stories. About a dozen more indirect

victims—mostly family members—also spoke, including parents who struggled to

forgive themselves for taking their children to see Nassar. (See generally 1/16/17–

1/24/18 Sentencing Trs.)

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’

imprisonment, consistent with the plea agreement. (1/24/18 Tr at 95–109.)

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

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statements. Nassar was sentenced to 40 to 125 years’ imprisonment, which will run

concurrent with this Ingham County sentence. 4

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

3 People v Snow, 386 Mich 586, 592 (1972).


4Just as in the Ingham County case, Nassar filed a motion for resentencing in
Eaton County, which the circuit court denied. Nassar also filed a delayed
application for leave to appeal that sentence, which this Court denied. (Mich Ct
App Docket No. 345808.) The Michigan Supreme Court subsequently denied his
application for leave. People v Nassar, ___ Mich ___; 924 NW2d 561 (2019). Thus,
his concurrent Eaton County sentence is final.

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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

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listened to and addressed both sides “promptly, fairly, and impartially.” (8/3/18

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

affect the judge’s future rulings.” (Id.)

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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

Mich Ct App Order, Def App’x F.)

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

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sentence imposed on him by the federal court. (Id.)

This Court grants Nassar leave to appeal two of his claims.

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.)

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STANDARD OF REVIEW

Nassar twice failed to timely raise the issue of disqualification regarding

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

Mich App 111, 117–118 (1996).

In addition to failing to lodge a timely objection, Nassar failed to timely move

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

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post-sentencing conduct was grounds for her disqualification. Specifically, because

many or all of the facts on which Nassar relies were outside of that 14-day window,

2.003(D)(1)(a), he has not properly preserved this challenge either.

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).

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ARGUMENT

I. Any isolated, immoderate comments by the sentencing judge do not


warrant a new sentencing where her conduct was well within
acceptable bounds: she permitted victims to speak per Nassar’s
agreement, considered the appropriate sentencing factors, and
rendered a sentence within the range he approved.5

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

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came with admitting his guilt to criminal sexual conduct against young girls, and

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

5The People have organized their response to address Nassar’s issues


chronologically. First, the People will explain why the judge’s conduct at sentencing
does not warrant granting him a resentencing. Second, the People will explain why
the judge’s conduct post-sentencing does not state a claim that was biased or had the
appearance of bias when deciding his motion for resentencing. As discussed below,
should the Court agree that Nassar is not entitled to resentencing, it need not reach
the issue whether Aquilina’s post-sentencing conduct was appropriate because the
ultimate relief he seeks—a resentencing—is unwarranted.

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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

arguments about the judge’s words at sentencing lack legal force.

A. At sentencing, a judge has wide berth to express the moral


outrage of the community and is not limited to tepid language
in doing so.

A sentencing judge is not limited to cold numerical calculations, weighing the

severity of the crime and the offender like a mathematician crunching numbers.

Strong words are sometimes necessary to effectuate society’s condemnation. There

are, of course, outer bounds to a judge’s conduct, but critical or even “hostile”

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comments to a party are typically insufficient evidence to “pierce the veil of

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

to be a thoroughly reprehensible person.” Liteky v United States, 510 US 540, 551

(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

judge’s detached neutrality necessarily disappears.”). Given the heavy

“presumption of fairness and integrity” that judges enjoy in Michigan, a party

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challenging that presumption bears a heavy burden to prove otherwise. Mahlen

Land Corp v Kurtz, 355 Mich 340, 351 (1959).

Once Nassar’s guilt had been determined, the judge’s role shifted from

exclusively being an impartial arbiter to an entity carrying the voice of the

community. Judge Aquilina recognized this very principle at sentencing, properly

understanding her role after Nassar disavowed his presumption of innocence:

[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

into consideration everything that’s happened.” (1/24/18 Tr at 103); (see also

1/24/18 Tr at 101) (“[S]o up until the time you pled I believed that maybe there was

a defense here, despite the felony information.”). This recitation is entirely

consistent with Liteky, 510 US at 551.

B. The sentencing judge considered the proper factors in


fashioning a sentence within the range Nassar agreed to.

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

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reformation of the offender, (b) protection of society, (c) the disciplining of the

wrongdoer, and (d) the deterrence of others from committing like offenses.” Id.

