STATE OF MICHIGAN
IN THE EATON COUNTY CIRCUIT COURT

 

PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
Case No.: 
vs Hon. John D. Maurer

LOU-ANNA K. SIMON,
Defendant.

 

Opinion and Order on Defendant?s Motion to Ouasli Bindover

At asession of court, held in the City of Charlotte,
County of Baton, State of Michigan,

onthelg 7% day of (El/9:1: ,2020.

Present: HONORABLE JOHN D. Judge.

Defendant Lou?Anna K. Simon, former President of Michigan State University, was charged
by the Attorney General in a four-count Complaint with knowingly and willfully making a false or
misleading statement to a peace of?cer regarding a material fact in a criminal investigation having
been advised of that criminal investigation. MCL 750. 4790. Preliminary examination was held over
. seven days before the Honorable Julie H. Reincke of the 56? A District Court, who bound Defendant
over as charged. This matter is before this Court on the Defendant?s Motion to Quash the bindover.
This Court has reviewed the transcripts and the Opinion of the District Court; considered the
Defendant?s Motion, the Plaintiff?s response, and the Defendant?s reply; and heard oral argument on
May 8, 2020. For the reasons that follow, this Court grants the Defendant?s Motion to Quash as to
all counts.

1. BACKGROUND

In 2014, Amanda Thomashow made a complaint against Larry Nassar, a doctor at Michigan
State University?s College of Medicine who also separately treated USA olympic gymnasts. Ms.

Thomashow alleged that he had sexually assaulted her during a medical exam. Michigan State

University (MSU) conducted a Title IX investigation. In the ?nal report, which was reviewed and
approved by general counsel,- the investigator reached the conclusion that the complaint was
unfounded. The Title IX investigator also forwarded the report to the police for further investigation
into a potential crime. Ultimately, charging recommendations were made to the Ingham County
Prosecutor, but no charges were ?led against Larry Nassar in 2014.

In 2016, news broke that Dr. Nassar had sexually assaulted other former patients. Soon,
many more victims came forward. Dr. Nassar was convicted and sentenced in January 2018 in the
Ingham County Circuit Court, and in February 2018 in the Eaton County Circuit Court for multiple
charges of criminal sexual conduct. The Attorney General and Michigan State Police continued to
investigate. On May 1, 2018 during that investigation, two detectives interviewed Defendant Dr.
Lou-Anna Simon, President of MSU from 2005-2018.

On the basis of statements made in that interview, Dr. Simon is charged in this case as noted
above. Count I alleges that during an investigation of criminal sexual conduct the Defendant made
a misleading statement with respect to whether she knew Dr. Nassar?s name at the time of the 2014
investigation; Count II alleges that during that same investigation she made a misleading statement
with respect to whether in 2014 she knew the nature or substance of the Title IX investigation.
Count alleges that during an investigation of misconduct of a public of?cial, she made a
misleading statement with respect to whether she knew Dr. Nassar?s name at the time of the 2014
investigation; and Count IV alleges that during that same investigation she made a misleading
statement with respect to whether in 2014 she knew the nature or substance of the Title IX
investigation. .

II-. STANDARD OF REVIEW

This Court ?should not disturb the determination of the [district court] unless a clear abuse
of discretion is demonstrated.? People v. Doss, 406 Mich. 90, 101, 276 9 (1979) (quoting
People v. Dellabonda, 265 Mich. 486, 491, 251 N.W. 594, 596 (1933)). ?Primarily the question of
probable cause is for the consideration of and determination by the examining [court]. This court
may not agree with the but it has no right to substitute its judgment for 

?The object of a preliminary examination is not to prove guilt or innocence beyond a
reasonable doubt, nor should a [district court] discharge a defendant when evidence con?icts or

raises reasonable doubt of his guilt; such questions should be left for thejury upon the trial.? m. at

