The Michigan Court of Appeals has cleared two former Michigan State University (MSU) officials who were charged with lying to investigators in connection with the sexual abuse investigation of former MSU gymnastics doctor Larry Nassar.
Nassar, who was also a team doctor for USA Gymnastics, is currently serving a decades-long prison sentence for sexually abusing hundreds of girls and young women.
In People v Simon (Docket No. 354013), former MSU President Lou-Anna K. Simon was charged with lying to police during the Nassar investigation. The charges were based on her 2018 interview with investigators about what university officials knew regarding Nassar. It was alleged that Simon knew as early as 2014 that Nassar had been accused of molesting a patient at a campus clinic. The trial court dismissed the charges against Simon, finding there was insufficient evidence for her to stand trial. That decision was appealed.
The Court of Appeals affirmed. “[T]he evidence was insufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that defendant made a false or misleading statement, such that the district court abused its discretion by finding that there was probable cause of this element of the crime and by instead binding defendant over for trial based on mere speculation,” the appeals court said.
In People v Klages (Docket No. 354487), two women had testified in court that, when they were teenagers in 1997, they told former MSU gymnastics coach Kathie Klages that Nassar had assaulted them during their treatment. During the 2018 Nassar investigation, Klages told police that she did not recall those conversations. Klages was later found guilty by a jury of two counts of lying to police.
The Court of Appeals vacated Klages’s convictions. “No evidence supported that Klages’s false statement regarding the 1997 conversations was material to the criminal investigation conducted in 2018,” the appeals court said. “Here, the prosecution never presented evidence of any underlying crime or even suggested that someone ‘got away.’ Klages’s false statements therefore did not represent or misrepresent any facts material to the [Nassar] investigation.”
People v Simon
In Simon, the ex-MSU president was charged with four counts of making a false or misleading statement to a peace officer during a criminal investigation, in violation of MCL 750.479c. The Eaton County Circuit Court dismissed the charges, finding there was insufficient evidence that Simon’s statements to police were affirmatively false or misleading.
The Court of Appeals affirmed the dismissal. Judges Stephen L. Borrello, Cynthia Diane Stephens and Elizabeth L. Gleicher were on the panel that issued the published opinion.
According to the Court of Appeals, the prosecution basically argued that Simon lied about two things: 1) whether she knew that Nassar was the specific individual being investigated in the 2014 Title IX investigation and 2) whether she knew the details of those allegations or the allegations involved sexual assault. The prosecution claimed the evidence and inferences from the evidence established that Simon was told in 2014 of Nassar’s name and the nature of the allegations against him.
“However,” the Court of Appeals said, “the prosecution did not introduce any evidence that [Simon] was actually informed in 2014, or at any time prior to 2016 of Nassar’s name or the details of the allegations against him. … [T]here was no evidence presented by the prosecution that [Simon] was actually apprised of the details of the allegations or complaint against Nassar in 2014 until after Nassar’s misconduct garnered national media attention in 2016. On this record, we cannot say that [Simon’s] statements during the 2018 police interview were affirmatively false or misled law enforcement in this regard. … Without evidence that [Simon] was provided with Nassar’s name or details about the nature and substance of the allegations in 2014, there was no evidence that [her] 2018 statements to the police were affirmatively false or misleading as required by the statute.”
Therefore, “the evidence was insufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that defendant made a false or misleading statement, such that the district court abused its discretion by finding that there was probable cause of this element of the crime and by instead binding defendant over for trial based on mere speculation,” the Court of Appeals concluded.
Judge Gleicher wrote a concurring opinion, saying the majority correctly ruled the prosecution did not produce any evidence to support the argument that Simon’s statements were false or misleading. “There are additional reasons to affirm the circuit court,” Gleicher pointed out. “Dr. Simon’s allegedly false statements were immaterial to the prosecution’s sham investigation, and her literally true answers cannot be subject to prosecution. Furthermore, the record reveals that Dr. Simon was charged for reasons that have nothing to do with bringing justice to Nassar’s victims or to vindicating legal principles. On those added bases, I concur with the majority.”
Judge Stephens also wrote a concurring opinion and said, “I additionally agree with the concurring judge that Dr. Simon’s alleged falsehoods were not material under MCL 750.479c(1)(b).”
People v Klages
In Klages, the former MSU gymnastics coach was convicted by an Ingham County Circuit Court jury of two counts of making a false statement to a peace officer, in violation of MCL 750.479c.
The Court of Appeals vacated Klages’s convictions in a 2-1 published opinion issued by Judges Elizabeth L. Gleicher and Cynthia Diane Stephens. Judge Stephen L. Borrello dissented.
“Klages’s brief on appeal takes issue with the sufficiency of the prosecution’s proof of several elements of the crime,” the Court of Appeals explained. “We find merit in her argument that the prosecution presented insufficient evidence that her denial of having taken part in a 1997 conversation about Nassar was a material fact under MCL 750.479c(1)(b).”
In its analysis, the Court of Appeals focused on whether Klages’s statements were “material” to the case. “[W]e conclude that the statements at issue – Klages’s denial of memory of the conversations with Boyce and RF and her denial that the conversations took place – were not material facts. … [T]he prosecution failed to prove that Klages’s failure to recall or to admit to the 1997 conversations was a fact material to the investigator’s determination whether someone at MSU other than Larry Nassar had committed criminal sexual conduct or misconduct in office.”
The “material fact” requirement in MCL 750.479c(1)(b) “requires proof of something more than an investigator’s unsupported and speculative opinion that he may have asked different questions, particularly absent evidence that the ‘material fact’ had any reasonable possibility of influencing the decision that matters – a charging decision,” the Court of Appeals said. “As in Kungys [v United States, 485 US 759 (1988)], when presented with the question of whether a false statement constitutes a material fact, materiality is not determined by an investigator’s belief that more investigation would have been helpful. Rather, as this Court described in [People v] Williams [318 Mich App 232 (2016)], a lie or ‘a willful, knowing omission of pertinent information about a crime may lead the police down a fruitless path, permit the destruction of evidence while the police look in another direction, enable the escape of the actual culprit, or precipitate the arrest of an innocent person.’ In those examples, misleading statements prevent the police from solving a crime and qualify as material because they deprive the decision makers of the information necessary to make an accurate and informed charging decision.”
In this case, the prosecution “never presented evidence of any underlying crime or even suggested that someone ‘got away,’” the Court of Appeals concluded. “Klages’s false statements therefore did not represent or misrepresent any facts material to the … investigation.”
Judge Borrello dissented, disagreeing with the majority’s decision for several reasons.
“The error, I believe, lies in the majority’s assertion there was no evidence that defendant’s ‘false statement regarding the 1997 conversations was material to the criminal investigation conducted in 2018,’” Borrello wrote. “In reaching this conclusion, the majority infers that a false statement is only material if it actually impacted the prosecution’s charging decision. I do not believe the language of MCL 750.479c requires such a precise level of specificity given its focus on prohibiting false and misleading statements during the investigative stage.”
Borrello also disagreed with the majority’s insinuation that the Nassar investigation could not have truly been a criminal investigation because it also involved allegations of institutional failures within MSU. “Because I believe there was constitutionally sufficient evidence to support the jury’s verdict convicting defendant in this case, I dissent.”