Non-lawyers and journalists mostly cheered Ingham County Court Judge Rosemarie Aquilina’s grandstanding, self-indulgent, unprofessional and unethical handling of Dr. Larry Nassars’s sentencing yesterday. Nobody bothered to seek the opinion of criminal lawyers and judges, much less ethicists. If they had, they would have heard a loud, collective, “Ugh.”
It was a disgrace. I object to victim impact statements in sentencing, a terrible idea pushed by victim’s rights advocates, because it misrepresents the purpose of the justice system. The objective is to punish citizens for violating laws, not to get revenge for victims or their families, not to get “closure,” and not to satisfy emotional needs. The process isn’t personal, or shouldn’t be. If it is personal, then it isn’t objective. Judge Aquila threw all of that out the window as she played to the cameras and the mob.
Criminal defense lawyer and blogger Scott Greenfield aptly explained what was unethical about the parade of victims:
Nassar’s sentencing hearing is a clear example of a judge straying from promoting the public’s trust in a fair and impartial judiciary. Let’s begin with Judge Aquilina’s decision allowing over one hundred and sixty victim impact statements across seven days.
Victim impact statements are theoretically allowed as a means of giving a crime victim the chance to describe their experience to the court. Defense lawyers aren’t typically fans of them, and too many can arguably have a prejudicial effect against a defendant.
Contrast Nasssar’s hearing with that of Dylann Roof, the Charleston shooter responsible for the deaths of nine churchgoers. Judge Richard Gergel admonished the State’s list of thirty-eight statements, cautioning against a “spectacle”. David Bruck, the attorney assigned to advise Roof, claimed the proceeding violated “every principle restraining victim impact statements under the 8th Amendment.”
Strangely, no advocate stood to question admitting impact statements from over 160 victims, including gold medal Olympians, might prejudice a jurist’s decision. It’s hard to imagine Judge Aquilina even entertaining such an argument.
It is also hard to imagine Nassar’s sleepwalking defense attorney making such an objection. She was praised by the judge for taking on an unpopular client, but taking him on isn’t enough. She was supposed to protect his rights.
Then the judge delivered her sentence, turning her moment in the national spotlight into a self-aggrandizing, virtue-signalling, vainglorious soliloquy to the gallery. This was one more example of why televised court proceedings are a bad idea.
I’m going to give you the whole transcript of her remarks, bolding the sections before my comments. Cut to the bolded sections if you don’t care to experience the full measure of Judge Aquilina’s narcissism. One section,, however, was left out of all the published versions that I could find:
“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.”
The judge apparently had this excised from the official transcript. No wonder. She is advocating prison rape and by doing so, endorsing it. Michigan’s judicial ethics standards require in part,
“A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.”
Needless to say—I hope—‘I wish I could have you gang raped’ does not meet this standard. It is also troubling that a judge would distort the record. She said what she said, and the public should know she is the kind of jurist would say something like that—an unethical one. The state’s judicial panel should also know.
Here is the rest:
“Sir, I hope that’s true. I hope you are shaken to your core; your victims are clearly shaken to their core. And I know there are still some who ask, ‘are you broken because you got caught?’
First, let me address counsel. I agree with your words in regard to no one should blame defense counsel and vigilante crime is not tolerated. So I hope that no one will do anything untoward against counsel, their children, their families, their firms, their cars, whatever. That is a crime.
Crime plus crime solves absolutely nothing. Please respect their job; it’s a difficult one. I know; I’ve been in their shoes. And the 6th Amendment does guarantee each defendant the right to counsel. It doesn’t matter what the defendant has done, they have the right to counsel. I also want to say, that being said we also have the First Amendment, so you’re all free to have an opinion. There’s always a balancing act between the first amendment, the sixth amendment, all of the due process, and other amendments to the constitution. They’re all valuable in their own way, and that’s why we have an organized and just society. And that’s why we are here today because this defendant has been brought to justice. Do not make it worse, please.
Before I get to sentencing I want to talk about a couple of things. And first, I’ve said what I need to say to the victims. I have a little bit more to say: You are no longer victims, you are survivors. You’re very strong and I’ve addressed you individually. Before I say anything further, I don’t know if you all know this—and I know that the world is watching—I know this because I’m on the bench everyday and this isn’t the only heinous crime that appears in this court.
