Michigan State’s Defender Led Review of Abuse
Posted January 27, 2018 4:52 p.m. EST
Updated January 27, 2018 4:55 p.m. EST
As sexual abuse reports against Dr. Lawrence G. Nassar flooded in a year ago, besieged officials at Michigan State University announced they had ordered an internal review. Overseeing it would be Patrick J. Fitzgerald, a former federal prosecutor whose reputation for investigations into mobsters, terrorists and corrupt politicians led admirers to deem him a modern-day Eliot Ness.
Last month, Fitzgerald wrote that no one at the university understood what Nassar, a faculty member and team physician, was up to until the victims began going to the news media in 2016.
“While many in the community today wish that they had identified Nassar as a predator, we believe the evidence in this case will show that no one else at MSU knew that Nassar engaged in criminal behavior,” he wrote in a letter to the state’s attorney general.
But Michigan State had conducted an inquiry into Nassar’s actions before. In 2014, a woman complained to the head of the university’s sports medicine clinic that Nassar had inappropriately touched her, prompting a Title IX review that concluded, based on consultation with the doctor’s colleagues, that his actions were “not of a sexual nature.” Five women have said in lawsuits that as early as the late 1990s, they had reported sexual abuse by Nassar to university coaches, trainers or counselors.
As Michigan State finds itself under intense scrutiny for its handling of Nassar, critics of the university’s response, including lawyers for more than 100 victims, say they cannot understand how Michigan State officials did not take action years earlier. They question how the earlier complaints resulted in no apparent discipline.
And they accused the university of failing to conduct a top-to-bottom, truly independent investigation, settling instead for a review by a legal team that was also trying to protect the school from any damage in the courts. Michigan State portrayed Fitzgerald as reviewing the Nassar cases even as he was hired to defend the university from lawsuits
“Michigan State led the public to believe that there had been an independent investigation,” Tom Leonard, the Republican speaker of the Michigan House of Representatives, said Friday in an interview. “And then as we continued to dig into this, we found out it was not an independent investigation. It was an internal investigation to shield them from liability.”
Fitzgerald said Friday that his team had never been “engaged to produce a public report” on the Nassar case. He suggested that his team’s role had been misinterpreted by some. In fact, the initial contract between Michigan State and Fitzgerald’s firm makes no mention of carrying out an independent investigation or producing any report.
“We were engaged to provide counsel regarding anticipated litigation and to make sure that any internal reviews did not interfere with the two law enforcement inquiries underway,” he said, referring to criminal investigations that led to Nassar’s guilty plea and sentencing. “In the course of gathering facts for the representation, the team of attorneys and investigators has conducted approximately one hundred interviews and reviewed a large number of documents. Our work is still ongoing.”
Under the terms of the law firm’s contract, the lawyers were to defend the university in civil lawsuits, facilitate “cooperation” with law enforcement and provide “counseling on any internal reviews conducted to make sure they are carried out in a manner that will best assist the university’s response.”
Though some women say they told university employees about abuse years ago, Fitzgerald wrote in December that no one who knew Nassar believed he could be capable of such behavior. “It is clear that Nassar fooled everyone around him — patients, friends, colleagues and fellow doctors at MSU,” Fitzgerald wrote.
Over the months since they hired Fitzgerald, 57, and his team of lawyers, Michigan State officials have highlighted his review — sometimes noting Fitzgerald’s involvement by name — as a sign of the seriousness of their response. Lou Anna K. Simon, who resigned as president Wednesday, had portrayed the university’s review as a robust and “tireless effort” that would go on as long as needed. “Even as we examine — through both criminal investigations and a thorough internal review — how something so abhorrent happened here and went on for so long, we are taking action,” she said last April.
Nassar was sentenced to 40 to 175 years in prison Wednesday after days of wrenching testimony from more than 150 women who have accused him of molesting them while he was a doctor for Michigan State and the national gymnastics team. The president stepped down hours later.
By week’s end, Michigan State’s athletic director, Mark Hollis, had also resigned. And two outside agencies — the federal education department and the Michigan attorney general — had begun what the university’s critics hoped would be truly independent investigations into its handling of Nassar.
Bill Schuette, the state attorney general, said Saturday that his office was leading a review that would “put a bright light in every corner of the university.” He promised that the investigation would look “from the president’s office down” for answers about what had happened.
Schuette also said he would ask the university’s trustees to have Fitzgerald “turn over all information he has gathered in the course of his work.”
“Their response to this simple request will speak volumes,” said Schuette, whose investigation involves a special prosecutor and Michigan’s statewide police agency.