103 (quoting Eglple v. Medley, 339 Mich. 486, 64 708 (1954)). The district court is
statutorily required to bind over felony defendants to the circuit court when it determines ?at the
conclusion of the preliminary examination that a felony has been committed and there is probable
cause for charging the defendant Jenple v. Ynst, 468 Mich. 122, 125, 659 
604 (2003)(quoting MCL 766.13). ?Probable cause requires a quantum of evidence ?suf?cient to
cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief? of
the accused's guilt.? E. at 126 (quoting Peenle v. Justice (After Remand), 454 Mich. 334, 334, 562
652 (1997)). See also, People v. Fairev, 325 Mich. App. 645, 649, 928 705
cause is established if the evidence would persuade a careful and reasonable
person to believe in the defendant?s guilt. Emple v. Vest, 468 Mich. 122, 126, 659 604
(2003). Evidence supporting that the defendant perpetrated the crime may be circumstantial, but
must nevertheless demonstrate reasonable grounds to suspect the defendant?s personal guilt. Beep];
v. Tower, 215 Mich. App. 318, 320, 544 752 

THE ELEMENTS OF THE OFFENSES

All four charges are alleged violations of MCL 750.479c(1) Which provides that:

?Except as provided in this section, a person who is informed by a peace of?cer that he or
she is conducting a criminal investigation shall not do any of the following:
By any trick, scheme, or device, knowingly and willfully conceal from
the peace of?cer any material fact relating to the criminal investigation.
Knowingly and willfully make any statement to the peace of?cer that
the person knows is false or misleading regarding a material fact in that
. criminal investigation.
(0) Knowingly and willfully issue or otherwise provide any writing or document
to the peace of?cer that the person knows is false or misleading regarding a
material fact in that criminal investigation.?

Defendant is alleged to have violated subsection This Court must therefore consider whether
the District Court had probable cause to ?nd that Dr. Simon was informed by a peace of?cer that
he was conducting a criminal investigation and that she knowingly and willfully - made a
statement that she knew was false or misleading, regarding a material fact in that criminal
investigation. In other words speci?cally, was Dr. Simon informed by the interviewing detectives

that they were conducting a criminal investigation, did she knowingly and willfully make a false or

misleading statement, and was that false or misleading statement regarding a material fact in that
investigation?l

IV. PROBABLE CAUSE TO BELIEVE TH AT DEFENDANT

WAS INFORMED BY ONE OF THE DETECTIVES THAT HE WAS
CONDUCTING A CRIMINAL INVESTIGATION

One of the elements of the crime in question in this case is that the defendant was ?informed
by a peace of?cer that he or she is conducting a criminal MCL The
district court found that there was probable cause to believe Detective Cavanaugh advised Dr.
Simon prior to the interview on May 1, 2018 that he and Detective Arndt were conducting a
Criminal investigation.2 The defense argues that the detectives were not credible in their testimony
and that the evidence does not support such a ?nding.

Although the interview was recorded, there is no evidence on the recording that either
detective advised Dr. Simon they were conducting a criminal investigations There is also no
evidence in the detectives? written report that either of them advised Dr. Simon that they were
conducting a criminal investigation.4 The detectives? memories as to other aspects of the interview,
including questions the Attorney General wanted them to ask, were not particularly clear.5 It is

. unclear why an investigator with decades of experience -- or two such detectives working together

-- would fail to ask allegedly important follow up questions such as who told Dr. Simon about the

 

