By all accounts, Judge Steve Leben is a highly respected state appellate judge in Kansas who also appears from his writings to be a kind and gentle person. The good judge wrote a January 24, 2018, post entitled Michigan judge provides clinic on showing compassion to crime victims at sentencing for a blog ironically labelled Procedural Fairness for Judges and Courts.
In his post, Leben asks judges to “[s]et the neutrality issue aside . . . .”[i] He wants judges to concentrate upon and emulate Judge Aquilina’s “demonstration clinic on how to show compassion to crime victims” during the sentencing of Dr. Lawrence G. Nassar.[ii]
Before I explain why Judge Leben is wrong and manifestly so, let’s get some basics out of the way:
- By the time the Nassar sentencing phase began, he had been federally sentenced to 60 years in prison for child pornography.
- Nassar entered into a plea agreement for seven offenses regarding seven separate victims on the state sex-assault case. That plea agreement allowed for 125 “victims” to make sentencing statements. (See endnote v for why I used quotation marks.) According to Judge Aquilina when she pronounced the sentence, 168 victims made statements.[iii]
- Michigan has a statute that allows crime victims to give oral statements at the time of sentencing.[iv] As Judge Aquilina noted when she pronounced her sentence, the Michigan statute has been broadly construed.[v]
- The sentencing phase took seven days, almost all of it consumed by the victims taking center stage. The proceedings were televised.
- According to the transcript, Judge Aquilina said the following when she imposed the sentence, “Sir, I’m giving you 175 years, which is 2,100 months. I’ve just signed your death warrant.” The transcript then notes that the “crowd begins to applaud.”
Chris Seaton and our host, SHG, have separately demonstrated that Judge Aquilina’s sentencing behavior was appalling. See here and here. I have no wish and you have no need for me to add to their compelling posts. But I do want to address Judge Leben’s dangerous promotion of the way Judge Aquilina dealt with Nassar’s victims. I particularly want to address his homage to Aquilina’s notion of judicial compassion while suggesting it is appropriate to “[s]et the neutrality issue aside.”[vi] The two cannot be separated, and it is foolish and dangerous to suggest otherwise.
Aquilina became a cheer leader for the victims. She “delivered her own heartfelt statement[s] in a manner and tone befitting a therapist.” Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge, New York Times (January 23, 2018). “The military has not yet come up with fiber as strong as you,” she told one of the speakers. The judge remarked, “Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.’ Thank you so much for being here, and for your strength.”
Her faux therapy sessions continued for days. It was the first day, however, that set the tone. Near the end of the first day, Judge Aquilina begrudgingly acknowledged but lamented that she could not, in effect, sentence Nassar to being raped in prison.[vii]
Unlike Judge Leben, I am unwilling to “set the neutrality issue aside” when dealing with victim-impact statements. Damn it, the two cannot be separated. The two are inextricably intertwined. If anything, listening to victim-impact statements is when the judge should be the most sober, reserved and, yes, neutral. Judges are not, and should not pretend to be, therapists.
Judge Aquilina’s behavior while receiving the victim-impact statements was a lesson in bias and prejudice. She may be the poster judge for the #MeToo movement and the promotion of the “feelz” school of judging, but she sure as hell is not a judge to emulate when dealing with victim-impact statements (or otherwise).
I am not alone in my condemnation of Aquilina’s handling of the victim-impact statements. See Andrew Grainger, Stop Celebrating Larry Nassar’s Judge. Her Comments Were Wildly Inappropriate, WBUR (January 25, 2018). Grainger, a retired appellate judge in Massachusetts (and a graduate of the University of Michigan Law School), thoughtfully wrote:
The purpose of victim statements . . . is to provide collective acknowledgment of the harm done to an individual and to provide an aspect of healing. Too many victims remain victimized by their own shame, however illogical. We hope that the opportunity to speak provides release. The objections to victim statements voiced by thoughtful members of the defense bar reflect the concern that judges, human like the rest of us, will be unduly influenced by the emotional impact of an eloquent and heartfelt presentation. By moving center stage and voicing her personal opinion, Judge Aquilina demonstrated that this remains a concern. (Emphasis added.)
A Michigan judge was even more pointed in his criticism. One of Judge Aquilina’s colleagues “who has known her for years criticized her as showing favoritism.” Gina Kaufman and Joe Guillen, Judge Rosemarie Aquilina: Who is the woman who signed Nassar’s ‘death warrant’?, USA Today and Detroit Free Press (January 25, 2018):
Ingham County Circuit Judge William Collette said Nassar’s sentencing was “the most violative” sentencing proceeding he can recall. Collette questioned why Aquilina would allow women who are not part of the criminal case to address Nassar in court. . . .
