The sun was shining on a warm autumn day in Louisville, Kentucky. Rachael Denhollander was enjoying a few minutes of peace while grocery shopping with her children when the phone rang. The name Angela Povilaitis lit up Rachael’s screen. The two women had developed a strong, mutual respect by November 2017, but as the date for a trial crept closer, any phone call from the attorney general’s office brought with it a new wave of stress.
Nassar and his defense team—now composed of Matt Newburg and Shannon Smith, a Detroit-based attorney with a history of defending sexual offenders—were holding tight to their argument that all of Nassar’s alleged instances of sexual abuses were in fact legitimate medical procedures. Nassar’s claim of innocence was one of principle more than anything else. Nassar’s wife, Stefanie, had divorced him earlier that year. His chances of working with gymnasts or practicing medicine in the future were gone. Months earlier, in July, he pleaded guilty to child pornography charges in federal court. While his sentence for those crimes was not yet set in stone, the fifty-four-year-old man was likely staring at multiple decades in prison no matter how his criminal sexual conduct cases in state court concluded. Still, he clung to the idea that he had not sexually assaulted the more than a hundred women who had filed complaints against him.
Jury selection in Ingham County was scheduled to begin December 4. The trial would be presided over by Judge Rosemarie Aquilina, who had recently decided the child pornography charges against Nassar would not be allowed as evidence because it would unfairly impact a jury’s perception of the defendant.
Rachael and her fellow survivors were nervously unsure of what to expect from Aquilina. Born in Germany, the fifty-nine-year-old judge had previously worked in politics, in private practice, and as the first female judge advocate general in the Michigan National Guard, where her aggressive style earned her the nickname “Barracuda Aquilina.” She continued to stand out after she was elected to sit on the bench of the Thirtieth Circuit Court in Ingham County in 2008. She kept a streak of magenta-dyed hair tucked into her black pompadour. Her second crime novel—titled Triple Cross Killer and featuring a blood-spattered cover with the tagline “A Little Naughty Can Get You Killed”—was due to be published in December around the same time as Nassar’s trial.
Six months earlier, in April 2017, Aquilina rankled Nassar’s survivors when she issued a gag order to prevent any who were involved in the criminal case from speaking publicly about their experiences with Nassar before his trial. Judge Janet Neff, the federal court justice who presided over Nassar’s child pornography case, called Aquilina’s gag order “unconstitutionally vague.” Neff said the order limited the survivors’ free speech and ability to heal, which could “prevent new victims from coming forward.” Aquilina issued a new order with more specific language to address some of the negative feedback but held to her belief that some type of restraint was necessary to provide a fair trial and avoid a “carnival atmosphere.”
The gag order remained in place in November as Aquilina put plans in motion to summon a jury pool of eight hundred citizens. She cast a wide net in hopes of finding twelve people in the greater Lansing area who had not heard of Larry Nassar, his federal child pornography crimes, or any of the other harrowing stories of his past.
Opening arguments were expected to begin in early January. The deadline for any type of plea deal that could preempt a lengthy, costly trial—December 1—was just weeks away.
Rachael pressed the phone to her ear, and Povilaitis delivered some unexpected good news. Nassar’s attorneys called earlier that day to explore the potential of a plea deal. There were no guarantees the two sides would find an agreeable middle ground, but Povilaitis wanted to know what kind of punishment the women she represented would find acceptable.
Povilaitis and her team set about informing and gathering input from each of the 125 women and girls who had lodged criminal complaints about Nassar at that point. She knew from the start she wasn’t going to agree to any terms of a plea deal without their blessing. Rachael remained skeptical. She wasn’t sure Nassar’s narcissistic tendencies would ever allow him to admit he wasn’t helping his patients. She wouldn’t accept a plea unless Nassar was forced to admit his actions were solely for his own sexual pleasure. Rachael and Povilaitis weren’t even completely convinced that a plea deal was the right way to proceed.
