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What we may be learning about Larry Nassar’s defense strategies

May 26, 2017

“How you doing, kiddo?” Judge Donald Allen asked a 17-year-old witness who’d just wrapped up a long, disturbing story of sexual assault that she says has damaged both her ability to trust and her desire to be touched. “That wasn’t fun,” she admitted, her eyes red and wet for the first time since she took the stand.

“Better than the dentist?” the judge joked.

“I’d much rather go to the dentist,” she replied.

That’s how another full day of testimony and cross examination ended Friday, in the 55th District Court in Mason. Here, Dr. Larry Nassar faces 23 criminal counts involving the alleged abuse of seven women and girls. Until about 10 months ago, Nassar was a revered sports doctor and associate professor at Michigan State University, best known for being the physician for the U.S. Olympic gymnastics team. On Friday, he shuffled into court wearing an orange jump suit and orange Styrofoam flip flops. "I feel like we should say 'cheese,'" defense attorney Shannon Smith joked, putting her arm around Nassar as news cameras clicked.  

Panic attacks, lost trust, and a fear of men’s hands

All four of the alleged victims who testified today are teenagers. Only one of them, at 18, is a legal adult. The youngest two are 16. They each described repeated, nonconsensual digital penetration by a trusted doctor, possibly happening as early as age 9, 10 or 11.

Judge Donald Allen
Credit Kate Wells

It was painful, one said; “yucky,” another described it. “Highly uncomfortable and gross and disgusting,” the 17-year-old recalled. A third girl, now 16, says at the time she felt ashamed and worried that, because of a bacterial infection, Dr. Nassar would think she smelled bad.

But they trusted Dr. Nassar, who was “in a league of his own,” as Smith put it, when it came to treating competitive gymnasts.

It wasn’t until they read about other gymnasts’ accusations against Nassar, in the news in September 2016, that they say they understood what really happened. Defense attorneys have zeroed in on that article, which details allegations that Dr. Nassar groped at least two young athletes, and used his ungloved fingers to penetrate them. “It was too familiar,” one witness told the court today. “I couldn’t finish reading it.”

But even though that article made it sound like not wearing gloves was a “big deal,” defense attorney Shannon Smith said during cross examination today, what if Dr. Nassar has legitimate reasons for not wearing gloves during those treatments?

Yet for Victim B, a 17-year-old, it wasn’t just the part about gloves that set off alarm bells. It was when Nassar’s previous attorney told the IndyStar that “his client never used a procedure that involved penetration.” She knew differently, she told the court, from first-hand experience. “That’s when I knew it was sexual assault,” she said.

But what if you knew that Nassar had never actually claimed that he never digitally penetrated his patients? Asked defense attorney Matthew Newburg. What if it was just something his lawyer said? Would that make a difference? “No,” Victim B shot back. “Your lawyer speaks for you.”

One witness says since the alleged assault, she doesn’t like being in even casual conversations with male teachers. She had a panic attack, she told the court, when she saw a photo of a man’s hands, because it reminded her of Nassar.

Another says she told her romantic partner that Dr. Nassar put his fingers inside her when she was 11, because “I needed to let them know [why] I’m very uncomfortable being touched, in any way or form.” A third says she’s been angry and upset this past year, and nobody at school knows why. “I can’t get away from it,” she told the court.

Distinct themes come up again and again for the defense

The court also got an early glimpse of what strategies the defense may use on behalf of a man whose case has been national news for months. Larry Nassar’s alleged abuse has been the subject of federal hearings, connected to the resignation of the head of USA Gymnastics, and is the subject of police complaints from more than 80 women and girls. He’s facing criminal charges for sexual abuse at the state level in several courts, plus federal child pornography charges.

Nassar’s defense attorneys, Shannon Smith and Matt Newburg, have always maintained their client's innocence. They argue the intravaginal and anal procedures he used were legitimate medical techniques, just ones that witnesses weren’t familiar with, they say, because of Nassar’s unique level of expertise.  

Witnesses could just be doing this for the money, defense attorney suggests

Nassar's attorneys have also made several accusatory references to the witnesses’ involvement in civil lawsuits against Nassar.

Smith asked one girl if she’d seen any ads for lawyers in the area, like “if you’ve been a patient of Larry Nassar’s, call us?” No, the 16-year-old said, she hadn’t.

When the prosecution objected on the grounds of relevance, Smith told Judge Allen these questions about lawsuits have to do with determining the witnesses’ motive. That, Smith said, could relate to their credibility on the stand. To put it bluntly: The defense is suggesting these teenagers are lying or exaggerating about sexual abuse in order to win monetary damages in a civil suit.

Smith also asked the 18-year-old witness, referred to in court as Victim E, if she recognized her (Smith.) “My kids also go to [the gym where Victim E trained, the name of which Michigan Radio is withholding to protect her privacy,]” Smith said. No, Victim E replied, she didn’t recognize her. Smith added that Victim E has, in fact, coached her kids in past. “My kids aren’t as good as you are,” Smith laughed.

Defense argues these athletes saw significant improvement under Nassar’s care

Both Smith and Newburg spent a lot of their cross examinations establishing the witnesses’ athletic background – how they started gymnastics as early as age 2, how they put their bodies through hours of grueling training every week for years, and how they sustained multiple, sometimes chronic injuries before they were even out of middle school.

The reason they all came to Dr. Nassar, Smith pointed out, was because they couldn’t get help from other doctors they’d seen. “You would have done anything to make [the pain] better, correct?” she asked one 18-year-old witness today. “He was the gold standard?” Yes, she said.

Both defense attorneys also sought to show the court that these witnesses did get better during treatment with Nassar. “Is it fair to say your injuries were improving?” Newburg asked Victim D, who’s 16 years old. “And you were adopting Dr. Nassar’s advice?” Yes, she confirmed.

In fact, that same gymnast repeatedly sought Dr. Nassar out for treatment, the defense argued, especially when big meets were coming up and college scholarships were potentially on the line.

And this was after Dr. Nassar used the intravaginal procedure, the defense said. Nassar also made video tapes of her treatment, to show her coaches and her parents how to help treat her injuries.

But prosecutors Angela Povilaitis and Robyn Liddell, both with the attorney general’s office, pushed back. They’re trying to separate the vaginal penetration from the “normal” techniques they say Nassar also used, like x-rays, massage, bone scans, stretches and physical therapy.

How did it feel, Povilaitis asked Victim D, when Dr. Nassar put his fingers inside you? “Yucky, uncomfortable,” she replied. And how did it feel when he did other, more typical treatments? “Fine,” she said. “Helpful.”

And did any of those videos Nassar made of her treatment ever include vaginal penetration? “No,” Victim D said. And did Dr. Nassar ever tell you to have someone else, Povilaitis continued, put their fingers inside you as part of that treatment? “No.”

These preliminary hearings will resume in three weeks, when one other alleged victim is expected to testify.