Judge Aquilina considered the likelihood for Nassar’s reformation, id.,

finding it to be extremely low given his decades-long pattern of victimization.

(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)

(“[Y]ou do not deserve to walk outside of a prison ever again.”).

The Court also evaluated Nassar’s lack of remorse, as evidenced by a letter

he authored while in jail in which he disparaged the sentencing proceedings,

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

court may consider a defendant’s lack of remorse in imposing a sentence). Finally,

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

prejudge Nassar. See, e.g., (1/17/18 Tr at 9) (“All of this has to be considered at

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sentencing. I haven’t made up my mind. I have ideas.”) (emphasis added); (1/18/18

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

within the range Nassar agreed to.

16
C. Nassar has not shown that the sentencing judge had a personal
animus derived from extraneous information.

Nassar first claims that MCR 2.003(C)(1)(a) applies, which warrants

disqualification where “[t]he judge is biased or prejudiced for or against a party or

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

for disqualification where it is derived from outside-the-record information. See

Ullmo ex rel Ullmo v Gilmour Acad, 273 F3d 671, 681 (CA 6, 2001) (a bias sufficient

to justify recusal must be “a personal bias as distinguished from a judicial one,

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arising out of the judge’s background and association and not from the judge’s view

of the law”).

1. Nassar points to nothing in the record prior to


sentencing supporting his contention that the judge was
biased against him; the record shows that, until he pled,
she was attempting to ensure he receive a fair trial.

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

possibility of his legal defense:

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).]

Nassar points to no evidence prior to sentencing that would suggest a bias

against him. Because there is none. Indeed, the judge’s pre-sentencing conduct

evinces a clear understanding of her role to adjudicate Nassar’s case impartially

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and protect his right to a fair trial. Just two salient examples will suffice.

First, the judge denied the People’s pre-trial motion to proffer evidence that

Nassar had admitted to the possession of child pornography depicting girls of a

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

Nassar. (11/3/17 Mot Hr’g at 30–31.)6 Would a judge so irredeemably biased

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

judge without external biases.

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 this America defendants are innocent until proven guilty


beyond a reasonable doubt. I am frightened not just for defendant but
also for the victims here with the -- with what’s been coined as the mob
mentality. [(3/29/17 Hr’g at 11.)]

In response, a group of victims went to federal court to challenge the scope of the

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order, arguing it was so broad that it impugned the First Amendment. The federal

district court entered a temporary restraining order halting enforcement of the

judge’s order. Denhollander v Aquilina, 1:17-cv-305 (W.D. Mich. 2017).

Subsequently, Judge Aquilina entered a narrower revised order. (4/12/17 Order

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?

2. The judge’s harsh language at sentencing was justified


and any intemperate remarks were isolated.

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

a few isolated instances where the judge’s comments approached intemperateness.

One of the more severe statements the judge made found her recognizing the limits

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of her judicial authority:

I will decide at sentencing how long. The plea agreement, which,


as I said, I will honor, but on the tail end I’ll make that determination.
How much is a young girl’s life worth? Our constitution does not allow
for cruel and unusual punishment. 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.

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

prohibition on cruel and unusual punishment, Michigan’s prohibition on the death

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

personal views or the views of some members of the community.

This statement is akin to one this Court recently found devoid of bias at a

sentencing. In 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) (attached as App’x G), the sentencing judge stated:

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

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enough to get [it] back. I just wish one thing would have happened, I
wish Officer Pruss [sic] would have had a [sic] opportunity to get home
before you found that cell phone and been there the second time you
came back. Because you know what? You might not be going to the
Department of Corrections for 10 years, you might be getting buried in
some cemetery, because that was a home invasion in the first degree
and the worst—and the worst I’ve ever seen in almost 30 years.
[Mitchell, unpub op at *5.]

This Court recognized the court’s “frustration” but, when considered in context, the

statement was an expression of the severity of the offense, “not an expression of

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.

Here, Judge Aquilina similarly expressed frustration with Nassar—with his

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

remorse—and expressed it in a manner that channeled the community’s frustration

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

not grounds to find personal bias.

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D. Nassar has not shown the judge’s conduct at sentencing bore
an appearance of impropriety.