The National Crime Victimization Survey that is done by the Justice Department annually reports that 310 out of every 1,000 assaults are reported to police, which means that two out of three go unreported. The voices of the survivors have asked everyone to report, keep your voice up, Rachel’s voice (victim Rachel Denhollander who was the last to address Nassar before the sentencing) hopefully will raise these numbers of reports and all of your voices. But that statistic does not include children 12 and under. One in 10 children will be sexually abused by their 18th birthday; one in seven girls; one in 25 boys by their 18th birthday.
That means that in the United States, I’m not talking about any other country, but in the United States, 400,000 babies born in the U.S. will become victims of child sexual abuse.
Comment: These are garbage stats, based on estimates by activist, and should not be stated as fact.
It stops now. Speak out like these survivors; become part of the army.
Comment: This is not appropriate judicial language, nor is it her role to be an activist or a demagogue. This case stops nothing. The judge is positioning herself as a champion or making political speeched when all she is doing is passing out a sentence.
I do one case at a time. And I really so very much appreciate all of the ‘thank yous.’ I read some of the Twitters and the Facebooks, all of what’s going on in the media. I’m not special. I’m doing my job. If you come into my courtroom any Wednesday and watch sentencing, I give everybody a voice. I give defendants a voice, their families when they’re here. I give victims a voice. I try to treat everybody like family because that’s the justice system I was raised to believe in.
I came to this country stateless. I’m naturalized. My father’s Maltese, my mother’s German, and I was raised on old country values. My grandmother always told me and my parents always told me, my grandfather too, that America is the greatest country. I believe that. That’s why I served in the military, that’s why I’ve always done community service. I’m not really well liked because I speak out. I don’t have many friends because I speak out. You ask me a question, you better be ready for an answer.
I speak out because I want change, because I don’t believe in hiding the truth. And I’m not saying I’m always right. But I try.
Comment: Gee, judge, you’re terrific! Later the judge says the case is not about her, which in light of the previous extended self-glorifying is hilarious.
I also don’t believe that one size fits all when it comes to sentencing. Another reason I listen. I know there are some judges that for every crime give the same punishment. I don’t think that’s justice. I believe in individualized sentencing. I follow the Constitution. And I believe our system works. I also believe these survivors.
Comment: Foul. These survivors were not under oath, cross-examined or giving evidence. Nassar did not plead guilty to what the survivors say he did. “I believe the survivors” is more endorsement of the #MeToo fallacy that accusers must be believed. The system doesn’t work that way.
Now there’s case law about how I can consider what I can consider. And first and foremost, my sentence reflects the seven in regard to who the defendant pled to. But the remainder of you—161 others—add to the credibility of the seven. So technically, I’m considering everything, everyone because your crime, all of your crimes, the depth of them have cut into the core of this community and many communities and all of the families, and people we don’t even know.
Comment: In other words, her sentencing has been biased by the victim statements, which are not evidence in the case, and she thinks that’s admirable.
And sir, the media has asked me to release your letter. I’m not going to do that. Counsel may object, the media may object, but there is some information in here that troubles me in regards to the victims. And I don’t want them re-victimized by the words that you have in here. But I do want to read some more of your letter. And the reason I want to do that is because I’ve considered it in sentencing, as an extension of your apology and whether I believe it or not. So I want you to hear your words. I’ve already read some and I’m not reading every line.
So let me begin.
“The federal judge went ballistic at sentencing since I pled guilty to the state cases and spent 10% on the federal case and 90% on state cases and civil suits. She gave me 60 years instead of 5 to 20 years (three consecutive 20-year sentences). I pleaded guilty to possession of porn from 09 2004 to 12 2004. Four months.The prosecutor even admitted that I never belonged to any porn sites, any chat rooms, was not on the dark web, and also, they could not prove I viewed it. It was all deleted, of course. I shared my electronics, and I couldn’t prove that. So for over four months of porn possession to 2004, I was sentenced 60 years. Not proper, appropriate, fair.“
Going down a few lines.
“What I did in the state cases was medical, not sexual, but because of the porn I lost all support, thus the reason for the state guilty plea.“
Let me move down further.
“So I’m trying to avoid a trial to save the stress to my community, my family, the victims, yet look what is happening. It’s wrong.“
Let me move down further.
