Should MSU be leading Nassar investigation?

EAST LANSING - The attorney for three of the more than 60 women who say former MSU physician Larry Nassar sexually assaulted them said he has "serious concerns" about whether the Michigan State University Police Department can be impartial in its criminal investigation, particularly where allegations against university officials or staff are concerned.

Attorney Jamie White said he became concerned when he discovered discrepancies in a detective's account of an interview with one of his clients.

As a result, White said he requested that the Michigan Attorney General's Office, which is prosecuting Nassar, ask an outside law enforcement agency to take over the investigation.

Andrea Bitely, a spokeswoman for Attorney General Bill Schuette, declined to discuss White’s allegations but said the MSU Police Department will remain the lead investigative agency.

"(MSU Police) Chief Jim Dunlap has done an exemplary job working with the Office of Attorney General on the investigation thus far," she said. "And we have confidence in his ability to objectively investigate without fear or favor."

Bitely added that Schuette doesn't have the authority to remove a police agency from an investigation or to appoint another agency to lead an ongoing investigation. The State Journal has not been able to determine whether Michigan law has any provision for a public official to order such a change, although several outside legal experts suggested the university could opt to step aside to protect the integrity of the investigation.

The university police department directed questions to MSU spokesman Jason Cody. He declined to comment on White's complaint to Schuette or allegations made in recent days in court documents that university staff attempted to influence the investigation by ordering athletes not to speak with police. Cody said he didn't believe there are conflicts of interest for the university's police department.

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"Our police investigate all crimes within their jurisdiction," Cody said. "They will continue to do so whether it’s this case or any other."

White’s complaint to Schuette's office is among several potential conflicts of interest recently revealed:

• On Jan. 27, court documents White filed alleged that a university official told a women's athletics team not to answer questions from police about Nassar.
• In the same court filing, a current student-athlete who has accused Nassar of sexual assault and is one of the members of that athletic team was told her personal cellphone was subject to checks by university officials. 
• White's filing also alleges that as recently as December, an MSU coach told that athlete's mother that her daughter's alleged sexual assault was part of a legitimate medical procedure.
• On Monday, court documents filed by another local attorney alleged that an MSU coach knew of concerns about Nassar in the late 1990s. Documents allege that Kathie Klages, now in her 27th year as head coach of the women's gymnastics team, cautioned a teenage girl who came forward with concerns about medical treatments she was receiving from Nassar that filing a complaint could lead to "serious consequences" not only for Nassar but for the teenage girl.

"I have serious concerns at this point in time that the Michigan State University Police Department, at least based on the optics and what I witnessed with my own eyes, could interfere with the successful completion of the prosecution of Dr. Nassar," White said. 

In early January, Cody said the university's review to that point had not found evidence that "individuals came forward to MSU with complaints about Nassar before Aug. 29, 2016, other than the 2014 complaint that was investigated by MSU Police and our Title IX office."

Lawsuits filed against MSU allege that coaches or trainers were told of allegations in the late 1990s and early 2000s on at least three occasions.

And on Jan. 27, after learning of the allegation that an MSU official had told a women's team in September not to answer questions from police, Cody said that the university "from the top down" has encouraged anyone with information or who believed they were a victim to report information to the university police and Title IX office. 

In an emailed statement from the university communications office, Dunlap, who reports directly to MSU President Lou Anna Simon, said "all criminal violations are investigated" and allegations are referred to either the Attorney General's Office or the U.S. Attorney's Office. He added that if non-criminal allegations are made, they're sent to the appropriate administrative office.

"At no time has President Simon demanded anything from our office other than her expectation that a thorough investigation of these cases occur," Dunlap said. "At no time has the Attorney General or the U.S. Attorney expressed any concerns over the ability or quality of the investigation by MSUPD."

Simon, who did not offer comment for this story, sent an email Friday afternoon to members of the "MSU community" regarding the Nassar case and MSU's response.

In the email, she said the university's top priority is "ensuring justice is served" and that reviews of Nassar's time at MSU and protocols within the MSU HealthTeam are already underway. She added that the university will be respectful of the investigative and judicial processes, as well as the alleged victims, therefore MSU's ability to comment on stories or public information may be limited.

"There should be absolutely no ambiguity that we have always expected and continue to expect every university employee to cooperate fully with any law enforcement investigation, as well as any internal reviews," Simon wrote. "Any interference with an investigation or review will not be tolerated."

Nassar, 53, of Holt, is facing three criminal sexual conduct charges in Ingham County and two federal child pornography charges. None of the charges relate to his role as a doctor or the controversial medical treatments at the core of allegations by more than 30 women in court documents.

MSU role in criminal investigation questioned

Several experts told the State Journal that MSU shouldn’t be conducting its own internal Title IX investigations or even a broad university review of Nassar's conduct, let alone leading the criminal investigation.

John Clune, a Colorado-based attorney who recently filed a federal lawsuit against Baylor University related to alleged sexual assaults by football players, said just because universities have the ability to do investigations, and many do, it doesn't make it a good idea.

"Schools can do this," he said. "They can do these investigations, but that's asking for headaches if they do it on their own. A lot of schools don’t want to relinquish control."