Nassar appears to contend that the judge showed an “appearance of

impropriety” at sentencing, which would be a ground for disqualification. MCR

2.003(C)(1)(b), citing Canon 2 of the Michigan Code of Judicial Conduct. Canon 2

concerns specific things a judge should refrain from, like:

 allowing family, social, or other relationships to influence


conduct,

 appearing as a witness in a case absent subpoena,

 engaging in membership activities that discriminate based on


race or gender, or

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

respect.” Canon 2, Section B. These positive mandates are largely incapable of

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

integrity, impartiality and competence is impaired.” Kern v Kern-Koskela, 320 Mich

App 212, 232 (2017).

The People note that Nassar’s extensive argument about the Canons, (Def Br

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at 27–38), are better addressed to a different venue. Nassar does not make an

argument about why the Canons—other than Canon 2, which is specifically

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

Conduct creates an appearance of bias requiring recusal.”). Nonetheless, Judge

Aquilina’s conduct at and before sentencing does not violate those Canons and

betrayed no appearance of impropriety.

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

challenge the content of victim impact statements.

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.”

(Def Br at 32–33.) The former maintains that a “judge should be unswayed by

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

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the administration of justice.” Canon 4. She did not advocate any reforms,

“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

Tr at 22–23, 56; 1/18/18 Tr at 116.) Surely, Nassar’s block-quote of Judge Aquilina

is not a disqualifying sentiment: “There’s also a common threat of regret and

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

about, and fought against.” (Def Br at 33, quoting 1/17/18 Tr at 166–167.) No

24
reasonable person would think that advocacy for a public reckoning with sexual

assault equates to partiality.

Nassar contends that Aquilina violated subsection Canon 3.A(3), which asks

a judge to be “patient, dignified, and courteous.” Nassar attempts to impute stray

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

need everyone to be quiet. I still have contempt powers.” (1/24/18 Tr ta 105.)

Nassar also argues Judge Aquilina failed to properly halt any brief

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disparagement of Nassar’s trial counsel. (Def Br at 35.) But the judge mounted a

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

to counsel.” (1/24/18 Tr at 94.)

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

to carry out judicial responsibilities with integrity, impartiality and competence is

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.

Judicial disqualification based on due process grounds is another angle

Nassar raises, but relief under the Constitution is reserved for only the most

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extreme cases. Both the United States and Michigan Supreme Courts have cast

severe doubt on whether the Constitution is even implicated in a challenge to so-

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

constitutional requirement under the Due Process Clause.”) (quotation marks

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

direct, personal, substantial, pecuniary interest” in a case. See Caperton, 556 US at

877, 887 (relief warranted where West Virginia Supreme Court Justice voted to

reverse judgment against corporation whose CEO donated $3 million to the

Justice’s campaign); Cain, 451 Mich at 513 n 48. Nassar makes no allegation of

such an interest evident at sentencing.

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

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a judge sitting both as a one-person grand jury and as the fact-finder of defendant’s

guilt. Id. at 136–137.

For these reasons and given the factual basis discussed above, Nassar’s

independent due process claim fails.

F. Other states confronted with more egregious statements have


consistently declined to order a new sentencing.

Judges in other states have uttered far more troubling comments at

sentencing but were nonetheless found not to warrant resentencing. In State v

Schaeffer, 295 Kan 872, 874 (2012), for example, the judge addressed the defendant:

The word ‘heinous’ is defined as somebody who is grossly wicked,


reprehensible, abominable. Those terms fit you to a T. You can sit here

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.

The mere fact that I have read in the [presentence investigation


report] about all the foster homes that you were in, that you were in
my old hometown at one time, frightened me. When I read that I
thought, ‘My God! I’ve got relatives in that town. I’ve got nieces,
nephews, great-nieces, great-nephews.’ You don’t care. [Schaeffer, 295
Kan at 874.]

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

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he did what he wanted to, the [defendant] would be ‘removed from the courtroom in

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

statement made by a judge at a sentencing might be wholly unreasonable at an

arraignment.”). Similarly, a reasonable observer viewing Judge Aquilina’s

28
challenged comments at sentencing should have to grapple with the rest of the

record—the seemingly endless stream of victims who approached the podium.

***

In sum, Larry Nassar’s reprehensible conduct required condemnation. 8 At

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

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he was entitled to resentencing largely because she has become enmeshed in the

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

Court should not disturb that finding.

