Seaton: Judge Rosemarie’s Baby Advocacy

Judges are not “fierce advocates,” despite the wishes of New York Times’ copy editors. Judges are, ideally, impartial, using their authority to apply the law. Ingham County Court Judge Rosemarie Aquilina conveniently abandoned that role by prioritizing the feelings of the “sister survivors.” whom former U.S. Gymnastics doctor Larry Nassar sexually assaulted, over Michigan’s charge to jurists regarding the avoidance of judicial impropriety.

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.

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.

Her open contempt for Nassar was on full display while reading excerpts from a six page, single spaced letter Nassar penned to Judge Aquilina over how the excessive victim impact statements had taken a toll on Nassar’s mental health.

At the end of Judge Aquilina’s recitation, she tore up Nassar’s letter and threw it away in a moment destined for internet infamy.

At the close of the hearing, Judge Aquilina spoke directly to Dr. Nassar before delivering her 40-175 year sentence running consecutively with the 60 year plea deal Nassar struck in Federal Court for child pornography charges. A few quotes from Judge Aquilina demonstrate the absolute hatred imbued through seven days and over 160 statements from young women.

“Inaction is an action. Silence is indifference. Justice requires a voice. And that’s what happened in this court. [168] buckets of water were placed on your so-called ‘match’ that got out of control,”

“I believe in individual sentencing, and I believe in the Constitution…I also believe these survivors.” 

“These quotes, these “air quotes…” I will never be able to look at them again without thinking of you and your despicable acts.” 

“It was not treatment what you did. It was not medical. There was no medical evidence that was ever brought.” 

“I wouldn’t send my dogs to you sir.” 

“As much as it was my honor and privilege to hear the sister survivors, it is my honor and privilege to sentence you.” 

“Anywhere you walk, destruction will occur to those most vulnerable.” 

“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.”

And finally, on pronouncement of sentence, the most telling quote of them all. 

“I just signed your death warrant.” (Emphasis mine.)

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.

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.

33 thoughts on “Seaton: Judge Rosemarie’s Baby Advocacy

  1. Skink

    I don’t do criminal work, but my practice takes me there occasionally. I don’t claim to know much as a lawyer how criminal cases should proceed. I also didn’t follow this sentencing until yesterday.

    But I was saddened yesterday. The integrity of the judicial system, civil or criminal, must be the the impenetrable barrier for all lawyers and judges. It only works if feelings, politics and causes are left outside the courthouse. There was an utter failure of integrity here, and it was set aside from the start. Allowing all those statements over all those days was a tell of things to come. It saddens me to see that happen, and happen out loud.

    Sadder still is nearly no one will know it happened. Thoughtful lawyers know, and I’d bet most reacted much as I. The ranks of thoughtful lawyers dwindles, so what chance is there that “common folk,” those most impacted by the system, will understand? They don’t. They react to the immediate feeling. “Good for her,” they say. What they don’t see is the real danger unleashed when integrity fails and mob rule ascends.

    Ours is a contemplative business, driven by fact and rule. Agendas, emotion and causes are fine for the mob, but they should have no use by those charged with deciding penalties.

    1. SHG

      The Gertrude response was to point out that the judge opened the door to an appellate challenge to sentence by her intemperance. Whether or not that’s true (and it’s an issue, but an unlikely winner) isn’t the point. Judicial impropriety is wrong because it’s impropriety.

    2. CLS

      The spark prompting this post were two non-lawyer friends of mine cheering Judge Aquilina’s conduct as “brave” and “heroic.” They weren’t lawyers, and couldn’t be expected to know what really happened.

      It’s the job of those of us who know, who are educated in the ways of the law, to call bullshit on situations like this and educate those dancing in the streets over incidents like this. It was my honor and pleasure to do so here.

      1. Jacob Miller

        Thanks for your post. Not all of us “non-lawyers” were cheering the judges conduct. While Nassar is certainly despicable and deserving of life in prison, my biggest take away from the proceeding was that this judge needs to be reprimanded and watched closely. We need impartiality in our judges. People who can dispassionately analyze facts and data. This lady was scary.