The best approach is to bring in a statewide law enforcement agency, such as the Michigan State Police, to conduct the investigation, Clune said. He added that high-profile investigations, investigations related to a university's athletic department and investigations that might reveal misconduct by other university officials are ripe for conflicts of interest.

Colby Bruno, a Massachusetts-based attorney for the Victim Rights Law Center, said having an outside law enforcement agency lead the investigation helps ensure that reports and evidence that could make the university look bad aren't withheld from prosecutors. Concern for that can be alleviated, she said, if the university and local police agencies have good record-sharing policies in place.

"You want to see a robust investigation," she said. "And you’re more likely to see that from a local law enforcement agency rather than a university (police department)."

MSU's Cody said there is specific information in university memorandums of understanding with local law enforcement agencies about "sharing information and evidence and obtaining evidence."

A request for outside agency

White said he asked Schuette's office to appoint the State Police to investigate after he discovered that an MSU police investigator's account of an interview with his client differed from his office's transcript and his memory of the meeting.

On Monday, days after his court filing made public allegations that a university official told the women's athletics team not to speak to police, White told MSU Det. Sgt. Andrea Munford there were "concerning discrepancies" between his law firm's notes and comments she made about her "recollection of this meeting," according to an email obtained by the State Journal.

White told the State Journal the discrepancy had to do with his client telling Munford about the directive from the MSU official.

In the Monday email, White also canceled a follow-up interview between Munford and his client, and White requested that no direct contact between police and his client or her family be made without his knowledge and consent.

Just one day later, White sent another email to MSU police, saying it was his understanding that another police official contacted his client's mother and said, "lawyers are interfering with the investigation." White said in the email his office had and will continue to assist in Nassar's prosecution, but that "a concerning set of events" took place recently involving Munford.

Rachael Denhollander was among the first to publicly make allegations about Nassar to the Indianapolis Star last year and is one of the women suing the doctor, MSU and USA Gymnastics in federal court. In an email to the State Journal, she said Munford is the type of person society needs to combat a culture of sexual violence.

"While I have joined a civil suit and believe MSU as an institution and many of the individuals in authority have significant culpability for what has happened with Larry Nassar, I am fully confident that Det. Munford is not, and has not, been part of this," she said.

John Manly, a California-based attorney whose law firm represents more than 20 women or girls who have filed lawsuits against MSU and Nassar, said Munford is a big part of why Nassar has been charged as a result of the ongoing investigation.

He said he and his clients have had many interactions with Munford.

"And she has behaved at every turn as you would expect a police officer would, meaning she puts the victim first and is attempting to find the truth."

Manly, however, said last week that White's client's allegation that female athletes were told by a university official not to talk to police should be taken seriously, and could constitute "obstruction of justice." He added there should be "an immediate investigation by an outside law enforcement agency to see if that happened."

Cody, the MSU spokesman, did not address whether that specific situation was under investigation but affirmed that MSU Police investigates all allegations of criminal activity on campus.

Previous investigations

The current MSU criminal investigation of Nassar isn't the first. And it isn't the first time the university has conducted an internal Title IX investigation of the doctor.

In 2014, after a then-recent graduate made sexual assault allegations against Nassar, university police opened a criminal investigation and the university's Office of Institutional Equity opened a Title IX investigation.

The police investigation didn't result in charges from the Ingham County Prosecuting Attorney's Office. The Title IX investigation cleared Nassar of sexual assault claims, based on the opinions of four medical experts with close ties to Nassar and the university. Cody said the Title IX investigation has been reopened. Nassar was fired in September, in part because he didn't follow professional standards put in place after the Title IX investigation, documents show.

Related:  At MSU: Assault, harassment and secrecy

Additionally, the State Journal reported in early January that in 2004, the Meridian Township Police Department investigated Nassar, but a request for charges was never sent to prosecutors. That investigation also has been reopened.

Some of the allegations MSU police are investigating from the more than 60 women and girls date back decades, and more than 30 women have alleged in court documents those assaults occurred during medical visits. MSU police are working with the FBI, and the Texas Rangers are conducting their own sexual assault investigation of Nassar related to allegations made at a Texas training center for gymnasts.

The university is also conducting a broad review of Nassar's conduct, a review that is in addition to the criminal and Title IX investigations. That review is ongoing with some advice from an outside law firm, Cody has said. He added this week that he believes it's appropriate for the university to conduct the review, and MSU is "taking all the prudent steps that any institution would."

"We are confident that there is no conflict of interest and that the (internal review) being done is free of bias," he said.

However, Cody declined to comment on who was conducting the broad review or to whom those people report. He said he didn't know if the results of the internal review would be made public.

Bruno, the attorney for the Victim Rights Law Center, said based on MSU's history of investigating Nassar, she didn't think there was anything left to do but go to an outside entity to conduct the review.

"I think they’ve shown a pattern to ineptly investigate this, to investigate this person," she said. She added that while it might be hard for the university to give up control of that review and the Title IX investigations, "I think that's what they owe to the victims."

ContactMatt Mencarini at (517) 267-1347 or mmencarini@lsj.com. Follow him on Twitter@MattMencarini.