“I was a good doctor because my treatments worked and those patients that are now speaking out were the same ones that praised and came back over and over and referred family and friends to see me. The media convinced them that everything I did was wrong and bad. They feel I broke their trust. Hell hath no fury like a woman scorned. It is just a complete nightmare. The stories that are being fabricated to sensationalize this. Then the AG would only accept my plea if I said what I did was not medical and was for my own pleasure. They forced me to say that or they were going to trial. And not accepting the plea, I wanted to plead no contest, but the AG refused that. I was so manipulated by the AG, and now Aquilina, and all I wanted was to minimize stress to everyone like I wrote earlier.‘”
Going down a little bit further.
“In addition with the federal case my medical treatments with the Olympic/National Team Gymnastics were discussed as part of the plea. The FBI investigated them in 2015 and found nothing substantial because it was medical. Now they’re seeking the media attention and financial reward.“
Then the judge theatrically tore up the letter and threw it away.
Comment: More theater, a demonstration of contempt. This is unprofessional, and celebrates emotion. Sentencing is about the law, not emotion.
Would you like to withdraw your plea? (Nassar: No, your honor.) Because you are guilty, aren’t you? Are you guilty, sir? (Nassar: I said my plea, exactly.)
The new sign language has become treatment. These quotes, these air quotes, I will never see them again without thinking of you and your despicable acts. I don’t care how they’re used, I will always think of “quotes” and the word “treatment.” It was not treatment. What you did was not medical. There is no medical evidence that was ever brought.
When this case first came to me, and I have told you this, and I apologize to the Olympians and the athletes, 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.
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 cutoff.’ 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. But also because my two brothers and my father are very known and respected doctors. Real doctors and real treatments based on medical research. Dedicated to healing. I haven’t considered that in this case, but I heard from your survivors now that they trust doctors like I trust the doctors in my family and the doctors I go to.
But I still thought there’s a defense of medical treatment and there are changes in the medical community everyday for the betterment.
So up until the time you pled I believed maybe there was a defense here despite the felony information. I was ready for trial. Your counsel was ready for trial. The attorney general’s office was ready for trial. You sir, decided to plead because there was no medical treatment. You did this for your pleasure and your control.
This letter, which comes two months after your plea, tells me that you have not yet owned what you did. That you still think that somehow you are right, that you are a doctor, that you’re entitled, you don’t have to listen, and that you did treatment.
I wouldn’t send my dogs to you sir. There’s no treatment here. You finally told the truth.
Comment: This is just insulting the defendant, who is shackled, and at her mercy. Why she didn’t make scary faces at him too, or moon him, I don’t know. Completely unprofessional.
Inaction is an action. Silence is indifference. Justice requires action and a voice and that is what has happened in this court. One hundred and sixty-eight buckets of water were placed on your so-called match that got out of control.
I also, like the attorney general want to thank law enforcement for their investigation. I also want to be the voice for these survivors who asked law enforcement to continue their fine work and to also include the federal government. There has to be a massive investigation as to why there was inaction, why there was violence. Justice requires more than I can do on this bench.
Comment: Actually, it requires less than what she was doing.
I also want to applaud all of the counsel in the attorney general’s office. I want to also applaud defense counsel. You all have done fine work. You’ve made me proud of our legal system. We all work together for the betterment of our community and that is law enforcement, prosecutors, defense counsel, investigators—there are countless people. It’s the only way our system works. We need this balance. So all of you when I look at myself as lady justice, my arms are like this, they are balanced.
Comment: <Gag!> We know, we know! You’re terrific! You told us already!
Prosecution, defense, they are balanced. It only starts to tip after there’s a plea and after I take into consideration everything that’s happened. So I want everyone to understand I’ve also done my homework. I always do.
Comment: BOY, are you ever terrific!
People v. Waclawski, I’m sure I slaughtered the name. I apologize, but it is spelled w-a-c-l-a-w-s-k-i. It’s a 2009 case, and in it—and I want you to clearly understand—it says “plainly the law does not limit victims’ impact statements to direct victims.” It doesn’t say, and I have found nowhere that limits me from having you hear all of your victims. As I said before when counsel came to me and said we’re not going to go to trial despite our court having sent out 200 or the 800 juror requests, and they told me the plea, and would I consider in lieu of trial? There was the agreement between us because I always, and they know it, they are familiar with me, let people speak.And we had a discussion about which victims, and of course, there was an objection to one of them, but I let it come in anyway. That was part of the plea that you entered into to allow the impact statements. Because after that discussion, I know your lawyers, as good as they are, sat down with you and said the judge is going to allow this. And when it comes down to it, I know it also because this was signed by the attorney general, by defendant, and by defendant’s counsel on Nov. 22, 2017.
