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Judging Larry Nassar

Why Rosemarie Aquilina’s handling of a serial sex abuser’s case was so problematic

Scott Olson/Getty Images

Ingham County Circuit Judge Rosemarie Aquilina isn’t just a hero to countless Americans for the way she stood up for victims of sexual violence. She’s also a celebrity. The Michigan jurist, who this week sentenced serial sexual abuser Larry Nassar to 40 to 175 years in prison, was profiled Tuesday in The New York Times as an “advocate” for the hundreds of Nassar’s victims. The Washington Post went further, calling her a “media master” for the way she manipulated coverage during the course of the case. Then there was the Glamour piece chronicling the judge’s “most powerful quotes” during the hearing and the Guardian piece on her style and fashion. Surely a syndicated television career is in the cards should Judge Aquilina decide she’s had enough of plea bargains and evidentiary motions in Ingham County.

The judge and her moment are well met. She presided over an important sexual abuse case involving well-known and eloquent victims at a time when the nation is just starting to come to grips with the extent of our society’s sexual victimization of women and girls. The story of Nassar’s crimes is an appalling one and worthy of the extensive coverage it received. It was one of those rare criminal cases without any nuance or ambiguity. On the one hand there were these young victims, and the way they were betrayed by the doctor and his enablers; on the other hand there was this creep who got away with it for years. No more. A bad guy got what was coming to him.

And if Judge Aquilina had played it straight, had she acted in a more judicious manner, Nassar’s sentencing would effectively end his part of this story. Every day in this country an earnest state or local judge sentences a terrible person to a life sentence or its equivalent, and the rest of us barely take notice. Every week in this country earnest state and local judges at least try to act impartially during sentencing, even when the people they are sentencing are proven to have engaged in monstrous evil. Indeed, one of the most important judicial functions, one of the ways in which the rule of law is honored, is when judges put aside their personal feelings toward a case, or a defendant, and enforce the law in a manner that reassures us there is nothing personal about that enforcement.

That did not happen here. To her discredit, Judge Aquilina abdicated her role as an impartial arbiter and became instead a tribune for prosecutors and the victims. She did this by showing relentless hostility and anger toward Nassar. She did this by throwing away or ripping up a letter the defendant had written to the court. She did this by playing to the media in a way that left little doubt about her sympathy for the victims and her disdain for the defendant. She did this by treating Nassar as if he were something far less than an American entitled to all of the constitutional protections of a fair tribunal. She did this by icily saying, “I just signed your death warrant” when she sentenced him.

In Michigan, as in every other state, there is a Code of Judicial Conduct that is supposed to guide the work of state judges. To cite just one provision, Canon 2, Section B, says this:

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.

At what point did this judge comply with this obligation? How often during the course of the hearing did she treat Nassar “with courtesy and respect”? How often, as she encouraged the victims to tell their stories, did she “promote public confidence in the integrity and impartiality of the judiciary”? I followed the case. I followed the hearing. The impression I got was that the judge was using the forum to strive for some sort of cathartic awakening on behalf of Nassar’s victims and victims of sexual assault more broadly. There is nothing wrong with that. It’s a noble cause. But there is no place for that in an American courtroom, no matter how much we acknowledge that victims should have a significant role in sentencing. No judge in America should play the role of advocate for victims or prosecutors. No judge in America can play that role if we are to respect our rule of law.

Stephen Gillers, the great judicial ethics expert, rightly tells us that judges during sentencing are free to speak their minds in a way they cannot during the guilt-innocence phase of a trial. That after the presumption of innocence for a defendant is gone the judge, as the conscience of the community, may pass some sort of rhetorical judgment. All of that is true. I have sat in courtrooms during sentencing and watched judges slam defendants. Remember Judge William Young and the shoe bomber? But as a matter of judicial ethics and constitutional duty there is a limit to that expression. There is a line beyond which no judge may rightly go. And Judge Aquilina crossed it. For example, it is not appropriate, it is not okay, for any judge to say this to a defendant in an American court:

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.

If Judge Aquilina wants to lead a victims’ rights movement focusing on sexual abuse of women she has every right to do so. If she wants to argue for more stringent accountability for men, for doctors, for sexual predators, then I wish her well. But that cannot happen until the day after she resigns from the bench in Michigan. You can be a crusader for sexual assault victims and a tribune for those who are struggling to find their voice. Or you can be a judge who has sworn to uphold the Constitution, including the part that guarantees that even the most heinous defendants among us are entitled to a fair trial before an impartial judge. You can’t have it both ways.

To criticize the judge’s work here, to call her out for so relentlessly expressing her bias, is not to give aid and comfort to Nassar or to diminish the courage of the women who stepped forward and shared their stories. It is possible to see Nassar as a despicable man who did despicable things, a man who deserves the sentence he has received, and see his judge as someone who abdicated her responsibility to him. These are not inconsistent beliefs. My point is that no defendant in America, no matter his crime, deserves to have his sentencing judge encourage or suggest that he ought to be killed or raped in prison. Such vitriol turns the proceeding from the reasoned expression of community values as expressed in law to little more than a lynch mob.

The very first trial I covered as a legal analyst, in 1997, was the Oklahoma City bombing trial of Timothy McVeigh. He was guilty of murdering 168 men, women, and children in cold blood at the Alfred P. Murrah federal building on April 19, 1995. McVeigh was remorseless, defiant, and worthy of not one ounce of pity. In the pantheon of monsters he takes no back seat to Nassar. And yet the penalty phase of his federal terrorism case, the equivalent of the sentencing hearing in Michigan this past week, unfolded in a way that honored both the victims and the defendant’s constitutional rights. McVeigh’s judge, U.S. District Judge Richard Matsch, did what Judge Aquilina did not. He expressed the community’s horror, and bluntly sentenced the defendant, without losing the patina of neutrality, of impartiality, that a judge always must hold dear.

That did not happen in Michigan. It did not happen to Larry Nassar. It did not happen in the courtroom of a judge who found a cause and lost her way, all in the span of a few memorable weeks.