Judge Aquilina denies request to remove herself from hearing motion challenging Nassar sentence

Matt Mencarini | Lansing State Journal

Show Caption Hide Caption Victims of Larry Nassar Receive Arthur Ashe Courage Award at ESPYs Survivors of the Larry Nassar abuse scandal created a powerful moment when they gathered onstage at the ESPYs on Wednesday to accept the Arthur Ashe Courage Award.

LANSING - Larry Nassar's criminal case is back in Ingham County Circuit Court.

Ingham County Judge Rosemarie Aquilina denied a motion Friday that sought to disqualify her from hearing Nassar's challenges to the sentence she imposed in January.

Aquilina refuses to recuse. Aquilina refuses to recuse.

Her denial sets up potential appeals that will decide whether Aquilina or another judge considers a motion to resentence the former Michigan State University and USA Gymnastics doctor who sexually abused hundreds of women and girls.

Nassar's court-appointed appellate attorneys filed two motions last week, one for Aquilina to be disqualified from the case and the other for Nassar to be resentenced on seven sexual assault charges.

A hearing on the motion for resentencing had been scheduled for Aug. 10 in Ingham County Circuit Court, but the court's online records as of Friday afternoon show that it has been canceled.

Nassar's attorneys now are asking that Ingham County Chief Judge Richard Garcia review their motion, the AG's response and Aquilina's decision to deny the motion.

If Garcia decides to remove Aquilina from the case, it will then be assigned to another Ingham County Circuit Court judge, unless none decide to take the case. If that happens, the state Court Administrator's Office will assign the case to a judge from another county.

Either party could appeal Garcia's ruling. Andrea Bitley, a spokeswoman for the AG's Office, declined to comment on whether the office would appeal if Garcia removes Aquilina, saying it was too far down the road to comment.

Eaton County officials said Friday afternoon that Nassar's appellate attorneys had not yet filed any motions there.

Nassar's Ingham case back in court

Nassar's attorneys reiterated the arguments they made in the motion and response to the Attorney General's Office response, saying that Aquilina's comments during and after the sentencing hearing show that she's biased against Nassar.

"Bias? No," Aquilina later said during her ruling. "Justice? Yes."

Malaika Ramsey-Heath, one of Nassar's court-appointed appellate attorneys, told Aquilina that she has clearly taken interest in the public adoration about her sentence and the way she handled the sentence.

She added that justice cannot be served with Aquilina remaining on the case and that Aquilina should have known that the case could come back to her on appeal.

In its response to the motion for Aquilina to be disqualified, the Michigan Attorney General's Office, which prosecuted Nassar, argued that Nassar's attorneys had not sufficiently proved that Aquilina acted improperly. The office cited Aquilina's denial of a prosecution motion seeking to admit Nassar's child pornography convictions during his trial on sexual assault charges and her gag order limiting public comments by victims as indications that she wasn't biased against Nassar.

The AG's Office also defended Aquilina's comments during the sentencing, saying she "voiced the community's moral outrage" at Nassar's criminal conduct.

On Thursday, Nassar's attorneys filed a response to the AG's Office response to their initial motion.

"It is difficult to imagine a more fervent expression of antagonism (while on a world stage) wishing one had the power to authorize a person's death, or hope for prison anarchists to inflict cruel and unusual punishment; that is exactly what happened at sentencing in the current case" they wrote of Aquilina's comments during the sentencing.

"It is even more difficult to imagine a more fervent expression of favoritism of the victims than what has been expressed by the sentencing judge in this case."

Nassar's attorneys also included screenshots of social media posts Aquilina has made since the sentencing ended.

Chief Deputy Attorney General Laura Moody argued that Aquilina's comments during the sentencing were an "appropriate and compassionate" response to the victims. She also pointed to the gag order Aquilina issued and her ruling against the prosecution on a motion prior to Nassar's guilty pleas as signs of no judicial bias.