1 In Wards. unpublished opinion of October 30. 2013 (Court of Appeals No. 33?354. 2018 WL 5629733}.
the Court of Appeals'listed the following as elements that must be proven: a police officer informed the defendant that
the of?cer was conducting a criminal investigation. the defendant knowingly and willfully made a statement to the
officer. (3) the defendant knew the statement was false or misleading. and (4) the statement related to a material fact in
the crime the officer told the defendant he or she was investigating. Element #2 was not raised as an issue in this case
and is not addressed in this Opinion. The defense here argues that the peace officer is required to advise the defendant
of the specific crime being investigated, relying on Edwards. This Court disagrees that this requirement is contained in
the statute or in any binding legal authority. This statement in Edwards is dicta and non-precedential. A potential
defendant can know what is material to an investigation without knowing the specific crime or crimes the of?cer is
investigating. If the of?cer tells the person being interviewed that he is conducting a criminal investigation into the
mysterious death of a Mrs. Smith. the person being interviewed does not need to know the specific crimes the officer is
investigating in order to know that it is material to that investigation that he saw someone shoot Mrs. Smith the day she
disappeared. This Court is not persuaded by this defense argument.

2 District Court order. page 3.

3 PE Vol. V. page 150?151.

PE Vol. V. page 150-151. .-

5 At PE Vol. V. page 200. lines 12-18. Detective Arndt testified that he was not told by the attorney general to ask specific
questions that might have shed light on what Dr. Simon knew. However. at PE 1Vol. V. pages 201- 203. he testified that
he did receive an email from the attorney general's of?ce that states. ?Here is an updated list of Simon questions with
additional proposed questions from Christina. Chris and me." When asked. "[Yiou told us you don't recall verbatim
exactly what was said to her in this regard; is that correct?" Detective Arndt answered. "It?s been a year ago. so." PE
Vol. V. page 145-14? When asked. only did you not ask her in response to her answer who the staff person was
that informed her that a sports medicine doctor was under review in 2014. you did not ask her when she became aware
of that in 2014; correct?" Detective Cavanaugh noted that he "would have to refer to my. refresh my memory with the
report." PE Vol. VI. page 111. -

Sports medicine doctor under investigation or clarifying questions such as what did she mean by the
?substance? of the investigation.6 The detectives? failure to ask obvious questions that they had in
writing and discussed with legal counsel, questions they knew they were expected to ask, calls into
serious question whether or not they actually did tell Dr. Simon that they were conducting a
criminal investigation. If they failed to ask written questions and obvious follow up questions, it
stands to reason that they would also forget to make advisements that were not in writing,
especially in light of the fact that the advisement was not in the recording or in their written report.
Detective Amdt initially struggled in his testimonyto admit he?d made a mistake in not asking Dr.
Simon questions that might have promoted her to share the information they were supposed to
gather. The district court could have determined that the detectives had a motive to lie to cover up
yet another mistake -- that they failed to give notice of the criminal investigation even after the
attorney general?s of?ce reminded them it was important to do so.

Even so, the detectives testi?ed that they did in fact advise Dr.? Simon that they were
conducting a criminal investigation. When making a decision at a preliminary examination whether
a crime has been committed, the court ?has not only the right, but the duty, to pass judgment on the
credibility of the witnesses.? Eggple v. ?l?ost, 468 Mich. 122, 127-128, 659 604
(2003)(citing People v. l?aille, 383 Mich. 621, 627, 178 465 (1970). The credibility of the
witnesses, including the detectives, is much more dif?cult for this Court to ascertain than for the
district court. The district court judge was able to see their body language and hear the tone of their
voices. Based on the detectives? testimony in the preliminary examination transcripts and the lack
of recorded and physical evidence as to any noti?cation, it is quite possible that this Court would
have reached a different decision. However, simply because this Cburt would have reached a 

different decision .does not mean the district court abused its discretion with regard to this element

 

8 Detective Cavanaugh acknowledged they did not ask questions that were deemed important:

0. And would you agree with me, Lieutenant, that when she told you that she had been
advised of this by a staff person. neither you nor your partner, Detective Arndt, ever followed up and
asked her. ?Who was the staff person that told you this?"
A: That would, I agree with that. That is a correct statement.
0: So if you wanted to know if it was Paulette Gransberry Russell, or whoever it was that
told her about the sports medicine doctor being under review. all you had to do was ask
her who the staff person was that informed her of this, but you elected not to do so; correct?
A Correct.