Comment: She knows she might get criticism for allowing all the victims’ statements, so this is an effort to get her excuses up front.
Aside from the letter that you wrote a couple of months after your plea, which tells me you still don’t get it. There’s something I don’t understand and I want to make clear. Sir, you knew you had a problem. That is clear to me. You knew you had a problem from a very young age, even before you were a doctor. You could have taken yourself away from temptation. And you did not. But worse yet there isn’t a survivor who hasn’t come in here and said how world-renowned you were. I trust what they say. You could have gone anywhere in the world to be treated. You could have gone to any resort, any doctor, place where you could get treatment; in Europe they have all sort of hidden places for things like this. No one had to know, you could have found some treatment, some help, taken some medicine.
Comment: This is batty. I have never heard of a judge holding a pathological defendant responsible for not realizing that he’s crazy and that he needs treatment. Not seeking treatment is not part of his crime. Taken some medicine? You know, that well-known medicine that cures sociopaths, sexual predators and child molesters?
You would have done that if you had cancer. I know you would have; you’re about self-preservation. But you decided to not address what’s inside you that causes this urge, that causes you to be a sexual predator. So your urges escalated, and based on the numbers that we all know go unreported, I can’t even guess how many vulnerable children and families you actually assaulted.
Comment: If a witness made these statements, they would be stricken as speculation without expertise. She’s testifying,
Your decision to assault was precise, calculated, manipulative, devious, despicable. I don’t have words because your survivors have said all of that and I don’t want to repeat it. You can’t give them back their innocence, their youth, you can’t give a father back his life, or one of your victims’ her life. You can’t return the daughter to the mother, the father to the daughter.You played on everyone’s vulnerability. I’m not vulnerable. Not to you, not to other criminals. At that podium I swore to uphold the constitution and the law and I am well trained. I know exactly what to do.
Comment: Have I said yet how wonderful you are? Please, keep telling us.
At this time, I’m going to do it. And I want you to know as much as it was my honor and privilege to hear the sister survivors, it is my honor and privilege to sentence you because sir, you do not deserve to walk outside of a prison ever again. You have done nothing to control those urges anywhere you walk destruction will occur to those most vulnerable.Now I am honoring the agreement; I’m also honoring what has been requested of me. I want you to know I’m not good at math. I have a cheat sheet. I’m only a lawyer. I know that you had a lot of education in physics and math. But I have a cheat sheet. It is my privilege on counts 1, 2, 5, 8, 10 and 18 and 24 to sentence you to 40 years. And when I look at my cheat sheet, 40 years, just so you know and you can count it off your calendar, is 480 months.
Comment: It is unprofessional to taunt a defendant. It is unprofessional to say, in effect, “I LOVE that I get to send you to jail.” It degrades the process, no matter how much satisfaction it may give to victims.
The tail end, because I need to send a message to the parole board in the event somehow God is gracious, and I know he is, and you survive the 60 years in federal prison first, and then you start on my 40 years. You’ve gone off the page here as to what I’m doing. My page only goes to 100 years.Sir, I’m giving you 175 years, which is 2,100 months.
Comment: Writes Greenfield, correctly,
Judge Aquilina’s sentence of up to 175 years in addition to Nassar’s 60 year Federal sentence flies in the face of the 8th Amendment. She could have chosen a sentence reflecting the charges of the seven young women who accused Nassar of sexual assault. Instead, she used one hundred and sixty one other victims’ experiences while handing down life plus cancer.
Time will tell whether Nassar’s counsel or another attorney takes this decision and files an appeal on the grounds of cruel and unusual punishment. Judge Aquilina’s antics certainly give credibility to an appeal on those grounds, but in the era of #MeToo it’s hard to say whether a lawyer is ready to stake his career on an appeal of such a high profile sexual assault case.
Sad but probably true.
I’ve just signed your death warrant. (crowd begins to applaud)
Comment: That statement is inexcusable. It breaches basic judicial ethics standards. It’s also not true.