"If there's anyone who can be called thoroughly reprehensible, it's Larry Nassar," Moody said, while discussing the intense emotion exhibited during the seven-day sentencing that saw victim-impact statements from 156 women and girls.

"I understand the prosecutor's argument that they are signs or words of support," Ramsey-Heath told Aquilina during Friday's hearing. "But the truth is, when it comes to sentencing, they are an integral part of that equation. And they are an integral part of this court's consideration.

"And when this court has gone so far so often to express such high levels of support and on the other hand, a disdain for Dr. Nassar, deserved or not in the eyes of this court, that is what has been put out to the public at this point."

Although there was no formal motion at the time, Aquilina's potential bias in the case was previously addressed in a March 2017 hearing when she issued the gag order that prevented victims from speaking publicly about the case and their abuse. Aquilina is an adjunct professor at Michigan State University's College of Law, a private school that operates as an affiliate of MSU, and her daughter works at the university.

Nassar worked for MSU for nearly 20 years and in March 2017 Aquilina said she could be fair and impartial in the case. At the time, the AG's Office and Nassar's attorneys, Matt Newburg and Shannon Smith, agreed with Aquilina.

In January, Aquilina sentenced Nassar to 40 to 175 years in prison and told him that she was signing his "death warrant," a comment Nassar's attorneys pointed to as a reason, among others, that Nassar should be resentenced and by a different judge.

Both Aquilina and Judge Janice Cunningham, who sentenced Nassar to 40 to 125 years in prison in Eaton County, followed the sentence guidelines included in Nassar's plea agreements.

Related: Detective who led Larry Nassar investigation takes on new role in MSU Police Department

Related: Prosecutor in Nassar case takes new job with state sexual assault, domestic violence board

Aquilina spent 25 minutes of the nearly 50-minute hearing defending the way she handled her actions and the comments she's made during and after the sentencing, including her social media posts and public comments.

At one point, she held up a large, white binder about 4 inches thick and said it contained all the media requests she has not yet responded to, evidence she said showed that she isn't seeking the public spotlight.

She also said they she had to trademark her name in response to T-shirts and other items people were making, adding that she planned give any profits to a foundation she planned to make.

Aquilina said she was twice approached to run for the state Supreme Court after the sentencing and said no both times, despite being assured she would win.

"There's nothing that I have done that prejudices me on this case," Aquilina said moments before formally denying the motion for her disqualification. "Should this case come back to me I will retain it and correct any error I have made."

She said Nassar had opportunities during the sentencing hearing to withdraw his plea agreement, but he denied. Aquilina said Nassar is now simply having "buyer's remorse" and is looking for a shorter sentence.

Bitely, the AG's Office spokeswoman, said Aquilina made the right decision during the hearing on Friday and has shown no bias.

"What happened today was someone who was convicted and who pled guilty to molesting women and girls is trying to revictimize them," she said. "And we're not going to stand for that."

This isn't the first time Aquilina has been asked to recuse herself from a high-profile Ingham County case. She faced a similar motion when former Ingham County Prosecuting Attorney Stuart Dunnings III was facing prostitution-related charges.

That case also was prosecuted by the AG's Office and Dunnings was arrested and charged while he was the elected prosecutor. The case was assigned to Aquilina for sentencing after Dunnings pleaded guilty in District Court.

She recused herself, but did so because she expected to be removed from the case by the chief judge if she didn't. She said during the hearing that she felt she could be fair and impartial in sentencing Dunnings, who was later sentenced by Genesee County Circuit Court Judge Joseph Farah to a year in county jail and two years of probation.

That sentencing hearing was held in November 2017.

Dunnings served 10 months in the Clinton County jail.

Related: Inside the investigation and prosecution of Larry Nassar

Related: Michigan State and 332 of Larry Nassar's victims reach 'historic' $500 million settlement

Related: Larry Nassar and a career filled with ‘silenced’ voices

Contact Matt Mencarini at (517) 267-1347 or mmencarini@lsj.com. Follow him on Twitter @MattMencarini.