8 “[R]etribution is an expression of the community will . . . .” Stephen Gillers,


Deciding Who Dies, 129 U Pa L Rev 1, 60 (1980). Stephen Gillers, a recognized
legal ethics expert, opined on the judge’s comments in this very case, stating, “While
what the judge said is quite strong, it is not improper. . . . At sentencing, judges
speak the conscience of the community on behalf of the victim. They are no longer
umpires, which is their role during trials.” Available at
https://www.huffingtonpost.com/entry/larry-nassar-judge_us_
5a6a204ee4b06e25326595eb

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

has given an “appearance of impropriety,” which is grounds for disqualification.

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

carry out judicial responsibilities with integrity, impartiality and competence is

impaired.” Kern, 320 Mich App at 232.

Chief Judge Garcia reviewed de novo Nassar’s motion to disqualify Judge

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

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that because his Ingham sentence would run consecutive to his 60-year federal

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

Judge Aquilina’s statement to be an “attempt[] to impress upon the Defendant his

good fortune that he was protected by our Constitution,” and to “communicate[] to

the survivors that she understood the depth of society’s visceral natural desire for

vengeance.” (Id.) “Such passionate elocution is not the basis of disqualification.”

(Id.)

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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

“therapeutic benefits” of acknowledging the survivors’ words permits them “to

regain a sense of dignity and respect rather than feeling powerless and ashamed.”

(Id. at 5 (cleaned up).)

Judge Garcia also addressed Nassar’s assertions about Judge Aquilina’s post-

sentencing conduct, finding that Nassar’s “wish[] to be resentenced before a judge

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

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publicity.” (Id.) In sum, Judge Garcia found “there is no picture, tweet, like, share

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.)

B. Judge Aquilina’s post-sentencing conduct does not warrant


Nassar relief.

Nassar’s challenge to Judge Aquilina’s appearance of propriety rests largely

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”

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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

App’x T), as an additional ground showing her bias or appearance thereof—evidence

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

was not part of the lower court record.”).

The People will address each of his three main claims in turn, though Chief

Judge Richard Garcia’s finding bears repeating:

Defendant believes that media articles and public appearances after


the fact have made the judge unqualified to review his sentence. There

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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 affect
the judge’s future rulings. [8/14/18 Chief Judge Garcia Order, Def
App’x C.]

This finding is not an abuse of discretion. Roscoe, 303 Mich App at 647.

First, as she explained at the hearing on Nassar’s motion to disqualify her

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

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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

disposed towards the defendant, who has been shown to be a thoroughly

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

impartiality in deciding Nassar’s motion for resentencing. The predominant reason

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

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victims, during the sentencing hearings and publicly doing so afterward, constitutes

the recognition that many of the victims lacked until they stepped into that

courtroom. Judge Aquilina’s provision of “emotional restitution on behalf of our

State,” did not, as the Chief Judge determined, require disqualification. (8/14/18

Chief Judge Garcia Op and Order at 5.)

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.”).

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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

demonstrated Aquilina showed an appearance of impropriety in her conduct after

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

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not so severe that she was unable to hear his motion for resentencing.

C. Even if this Court finds her post-sentencing conduct improper,


it should hold that Nassar is not entitled to resentencing.

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

record about what happened at sentencing is static and incapable of further

development, so the question before this Court is ripe for decision. Any hearing by

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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

have disqualified her, this Court should affirm.

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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

judge’s sometimes extreme comments at his sentencing were understandable.

Given the circumstances, Nassar has not shown that the judge was biased, nor that

she revealed an appearance of impropriety. Accordingly, even if this Court finds

that the judge’s post-conviction social media use improper, it arose only after

sentencing; the judge’s extensive efforts up to and at sentencing to render a fair

sentence remain.

The People respectfully request this Court affirm.

Respectfully submitted,

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Dana Nessel
Attorney General

Fadwa A. Hammoud (P74185)


Solicitor General
Counsel of Record

/s/Christopher M. Allen

Assistant Attorney General


Attorneys for the People
Plaintiff–Appellee
Criminal Appellate Division
P.O. Box 30217
Lansing, MI 48909
517.335.7650
P75329
Dated: May 9, 2019

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