I need everyone to be quiet. I still have contempt powers, I told you all I’m not nice.I find that you don’t get it. That you’re a danger. You remain a danger. I’m a judge who believes in life and rehabilitation when rehabilitation is possible. I have many defendants who 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. So you will receive jail credit on counts 1, 2, 5, 8, 10 and 18 of 369 days. On count 24, you will have 370 days jail credit. If you are ever out, which is doubtful, you would be required to register with the Michigan Sex Offenders Registration Act, comply with all the requirements of that act, in addition to global position monitoring system, you would wear GPS. You will pay restitution in the amount to be determined based on whatever amounts are submitted and your attorneys can ask me for a restitution hearing so that I can determine what a reasonable amount is for the victims. I am leaving restitution open as long as those victims have issues that can be medically documented. You will comply with DNA testing and pay $60 fee for that. I suspect that was already done. But you owe $60 back to the county for that or law enforcement, whatever. We’ll put it in the right pocket.You must submit to HIV testing and complete counseling associated with HIV and AIDS. You must waive confidentiality and allow test results and medical information obtained from this test to be released to the court. You will pay the court $476 in state costs, you will pay a crime victims assessment in the amount of $130. I’m not imposing any courts costs and fines, and here’s the reason: I don’t know what he has, or what he’ll get in the future. The victims deserve the money; the county will survive one way or another.I’m also going to make recommendations to Michigan Dept. of Corrections for mental health treatment, health treatment, I understand he has medical conditions and he should be allowed to take medicine for that. He should individual and group counseling, treatment for sexual predators, whatever they allow.I’m also going to send a message: I’m not sure, but I believe I read an article that you were treating people in prison and you don’t have a license. Don’t commit any more crimes. I know you don’t have any more lives to give, but you can’t be treating people. You’re not a doctor. So I’m not sure how that’s happening, but I wanted to send that message.You have 21 days to appeal, 10 days to request court-appointed counsel. Do you acknowledge the receipt of your appellate rights? Do you acknowledge it? (Nassar says yes)
Let me just say to the media, again I’m just doing my job, you all want to talk to me. My secretary has informed me that I have a growing stack of requests from print media, television, from magazines from around the world—literally.
This story is not about me. It never was about me.
Comment: ‘Except that for the past half hour, I’ve made it about me.’
I hope I’ve opened some doors, but you see I’m a little stupid because I thought everybody did what I did. And if they didn’t maybe they ought to. But I do this, and have been doing this, you don’t believe me, the keeper of my words is right by my side, and lawyers who are hearing this are shaking their heads saying yep I’ve waited too long as she lets everybody talk. Sometimes people get upset. I don’t care; I get paid the same.
Comment: You are SO brave and courageous. Please: run for Governor!
So as to the media that want to talk with me, I’m not going to be making any statements. It’s just not my story. After the appellate period runs with victims by my side to tell their stories I might answer some more questions. Other than what I’ve said on the record, I don’t know what more I could possibly say. But I’m not going to talk to any media person until after the appeal period, and even then if you talk to me about this case I will have a survivor with me because it is their story.I wanted everyone to hear that from me. I respect all of the media outlets, you’ve done just a fabulous job here. There hasn’t been commotion or upset by this and I do believe in the First Amendment, so I thank you all for being here because it’s an important story for the survivors.As to today, I know there are a lot of survivors, family members, husbands, friends, a lot of people in the courtroom—you have voices. I am going to leave the courtroom, defendant will leave the courtroom, the attorneys may stay, victims, family members, survivors you may stay in the courtroom and talk to the media. You can have your own press conference right here. Spur of the moment sometimes works out the best, doesn’t it.Again I won’t make a statement until after the appeal period, and again if there’s any survivor who at that point—somebody wants to talk to me—I’m sure you’ll be moved onto another story—but if you’re not, please give your names to the victims advocate so I can contact you. Please media do not contact me about this story without a survivor. It’s their story.I thank everyone on this case.Sir, I hope somewhere you have heard everybody words and it really does resonate with you. Anything else for the record? Alright, so the media is asked to stay here with all those lovely people who may want to speak with you. Thank you.
That’s all, for the record.
I can’t improve on Scott Greenfield’s conclusion:
Larry Nassar is a despicable human being for the things he did to so many young women under his care while working under the mantle of the United States Olympics Gymnastics team. That doesn’t give Judge Aquilina the right to throw away her duties to be fair, impartial, and promote public confidence in the judiciary in an attempt to correct what she perceived as manifest injustice.
On a cold day in January, Judge Rosemarie Aquilina faced a difficult choice. She could either make a principled decision and uphold the responsibilities imposed by the Michigan Code of Judicial Conduct, or she could listen and believe the experiences of the young women Nassar assaulted and cast her impartiality to the winds.
As a wise old man would say of the situation: “She chose…poorly.“