A guilty plea could lead to a softer sentence and a chance that he would outlive his time in prison. They didn’t know yet how long his federal sentence for the child pornography charges would be. A trial would allow Povilaitis to lay out, in painstaking detail, the depths of Nassar’s crimes and the long-term effects they had on the women he abused. A trial would remove any doubt about the damage he had done.
A trial would also mean Rachael and others would have to take the witness stand and relive their trauma in a public setting. They would face questions from attorneys who would try to cast them as liars and opportunists. It would also be a humongous gamble. If a jury found Nassar not guilty of sexual assault, he could live the rest of his life claiming to never have harmed a patient, even with the child pornography crimes on his record. In the fall of 2017, Povilaitis needed no reminder of the risks that come with throwing a case into the hands of a jury of twelve random citizens.
Weeks earlier, Povilaitis had stood in front of a jury in western Michigan as confident as she had ever been. She laid out her closing arguments against a long-haul trucker who had been accused of raping eleven women in four different states during a thirty-year time span. The defendant admitted to having sex with several of the women but argued the sex was consensual.
He told jurors that the women were angry with him and that through his terribly bad luck, this group of strangers, separated by hundreds of miles and more than a decade of time, had all decided to take out their anger in the same way: by telling police he was a rapist. Povilaitis was confident the jury wouldn’t buy that defense, and yet after a day of deliberation, jurors rendered their verdict: not guilty. All trials are gambles.
“Do whatever is best for everyone else,” Rachael told Povilaitis over the phone. “If people feel like they need to go to trial, I’m willing to do that. If there are people who really feel like they don’t want to do a trial, I’m good with that too.”
The two women talked about the details of what they thought would make a fair plea deal. They discussed the sentencing range, how many crimes Nassar would need to admit to, and who would get a chance to address him in court. The last point was not negotiable for Povilaitis.
Foregoing a trial would mean giving up the chance to enter all of Nassar’s crimes into evidence. It would mean the court would not rule on every charge against him. Povilaitis decided from her very first days on the case that every woman and girl who filed a complaint needed at least the opportunity to share her story with the court and confront Nassar in person. With a plea deal, their chance to do that would come through victim impact statements at a sentencing hearing. Povilaitis assured Rachael that unless everyone who wanted to speak was guaranteed that chance by Nassar’s attorneys and the judge, there would be no deal.
Victim impact statements were not a part of sentencing procedures in Michigan until 1985 when new laws were adopted as part of a nationwide movement to give victims a voice in the justice system. The previous year in a California courtroom—just a few hours north of where Mary Lou Retton would win gold that summer—the mother of Hollywood star Sharon Tate provided that state’s first victim impact statement at a parole hearing for one of the members of the Manson family cult who murdered her daughter in 1969. Tate’s statement, which helped lead to a denial of parole, is often cited as a high-profile benchmark for the court’s changing attitude toward victims.
In the earliest days of a formal American justice system, victims were responsible for building their own cases against a defendant. Victims remained front and center in legal proceedings throughout the 1800s. It wasn’t until roughly the turn of the twentieth century that they started to be pushed, literally and metaphorically, further back in the courtroom. By the late 1960s, most states gave both prosecutors and defense attorneys the right to keep victims out of the courtroom during a trial other than when they were on the stand to testify.
An unlikely marriage of law-and-order conservatives (who believed defendants were receiving an unfair advantage in criminal battles) and a growing group of feminist activists (who wanted victims to have a bigger voice) spawned the victims’ rights movement in the mid-1970s. Task forces were formed, and President Ronald Reagan threw his weight behind their cause not long after moving into the White House in 1981. One of the early victories of the movement came as a wave of new laws and amended state constitutions throughout the 1980s made the allowance of victim impact statements nearly ubiquitous in state courts.
The legal argument for the benefit of impact statements is threefold, according to Meg Garvin, executive director of the National Crime Victim Law Institute. First, they help the judge understand all the ramifications of a crime directly from the aggrieved party prior to deciding what type of punishment is in order. Second, they help the victim regain a sense of autonomy that can often be lost in the course of a crime and again when lawyers and investigators pick apart details of a crime’s aftermath. The opportunity to speak directly to the person who wronged them can often provide moments of closure, its own form of justice. Finally, impact statements help the community by providing citizens an active role in the legal process and a belief that order has been restored. Victims have been found to be more likely to report crimes to law enforcement if they believe the legal system operates with their best interests in mind.