PE Vol VI. pages 108-109.

of the crimes alleged. People v. Doss, 406 Mich. 90, 101, 276 9 (1979). This ?nding is not
reversed.

V. PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT
KNOWINGLY AND WILLFULLY MADE A FALSE 0R MISLEADING
STATEMENT TO THE DETECTIVE.

Detective Arndt asked at the May 1, 2018 interview:

?So I mean speci?cally to Nassar, were you aware of any prior investigation, you know,
before the story broke in the news, were you aware of any prior investigation with Larry
Nassar or, you know, misconduct for that matter, anything?? 

Dr. Simon responded:

was aware that in 2014 there was a sports medicine doc who was subject to a review. But
I was not aware of any of the substance ofthat review, the nature of the complaint, that was
all learned in ?16 after it became clear in the newspaper regarding the 

And then when Detective Cavanaugh asked,

?Well, how did you become aware of it in 2014? Is that something that?s part of a brie?ng
0r 

Dr. Simon responded:

was told by one of my staff members that there was a Sports medicine -- physician who
was going through OIE, none of the substance. And I don?t involve myself in the OIE
investigations.?

Although they were instructed prior to the interview to gather speci?c information from Dr. Simon,
and they had previously, before the interview, learned of Dr. Simon making a similar statement,
neither of the detectives asked Dr. Simon the name of the staff member or speci?cally what that
staff member told her or if she knew the exact date when she learned that information or if she was

told in an in-person meeting, in an email, or by phone.11 Neither detective asked her what she

 

7 Transcript of the May 1, 2018 interview of Dr. Simon. page 23.

a Transcript of the May 1, 2018 interview of Dr. Simon. page 23. These two sentences form the basis of all charges
against Dr. Simon. Dr. Simon was not able to ?nish her sentence because Detective Arndt interrupted her to say. think
that's going to boil right into our next question."

9 Transcript of the May 1. 2018 interview of Dr. Simon, page 24.

1? Transcript of the May 1, 2018 interview of Dr. Simon, page 24.

11 See. for example. PE Vol. VI, page 111:

Q. when she disclosed to you that she had been told by a staff person that a sports
medicine dector was under review. you didn't ask her whether she was informed of that by this staff
person in writing or verbally; correct?

A: Correct.

Q: And you never asked her if she asked this person who the sports medicine doctor was
that was under review, or why she didn't ask who the sports medicine doctor was that was under
review. You didn't ask her those questions either; correct?

A: Correct.

meant by ?the nature of the complaint? or the ?substance? of the OIE investigation. Neither
detective asked her if she might be able to produce more information if given an opportunity to
review her records. Dr. Simon never made any indication that she did not remember who that staff
member was or that she would have declined to answer any additional questions. Instead, the
detectives moved the conversation along asking questions about standard procedures related to OIE
investigations.

On this basis, the People allege that Dr. Simon made ?a statement or statements to the
of?cers she knew was false or misleading regarding the following material fact or facts
relating to the investigation, her knowledge of who was the subject of the 2014 MSU Title IX
investigation into the Amanda Thomashow complaint against Larry Nassar?'2 and ?that she was not
aware of the nature and substance of the 2014 MSU Title IX investigation into the Amanda
Thomashow complaint against Larry 

A. A Knowingly False or Misleading Statement .

The essence of the People?s evidence regarding what Dr. Simon- knew in 2014 about Dr.
Nassar?s assault on Ms. Themashow is this:

1. Ms. Thomashow communicated the details of Dr. Nassar?s assault on her to Kristine Moore

in May of2014.l4 .