      2. Eliot J CLingman

        I’m not a lawyer, but was nevertheless repelled by her partiality, despicable grandstanding and bombast. Not having a law degree does not imply or excuse stupidity or irrationality.

        1. CLS

          Lack of a law degree isn’t the issue, nor have I ever suggested that it implies or excuses stupidity or irrationality. This is about a dangerous territory where feelings are prioritized over truth.

          Jacob, Eliot, I applaud both of you for seeing past the mob of the unduly passionate who cheer the Judge Aquilinas of the world, pandering to the “OFF WITH THEIR HEAD” mentality. Sadly, both of you are in a minority.

        2. Patrick Maupin

          This. Data is not the plural of anecdote, but it is difficult to imagine thoughtful adults not cringing at Judge Aquilina’s performance art.

          The only real question is whether we have enough thoughtful adults left.

  2. PseudonymousKid

    Dear CLS,

    There’s next to no chance that the 8th Amendment will be mentioned in any coverage in mainstream media of Nassar, Op-Ed or otherwise. It would be nice to be surprised, though. Thanks for dressing her down.

    The judge may have been damned if she did or didn’t, but those quotes are shameful.

    Best,
    PK

    1. CLS

      Dear Kid:

      This was never about dressing down a judge, or even if one thinks it’s deserved. This is an attempt to shake those who cheer such conduct from someone wearing a black robe with a hard dose of reality.

      And it would be nice if the media stuck to facts, but I doubt many journalists even have a grasp of the 8th Amendment.

      Best,
      –CLS

  3. Jay logsdon

    So long as punishment is a goal of sentencing judges will add insult to injury. The judge does have the duty to justify the sentence they choose. Additionally a good judge hopes to give a sentence that provides closure. So you get stuff like this. It coarsens our law and our society, makes it easier to inflict horror. As a human being i find it disheartening. But until the Supremes drop eye for an eye, it’ll go on.

    1. SHG

      What part of wishing prison rape on a defendant satisfies the judicial duty to justify the sentence? Condemning a defendant’s conduct isn’t at issue; it’s where she goes from there that presents the impropriety. You appear to have completely missed that blind leap.

  4. RKW

    “At the end of Judge Aquilina’s recitation, she tore up Nassar’s letter and threw it away in a moment destined for internet infamy.”

    In our state documents presented to the judge as part of the sentencing procedure (such as Nassar’s letter) are court records. Destroying a court record is a felony. Someone in Ingham County might want to publically ask the prosecutor when he/she plans to present this criminal conduct witnessed by many to the grand jury.

    1. LocoYokel

      Good point, would judicial immunity cover the destruction of court documents like this? Granted it can be re-printed and submitted back into the record but that will not be the original received and signed by the clerk. Or are copies made for use in the courtroom and she only destroyed a copy and not the original?

    2. CLS

      Something tells me few prosecutors would be keen to take this to a grand jury in the current #MeToo climate. But I’m told that’s my grumpy pessimism showing.

  5. B. McLeod

    The judge beclowned herself disgracefully. As to appeal based on her flagrant display of bias and distemper, she is likely betting on defendant taking no appeal, as he is likely to be imprisoned for life no matter what. Her courtroom tantrums were nevertheless horrific judicial conduct breaches which her state level judicial ethics authorities certainly ought not to ignore. The ‘death warrant’ comment was particularly awful, as it appears likely tied to widespread public Internet commentary speculating that Nassar will soon be killed in prison. Above all, Judge Aquilina absolutely proved the correctness of the defendant’s complaint that the court was “running a media circus.” It was beyond shameful.

    1. CLS

      As our Esteemed Host said in his post today, this incident makes a strong argument for keeping cameras out of the courtroom.

      1. B. McLeod

        It is lamentable that the mainstream media has painted this as a fine example of judicial performance, when it is, in reality, judicial misconduct. In this mournful era of “advocacy journalism,” facts have gone to Hell, and the public is given only the interpretation that furthers the fad du jour.

