White-Collar Crime

When Investigators Do Too Little And Judges Do Too Much: Some Thoughts On Larry Nassar

Even a monster like Larry Nassar deserved better than this.

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Larry Nassar (Photo by Scott Olson/Getty Images)

Some recent events in the horrific case of Larry Nassar, the USA Gymnastics doctor who was recently sentenced almost 200 years in prison for molesting more than 250 young women, has made me think about how two different actors in the justice system — the investigators and the judges — should best play their respective roles.  When do investigators do too little, and when do judges do too much?

The New York Times reported last weekend about what seem like the FBI’s extraordinary delays in investigating the Nassar case.  The entire piece is worth reading, as difficult as it is.  (One of the victims was 10 when she was first molested, and she still remembers what she was wearing the day it happened.)

The gravamen is that the FBI knew about the allegations against Nassar for more than a year before they took any real action against him.  Given his continuing access to people exactly like the victims the government already knew about, it stood to reason that, as long as he kept his job at USA Gymnastics, he was probably going to find more victims.

It also stands to reason that the FBI should have moved very quickly and made the case a high priority, presumably coordinating with state authorities to figure out who had jurisdiction to make the best case the fastest.  They should have acted as if every day that he was out on the street was another day he could harm a young woman — which, as the Times reported, essentially appears to be what happened.  As the paper put it, it has “identified at least 40 girls and women who say that Nassar molested them between July 2015, when he first fell under FBI scrutiny, and September 2016, when he was exposed by an Indianapolis Star investigation.”

Try to wrap your head around that for a second — 40 girls who Nassar might never have touched if the government had acted just a little faster.

The problem is that the FBI seems to have taken some time to figure out where proper venue would lie and then just to do what the FBI does, which is to investigate the hell out of a case.  There was good in that, of course, because it’s important to make sure that you have the right person and have enough evidence to convict that person.

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It’s also important to recognize that, as the FBI’s Special Agent in Charge of the Indianapolis office put it, a suspect has rights, too.  He outlined the difficulty pretty clearly:

Asked why federal law enforcement officials did not notify people — other gymnasts, parents, coaches — that a potential child molester was in their midst, Mr. Abbott said, “That’s where things can get tricky.”

“There is a duty to warn those who might be harmed in the future,” he said. “But everyone is still trying to ascertain whether a crime has been committed. And everybody has rights here” — a reference to both the alleged victims and the person being accused.

The Nassar case might have been further complicated, he said, by the fact that “there was a vigorous debate going on about whether this was a legitimate medical procedure.” 

As much as I respect the FBI’s decision to get it right, I suspect that the FBI may have prioritized getting an ironclad case over moving quickly with the strong case they already had — or helping state law enforcement authorities move forward with a case of their own.  They may have let the perfect be the enemy of the good.  That may be important in cases where you’re not sure you can prove up a case given the evidence that already exists, but here, it strikes me as too conservative an approach given what they had and the horrific risks of inaction.

The other aspect of this case that I have found myself thinking about a lot is the almost pornographic turn that sentencing took when the judge finally had her say.  A lot of people applauded her and said that she did a great job voicing her concern for the victims.  But I think what she did was profoundly unjudgelike and corrodes what the image of a judge should be.

Judges are not supposed to be avenging angels.  Sure, they can get emotional when they are sentencing — they’re human beings just like anyone — but they’re supposed to put aside the emotion when actually exercising the judicial power.  That is the precise opposite of what Judge Rosemarie Aquilina did here.

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As has been widely reported, after sentencing Dr. Nassar to 175 years in prison, she said, “I just signed your death warrant.”  I’ve never heard a judge say anything like that.  It’s ugly and vindictive; judges shouldn’t talk that way.

But wait, there’s more!  In one of the victim-impact hearings before she imposed sentence, Judge Aquilina also let loose this gem:

“Our Constitution does not allow for cruel and unusual punishment,” she said. “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.”

Yes, ladies and gentleman, a judge openly wished during the sentencing phase of a case that she could order the defendant to be raped.

Is anyone surprised to learn that she was elected, not appointed?

While imposing sentence, Judge Aquilina also used the word “I” more than I have probably heard any judge use it in my entire legal career.  The self-aggrandizement that comes through is just appalling.  She even, for Pete’s sake, talked about where her family came from.  Who cares where your family came from?

And on top of that, she even — and I am not making this up — talked about all the interview requests she’s received.  She tried to be coy about it and say that she didn’t want to talk about the case yet, but she made clear to qualify that and say she’s only refused to talk about it until the appeal process is over — because then, she can say whatever she wants and not worry that it will affect the case.

Here’s a taste:

Let me just state to the media. Again, I am just doing my job. I know you all would like to talk to me. My secretary informed me that I have a growing stack of requests from print media, from television, from magazines, from around the world, literally.

This story is not about me. It never was about me. I hope I’ve opened some doors, because you see I am a little stupid because I thought everybody did what I did and if they didn’t, maybe they ought to, but I do this and I am happy to do it. If you don’t believe me, the keeper of my words is right by my side and lawyers who are hearing this and shaking their heads that yes, I have waited too long. Sometimes people are upset, I don’t care, I get paid the same.

So I ask the media who want to talk with me, I’m not going to be making any statements, I know that my office and I even don’t know, it is been a long couple of weeks that after this is over, it is just not my story. After the appellate period runs with victims by my side to tell their stories, I may answer some questions than what I said on the record. I don’t know what more I can possibly say.

I am not going to talk with any media person until after the appeal period, and even then if you talk to me about this case, I will have a survivor with me because it is their story.

I look forward to seeing her on the front page of some newspaper with a beautifully lit photo talking modestly about her role in the case.

Why does this matter?  It matters because when we praise or condone behavior like this by judges, it corrodes the legal system.  It makes judges sound more like prosecutors than like judges.  It undermines the belief that no matter what somewhat is alleged to have done, the person wearing the black robe will treat them humanely and with respect, even if they don’t deserve it, and won’t give a moment’s thought to what the media think or how much they want an interview.

Because that’s what our justice system demands.  Judges like Judge Aquilina, when they make it about themselves, their own vengeance, and their own playing to the media, chip away at that foundational principle of American justice.  Even a monster like Larry Nassar deserved better than this.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is [email protected].

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