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Judge tells lawyers "potential witnesses" not to talk in Nassar case

Mar 29, 2017

Here’s the big question: Did a judge just block 80-plus women and girls from talking about their sexual assault allegations against former Olympic gymnastics and MSU sports doctor Larry Nassar?

Or does today’s order to “limit public disclosure” just mean that attorneys with civil suits against Nassar can’t call him a pedophile on Facebook?

Depends who you ask. And even some of the lawyers mentioned in this brief say they don’t totally understand how to interpret the order.

Nassar’s defense: We can’t get a fair trial without judge’s help

On Monday, Dr. Nassar’s criminal defense team filed an emergency motion, asking Ingham County Circuit Judge Rosemarie Aquilina to step in and help control the fire hose of media coverage about this case.

Nassar's been all over the national headlines, as a former U.S. Olympic gymnastics doctor and MSU team doctor, now facing sexual assault allegations from more than 80 women and girls. Many claim he abused them, repeatedly, under the guise of treatment.

Now he's facing charges in four separate criminal cases and dozens of civil lawsuits. 

In this particular criminal case before Judge Aquilina, he’s charged with sexually assaulting a child under the age of 13. 

Nassar’s defense attorneys argue, in a brief filed this week, that they won’t be able to get a fair hearing or an impartial jury, if the court doesn’t “limit witnesses and their counsel from disclosing information to the public and media…”

They point to a California attorney’s recent release of an internal Title IX investigation from MSU last week, in which the university's investigator concluded Nassar violated MSU's sexual assault policy. But that Title IX report would never be used in this criminal case, the defense argues, because the standard of evidence in a school investigation is far lower.

“Attempting to disseminate information to potential jurors that would never be used in trial is inappropriate,” the defense says.

Then there are the press conferences, interviews, and Facebook posts made by attorneys representing the women who are suing Nassar.

Those have been “loaded with inflammatory remarks designed to garner outrage by the public,” Nassar’s attorneys argue. They point repeatedly to one attorney, David Mittleman, and his comments about Nassar online.

In one of Mittleman’s Facebook posts, he says “Pedophile predators can’t victimize as many people as he has without the complicit adults in the room,” according to the brief.  

This is all a “clear effort to try this case in the land of Facebook and not the courtrooms,” the defense says, while claiming that they also intend to call two of the lawyers suing Nassar as witnesses for the defense.

The order: “All current and potential witnesses” are restricted

In a hearing Wednesday morning, Judge Aquilina signed an order responding to the defense’s protests.

“There shall be no attempts, by any lawyers representing a witness or a witness to facilitate the release of information or statement to any third party that pertains to the facts of the case which are not already contained in the public file, related to this pending matter,” the order states (emphasis added.)

Some parts of the order appear to apply just to the attorneys or witnesses in this one, specific criminal case involving the alleged sexual assault of a child:

“No statements by the witnesses or lawyers representing the witness shall discuss the guilt of innocence of Nassar, publicly and this pertains to this docket only.”

But then, other sections appear to apply more broadly:

“This order shall be binding upon all parties, all current and potential witnesses and counsel for all current and potential witnesses, related to this case” (Again, emphasis added.)

The judicial assistant in Aquilina’s office said the judge couldn’t offer clarity or additional comment on the intent or extent of the order. The attorney general’s office declined to comment. And Nassar’s defense attorney said they could not comment because of a previous gag order.

Attorneys hashing out whether this means other women can’t talk about their cases  

Attorneys for the women and girls suing Nassar huddled Wednesday to figure out what the order means for them and their clients.

“We are trying to sort out the legal ambiguity,” one attorney says in an email. “Ultimately I think it needs clarification.”

Mick Grewal represents several of the women suing Nassar, including Larissa Boyce, who says she told MSU’s volleyball coach about the alleged assaults years ago.

Grewal says Boyce texted him Tuesday night, concerned about the possibility of a gag order.

“She wants to be able to talk out in the public, to help other survivors come forward and help in their healing process,” Grewal says. “She didn’t do anything wrong.”

So what will Grewal tell her to do?

“Honestly, I would be remiss if I didn’t tell her that we have to be careful, because the order is so broad and vague,” he sighs. “I think this order needs to be cleaned up. But Larissa never went out and basically said that Dr. Nassar – she never commented on the criminal case. She commented on what happened to her. I think she has a right to do that.”

Still, Grewal says he ultimately reads the order as only pertaining to the criminal case currently before Judge Aquilina – not the civil lawsuits he represents.

“She [the judge] would actually have to probably hold somebody in contempt of court … to say you violated this order. And then we would go appear and say, ‘Where did we violate the order? Because the way we’re reading it, you constantly put in, ‘pertaining to this file, pertaining to this docket only.’ Not to mention ... the issue that you’re violating First Amendment rights.”