On Friday, Joel I. Ferguson, a Michigan State trustee, said he agreed with criticism of Fitzgerald’s role: “We have the person who was defending us investigating us.”
“There was a conflict,” he added.
But Brian Breslin, the chairman of the board of trustees, said he had “every confidence” in Fitzgerald’s interviews and information. “He never developed a report and was never asked to,” he said.
Asked whether there was a conflict in employing the same person to both defend and review the institution, Breslin said he had no comment.
Michigan State was dealing with a public relations crisis and a growing number of lawsuits when it hired Fitzgerald, who as the U.S. attorney in Chicago had built a reputation as a meticulously prepared, unyielding foe of crooks. Declaring that the corruption would “make Lincoln roll over in his grave,” Fitzgerald oversaw the prosecution of Rod R. Blagojevich, the idiosyncratic former governor of Illinois accused of trying to get something in exchange for an appointment to the U.S. Senate seat that Barack Obama vacated when he was elected president.
Fitzgerald drew national attention by getting a conviction in a CIA leak case against I. Lewis Libby Jr., the former chief of staff for then Vice President Dick Cheney. And he had worked on high-profile terrorism cases from New York, including the trials of four defendants in connection with the 1998 bombings of U.S. embassies in Kenya and Tanzania.
“As far as investigating something, there’s absolutely nobody better,” Sam Adam Jr., one of Blagojevich’s defense lawyers, said. “As a criminal defense attorney, I can tell you, he was so good at applying pressure to people.”
But Fitzgerald’s role in the Michigan State case is not as prosecutor. Since 2016, Michigan State’s trustees have paid him and his law firm, Skadden, Arps, along with other lawyers, to deal with the Nassar case and to respond to litigation against the school. The true scope and purpose of the lawyers’ internal review have become a matter of fierce debate in recent days, but the trustees last February said the lawyers’ role was to “represent the university in all aspects of this matter,” adding, “This representation will include conducting the factual review necessary to address the allegations being made and to assess Nassar’s former work at the university.”
A Michigan State contract with Fitzgerald’s firm included an hourly rate of up to $990. The ABC affiliate in Detroit reported this month that Fitzgerald’s firm has billed the university nearly $4.1 million.
“The public relations team at Michigan State gave the impression that he was going to do some sort of dispassionate, independent investigation, and that simply was not true,” said John C. Manly, a lawyer for more than 100 of the women who have sued or made claims against Michigan State.
Manly said no one from Michigan State or its legal team had sought to interview his clients about what had happened. Fitzgerald said his team took “affirmative steps” not to interview victims of the abuse because of ethics rules restricting contact with plaintiffs in civil cases.
Among the women suing are five who reported feeling uncomfortable or violated to coaches, trainers and counselors in the late 1990s and early 2000s.
One of the women, Larissa Boyce, said she was molested by Nassar for over two years, beginning at age 16, while training with Michigan State’s youth gymnastics program in 1997 and 1998. Boyce said she had told the women’s gymnastics coach at the time, Kathie Klages. But instead of helping, the coach explained to Boyce that she was probably “misunderstanding” the situation and implied that Boyce would get in trouble if she filed a more formal complaint, according to a lawsuit.
Another gymnast said she had also told Klages about abuse by Nassar around that time. Klages retired last year amid the scandal. Her lawyer declined to comment, citing the pending litigation.
Michigan State’s policies require all employees to promptly report any sexual misconduct they learn about involving a faculty member, staff member or student. But it is not clear that any of the people who heard the complaints in the late 1990s and early 2000s reported it to university administrators.
In a court motion two weeks ago seeking to dismiss the case against the university and its employees, including Klages, Michigan State said supervisors did not even know there were allegations against Nassar until 2014, when another woman complained to the head of the university’s sports medicine clinic, Jeff Kovan, that Nassar had massaged her breasts, buttocks and vaginal area. In that case, an investigator consulted with three doctors and a certified athletic trainer, who backed Nassar’s explanation that his actions were medically appropriate to treat the patient’s pain. Each of the four had a connection to Nassar: One of the doctors studied under him and was a colleague and friend, the investigative report said; one had known him since 1988 and was a classmate and teaching colleague; one had known him since 1995, and he had treated her daughter; and the trainer worked regularly with Nassar in the training room, an average four hours a week for 17 years.
The university found that Nassar’s actions were appropriate and “not of a sexual nature.”
Nassar continued to molest patients, according to lawsuits, and even as late as August 2016, just before victims began to go public, some Michigan State employees told gymnasts that Nassar’s methods were appropriate. The employees also sternly warned gymnasts not to speak to the media, according to allegations in court filings.