  6. MonitorsMost

    In addition to the circus, her ruling was self-aggrandizing in an inappropriate manner. She went through her family history and her personality as a person (interspersed with lame denials of “it’s not about me”). She said she would be open for interviews after the appeal deadline had run, but there always had to be a survivor there with her in the interview. I think a CJC complaint should be sent off with the same postman carrying the notice of appeal.

  7. MHJ

    Why do I suspect Judge Aquilina has political aspirations?

    Do judges in Michigan run for election or retention? Might she have her eye on being elected, say, District Attorney, or something more?

    1. CLS

      I’m going to attempt a reply to both Monitors and MHJ here.

      Judge Aquilina’s remarks regarding being available for interview only with a survivor present struck me as odd, but I didn’t address them here for the purpose of staying on point. They did strike me as self-aggrandizing, even the mention this ruling wasn’t about her.

      With regards to political aspirations, it’s difficult to read minds, no matter how easy British mentalist Derren Brown makes it look. If Judge Aquilina has higher political aspirations, the scalp of Dr. Nassar is certainly a strong talking point for some voters.

      1. the other rob

        It may be worth pointing out that the word “mentalist” is also used in British slang to denote a crazy person. Example: “That Judge Aquilina’s a right mentalist!”

  8. Doug Maenpaa

    The defendant was convicted of a despicable crime, why do murders ,terrorists and serial killers get a much lighter sentence ?

    Defendants conduct was very bad, but no one died !

    1. SHG

      Different jurisdictions provide for different sentences for crimes. Further, multiple offenses can result in consecutive sentences. Generic attempts at comparison like this are unhelpful.

  9. Paul

    Thanks for saying this. I watched the snippets of the proceedings that were on television and felt that the Judge’s behavior was inappropriate as she certainly did not treat the defendant “with courtesy and respect” as the Judicial Cannons require. I also thought the victim statements were excessive. The sentence is the punishment. The law should not impose additional humiliation. With everyone patting themselves on the back, I thought I might be alone in feeling this way.

    1. CLS

      It’s in these moments when everyone around you is feeling good the big baddie of the day got life plus cancer with a dose of humiliation in the process that you have to speak up.

      I challenge you with this: the next time you see or hear someone praise Judge Aquilina for her work in this sentencing hearing, ask that person “Would you feel the same way if that were one of your family members getting humiliated?”

      Enjoy as they struggle with a response.

      1. B. McLeod

        Of course, it is hard to judge if it really is “everyone around you,” or if that is simply the appearance created by the media parade.

      2. Sacho

        Are you sure they would struggle with their response? They could deny you the hypothetical with the age-old rationalization of “that would never happen to my family members because they are not monsters”, or worse…they could be progressives and proudly proclaim they would disown their family and friends if such a thing happened.

        Have you not heard the stories of progressives shutting out family members from their lives for voting Trump? Surely you’ve seen how they tar and feather former allies when they’re found guilty of wrongthink, much less actual horrible crimes like Nassar?

        I think you’re underestimating the cultural clash at play here, of family values vs a ‘global woke community’ and collectivism(for the good of the community) vs individuality(me and my friends are more important to me).

  10. CRP

    I practiced criminal law for 2 years, and later was chief clerk for a court for two years. This sort of behavior on the part of the judge is not at all remarkable. They’re elected to judge, and that’s just what they do. I saw a judge dressing down a defendant who was getting more and more agitated as he listened to her, to the point where they had to call for additional court officers (security) to stand by to restrain him. And then the judge blamed me and the chief court officer for not having additional court officers standing by ahead of time. How were we to know what was going to set the judge off?

    As I said, not at all remarkable.

    1. SHG

      I’ve practiced a wee bit longer. While the issues isn’t whether it’s remarkable, but whether it’s wrong, bear in mind that your experience does not necessarily reflect the norm. That it’s unremarkable to you is a very sad reflection of your limited experience, not of judges otherwise.

      1. Billy Bob

        There you go again! Can’t you just leave well enough [comment] along? Nooo, you had to say something. “I’ve practiced a wee bit longer.” Puhleeeze%$#&.

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