Judge's Intemperate Comments in Sentencing Gymnastics Doctor Probably Not a Ground to Reverse the Sentence

You have no doubt heard about the case of Larry Nassar, the gymnastics doctor who pled guilty to 10 counts of criminal sexual conduct with girls under the age of 16. After several days of victim impact statements from over 160 girls (!), the judge sentenced him to 40 to 175 years in prison.


As the TV cameras rolled, the judge pulled no punches in her comments from the bench. She made the comment “I just signed your death warrant” and told Nassar he should never walk a free man again. In probably the most eye-opening statement, she apparently said: “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 someone or many people to do to him what he did to others.”

Now some people are claiming that the judge’s grandstanding during the sentencing might endanger the sentence:


Maybe he can appeal, but I doubt the sentence would be reversed as a result of these comments.

There was definitely some media showboating going on here. During sentencing, a judge is entitled to serve as the conscience of the community, and send a message to the defendant that his conduct is criminal and unacceptable and deserves to be punished. That said, fantasizing about the defendant being raped is intemperate and inappropriate. However, I doubt that an appellate court is going to reverse the sentence for that.


In my career I have heard, or heard about, judges delivering zingers from the bench at sentencing. They can indeed pose problems on appeal. For example, at the sentencing for a particularly nasty gang member whom I prosecuted for murder, the defendant’s lawyer told the judge that the defendant should be praised for taking the stand and giving testimony that exonerated his co-defendant. The judge replied: “I think he should be put up against a wall and shot.” Then the judge sentenced the defendant to the maximum, which was over 100 years to life. The judge’s comment became an issue on appeal, and the appellate court said that the comment was intemperate and inappropriate. However, they declined to reverse the sentence, saying that the judge had very little discretion in any event, and that any anger the judge was expressing was based, not on some unrelated prejudice, but rather on the defendant’s conduct as revealed at the trial.

Here’s a story of a zinger that poses no grounds for appeal. Legend has it that a defendant in Los Angeles County received a long and richly deserved prison sentence for crimes of violence. As the defendant was being taken out of the courtroom, he yelled at the judge: “Judge, I can’t do that much time!” The judge looked calmly at the defendant and said: “Do as much as you can.”


It’s unfortunate that TV cameras so often turn courtrooms into circuses. From Judge Lance Ito’s embarrassing performance in the O.J. Simpson case to this judge’s fantasies about prison rape, the cameras turn everyone into carnival performers. But I don’t see the sentence here getting reversed because of a little showboating.



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