FACT CHECK: Could Nassar Get A Lower Sentence Because Of Judge Aquilina’s Comments?
Michigan Judge Rosemarie Aquilina made fiery remarks when she sentenced former Michigan State University and USA Gymnastics doctor Larry Nassar to 40 to 175 years in prison for abusing young gymnasts.
Many people on Twitter said that Nassar could get a lesser sentence if an appeals court finds that the judge was not impartial with her comments.
“Nassar’s conviction and sentence were probably appeal-proof until the judge made the comments. Now he’s got a good shot at resentencing,” said one Twitter user.
“Her words, along with her spiking the football, are likely to earn a reduced sentence on appeal,” said another user.
“Unpopular take: Judge Aquilina’s act today risks giving Nassar a chance to overturn his sentence on appeal,” tweeted one person.
Legal experts say that even if Aquilina’s comments were not impartial, it is highly unlikely that an appeals court would grant Nassar a lesser sentence because his crimes were so severe and he agreed to a minimum sentence in his plea bargain.
Aquilina sentenced Nassar to prison Wednesday after he pleaded guilty to seven counts of criminal sexual conduct for abusing young gymnasts and disguising it as “treatment.” The judge’s behavior and comments throughout the sentencing hearing raised eyebrows.
“Our Constitution does not allow for cruel and unusual punishment,” she said during the sentencing hearing. “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.”
Aquilina dramatically tossed aside a letter from Nassar that said he’d been manipulated into a guilty plea. She allowed spectators to boo and expressed thanks for the praise she got in the news and on social media.
“I’ve just signed your death warrant,” Aquilina said when she delivered Nassar’s sentence and said that it was an “honor and privilege” to impose the sentence.
Jennifer Kuiper-Weise, a former prosecutor-turned-defense attorney in Michigan who has handled over 500 criminal sexual conduct cases, said that while it is not unusual for a judge to interject some personal opinion during sentencing, appellate issues can be created when a judge goes too far.
“While sentencing Mr. Nassar, the court made a number of comments that individually may not warrant appellate review, but in their totality – they very well could,” Kuiper-Weise told The Daily Caller News Foundation in a statement.
The Michigan Code of Judicial Conduct says that “a judge should be patient, dignified, and courteous,” and “must not seek popularity or publicity by exceptional severity or undue leniency.”
But while Aquilina’s comments and behavior in court might be enough to warrant a re-sentencing if the sentence was overly severe, it is very unlikely Nassar’s sentence would be reduced because he agreed to a minimum of 25 to 40 years in his plea bargain.
“It is doubtful that any relief or change in the case would occur … In essence, the defendant knew he was getting a 40-year minimum sentence going into the hearing, and the judge imposed the agreed-upon sentence,” Kuiper-Weise said.
Nassar also agreed in his plea bargain to hear victim impact statements during the sentencing hearing. Over 150 victims delivered statements during the seven-day hearing, including Olympic medalists Aly Raisman and Jordyn Wieber.
“No one would argue that Nassar received too much time. His sentence fits the crime and the number of victims he affected,” Stacy Schneider, a trial attorney and legal commentator, told TheDCNF in an email. “But the overly dramatic tone and personal nature of her remarks are still bizarre, despite the depravity of the crime.”
Carissa Hessick, a criminal law professor at the University of North Carolina- Chapel Hill, told TheDCNF that sentences are usually only reversed if they are based on false information or a defendant’s race, sex or religion. At most, Aquilina could be subjected to professional discipline for violating her duty of impartiality, Hessick wrote in a blog post.
Some legal scholars don’t see a legal issue with Aquilina’s comments. Eve Brensike Primus, a criminal law professor at the University of Michigan, told TheDCNF that Aquilina’s comments didn’t strike her as raising impartiality problems.
“Judge Aquilina’s comments about Nassar seem well within the normal human reaction to the heinous crimes of which he was convicted,” Clark Neily, vice president for criminal justice at the Cato Institute, told TheDCNF in an email. Neily said that while some of the judge’s comments were “intemperate and unseemly,” they do not “display such a deep-seated antagonism as to make fair judgment impossible.”
Michigan courts give judges a lot of flexibility in the language they use to explain a sentence. One Michigan Supreme Court case said that “comments critical of or hostile to counsel or the parties are ordinarily not supportive of finding bias or partiality,” and another said “the language of punishment need not be tepid.”
Although it is highly unlikely that Nassar’s sentence would be shortened, it is possible that Aquilina’s behavior could be mentioned in future proceedings.
“It would also not be surprising for an appellate attorney to probe a possible constitutional issue regarding the court allowing a personal attack of defense counsel and not allowing counsel to object, telling counsel to ‘sit down,'” Kuiper-Weise said.
Nassar has 21 days from time of sentencing to appeal. He also said he would appeal a separate 60-year federal sentence for possession of child pornography.
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