“There has to be some semblance of fairness, no matter how much you hate the person,” Collette said.
“Doing justice is one thing,” he said. “It is not a judge’s function to get people healed.”[viii]
But what’s wrong with a little passion and prejudice whipped up by a judge when mothering a gaggle of victims about the predations of a nonhuman like Nassar? Consider the following as the answer to my rhetorical question.
While taking the victim-impact statements, one of the victims became angry with defense counsel. This exchange between counsel and the judge took place:
At one point, a lawyer sitting next to Mr. Nassar objected to Judge Aquilina when [a victim] called out the defense team’s support for Mr. Nassar, including the exchange of smiles, and at one point a lawyer placing an encouraging hand on his shoulder.
“I think you have thick enough skin to let it go where it should,” the judge told Dr. Nassar’s lawyer, allowing [the victim] to continue.
Christine Hauser and Maya Salam, Women Confront Larry Nassar in Court: ‘I Was So Brainwashed Then’, New York Times (January 22, 2018).
Another news account was more specific and even more disturbing:
“My sexual assault was wielded like a weapon against me,” Denhollander [one of the first victims to come forward] said.
She was attacked, she added, includ[ing] during the preliminary hearing when Shannon Smith, one of Nassar’s attorneys, asked her if she was just coming forward now for the money.
. . .
Smith got up immediately to object, only to get shouted down by the crowd and dismissed by Judge Rosemary Aquilina. “This is her time to speak,” Aquilina told Smith.
. . .
[Later, the judge told the victim] “You started the tidal wave. You made all of this happen. You made all of these voices matter. Your sister survivors and I thank you. You are the bravest person I have ever had in my courtroom.”
Ed Morrissey, Nassar Victim Blasts Defense Attorney: “Only One Of Us Was Making Money Off Her Court Appearance That Day”; Nassar Gets 175 Years, Hot Air (January 24, 2018).
It is therefore not surprising that shortly before allocution the male and female defense lawyers received an e-mail from an anonymous person. This is how counsel described it during allocution:
As we sat in the court this morning, we [defense counsel] received an email from somebody who is anonymous, that wished death upon our kids; for standing next to the man and upholding the constitution, a document and an oath that we took when we all went to law school.
In short, Judge Aquilina’s handling of the victims is not something to be lauded and copied; it should be flatly condemned. I hope Judge Leben reconsiders. I respectfully urge him to retract his post.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] Because the sentencing proceedings had not yet concluded at the time of his post, he was agnostic on the issue of Aquilina’s neutrality. “Legitimate questions can be raised from media accounts on the neutrality element. After all, she still must sentence Nassar, and she must be careful both to be—and to appear—fair in doing so. I am not suggesting she has failed on that point; I simply haven’t seen enough to know.”
[v] See, e.g., People v. Waclawski, 780 N.W. 2d 321, 358 (Mich. Ct. App. 2009) (“MCL 780.764 and 780.765 grant individuals who suffer direct or threatened harm as a result of a convicted individual’s crime the right to submit an impact statement both at the sentencing hearing and for inclusion in the PSIR; however, the right is not limited exclusively to the defendant’s direct victims.”) The Wacklawski case and others allow representatives of victims named in the charging documents to give impact statements when a conviction has been obtained against a defendant that regards those victims. After a cursory search, I was unable to find any Michigan case that allowed alleged victims to testify where there was no conviction obtained regarding those victims. However, Nassar probably waived this argument when he entered into his plea agreement that allowed for 125 alleged victims to give statements.
[vi] While I do not like being forced to listen to victim-impact statements, federal law requires that I do so. 18 U.S.C § 3771. I acknowledge that victim-impact statements can once in a great while be good for both the victim and the defendant, as I have previously described in a post entitled Howl. However, victim-impact statements generally make no difference to me.
[vii] “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 some or many people to do to him what he did to others.”
[viii] Victims rights advocate Paul Cassell, a former federal judge, has defended the actions of Aquilina regarding victim-impact statements. See here. Among other things, I find his post unpersuasive because (1) the cases he cites bear no resemblance to the Nassar case, (2) no one questions that the law allowed such statements, and (3) with respect, Cassell’s devotion to the plight of victims appears to have clouded his judgment regarding the extreme nature of Judge Aquilina’s behavior during the time she received the victim-impact statements and before she pronounced her sentence.