Other legal scholars argue that the widespread use of victim impact statements stretches and contorts the legal limits of the court and has some potentially negative consequences. Putting too much stock in impact statements for sentencing, they say, can lead juries or judges to choose the severity of a punishment based on how likeable or emotionally compelling the victim is when presenting a statement.
Povilaitis, seeing far more benefits than problems, made victim impact statements a central part of several of the plea deals she struck in her role as a prosecutor. In this case, as in many other sexual assault cases she had tried in the past, she was going to make sure victims were heard.
She and Nassar’s attorneys traded phone calls and emails to work out the terms. Nassar, they agreed, would soon plead guilty to seven counts of criminal sexual conduct in Ingham County, where he lived and where he saw patients at the MSU Sports Medicine Clinic. Then he would plead guilty to three other counts of criminal sexual conduct in Eaton County, where he visited Twistars on a weekly basis. Povilaitis worked with the survivors of Nassar’s abuse and kept them updated while she negotiated the exact details of the pleas with his attorneys.
On November 21, exactly one year from the day that Munford and other officers arrested Nassar outside the Belle Tire auto shop, Povilaitis called Rachael Denhollander to let her know she was putting the finishing touches on a deal. Rachael read through the terms a final time. It was almost perfect. Almost.
Nassar was prepared to admit he put his fingers inside his patients, to admit to repeated acts of first-degree sexual assault. But the draft of the plea deal did not explicitly state that Nassar’s actions were done for his sexual gratification rather than any type of legitimate medical purpose. Justice, in Rachael’s mind, would not be served unless he admitted his true intentions on the record. She did not want to give him the sliver of ambiguity to claim his “treatments” turned out to be criminal even though he did them in an effort to provide medical care.
She pulled open her laptop and set to work in hopes of finding language in the legal statutes that would force such an admission. She and Povilaitis ran through their options. It was well past sunset when they found what they needed. As part of the plea, Nassar would have to waive “any and all defenses he may have asserted at trial, including any defense that the conduct for which he pleads guilty was for a legitimate medical purpose.”
Nassar’s attorneys saw little reason to derail a deal so close to their deadline over a technicality. They signed off, and the next morning everyone met in court.
On November 22, 2017, Nassar stood silently in an orange prison jumpsuit and a white, long-sleeved undershirt in the center of Judge Rosemarie Aquilina’s courtroom for nearly twenty minutes while Povilaitis rattled off all the charges against him. The jury box was populated by roughly a dozen reporters and camera operators. The first few rows of the gallery at the back of the room were filled with attorneys and their clients, the former gymnasts and patients who had been fighting for years for the admission that would soon follow. The half-filled room buzzed with tense, hopeful whispers.
Aquilina thumbed through the signed document in front of her before looking up to ask Nassar, “How do you plead?”
“I plead guilty as stated, your honor,” he said.
She walked through each of the seven charges one by one as Nassar entered his pleas onto the record. She confirmed with him that he knew each charge came with a recommended minimum prison sentence of twenty-five to forty years, but if she wanted to, she could extend that time even further. She confirmed that he knew Povilaitis had brokered a deal that would allow all of his victims—not just the ones he pleaded guilty to assaulting—a chance to make statements in court before she decided his sentence.
She asked him if he was coerced into a plea, and she asked if he was in a proper state of mind to declare himself guilty. Then she asked if he used ungloved hands when he treated his patients.
“Yes,” Nassar said meekly.
“And it was not for any medical purposes, is that correct?”
He exhaled audibly, dropped his head, and closed his eyes. “Yes.”
“It was for your own purpose, is that correct?”
“Yes.”
“And in fact it was against medical protocol, is that correct?”
“Yes.”
Aquilina then asked if the prosecutors had any further questions.
“No, thank you,” Povilaitis said. “We are satisfied, your honor.”