2. Ms. Moore contacted Ms. Russell by bOth phone15 and email16 in May, almost immediately

after she heard the details from Ms. Thomashow. Ms. Moore didn?t tell Ms. Russell about

 

?2 Felony information ?led November 12. 2019. counts and In its brief in response to the motion. the prosecution
states, "Simon's first two charges are based on the first portion of Simon's statement to detectives that she was aware of
an allegation against a 'sp?orts medicine doctor.? as opposed to 'Larry Nassar.? and "The second two charges are based
on the second portion of Simon's statement that she was not aware of the nature of the allegation or the substance of the
review." Brief in Response. page 11. However. reading the felony information. it is quite clear that charges I and (not I
and It) correspond to knowledge of Larry Nassar's name and charges II and IV (not and IV) focus on the nature and
substance of the investigation.

?3 Felony information ?led November 12. 2019. counts Vol. I. page 44.? Ms. Thomashow testi?ed that she spoke with Ms. Moore by phone in mid-May and met with her in
person on May 29. 2014. Vol. page 46 and 49. Ms. Thomashow testi?ed that Ms. Moore seemed shocked by what
she heard "because when I started to explain where Larry put his hands. and I got through the description of the assault.
she had to clarify details. She said things along the lines of. ?I'm sorry. what happened? Excuse me? You're going to
have to repeat that'. And those are sounds of somebody who is shocked." PE Vol. I. page 53-54. No other witness
testified that Ms. Moore or anyone else at the university was "shocked" by the allegations. including Ms. Moore. Even so.
the district court found that "Moore was ?shocked'." District Court Opinion and Order. page 4. The district court went so
far as to say that "The allegations,the ?nature of the complaint? are extraordinary. are 'shocking' as Moore stated." District
Court Opinion and Order. page 5. However. Ms. Moore never made any such statement.

?5 PE Vol. II. page 60. There may have been two phone calls or perhaps only one phone call.

1? PE Vol. II. page 60-61.

all investigations, but she thought it was important to tell her about this one right away. Ms.
Russell received a summary of the allegations via email on May 16, 2014 at 2:32 pm.'7

3. Ms. Russell contacted Dr. Simon about the allegations via email18 and at a meeting on May
19, 2014.?

a. The email, sent on May 16, 2014 at 7:58 am, had the subject ?incident? and the
entire text of the email was: ?We have an incident involving a sports medicine doc."
20 This email came after Ms. Moore?s call to Ms. Russell, but before Ms. Moore sent
a summary of the allegations to Ms. Russell. 

b. For the purposes of the May 19, 2014 meeting, which may have been in person or by
phone (Ms. Russell does not recall),21 Ms. Russell provided Dr. Simon with an
agenda that included item number six, incident.?22 Dr. Simon had her own
agenda with her during the meeting that contained fourteen items.23 She wrote on
her copy both issues Court Case? and put a check mark next to that item.24
Ms. Russell had a folder that she may or may not have had with her during the
meeting that had ?sports med, Dr. Nassar and ?Estelle MCG age discrim?

written on the outside.25 There is no evidence that this incident? or Dr.

 

'7 PE Vol. ll, page 63.

1" PE Vol. page 111.

?9 PE Vol. page 126.

2? PE Vol. page 111.

21 PE Vol. page 175. ?Because again. it says May 19th by phone."

22 PE Vol. page 131. meant ?College of Osteopathic Medicine," WhiCh was Dr. Nassar's department. When
asked if incident? referred to the Nassar complaint. Ms. Russell testi?ed. ?I've answered that I can't say with
certainty that that's what it's about; but it may have been." PE Vol. page 149. Ms. Russell previously testi?ed that she
didn't know of any other COM incidents to which it might be referring.? PE Vol. page 135. .

23 PE Vol. V, page 18-19. At the next two meetings scheduled between Dr. Simon and Ms. Russell in June and July, it
appears, based on Dr. Simon?s system of writing an next to items that are discussed. the topics ?sexual assault
cases." ?Title IX implementation." were not discussed. PE Vol. V. page 19-21. likely was discussed at the July
meeting only. and Dr. Simon wrote "e-learning will be up and running? next to that topic. PE Vol. V. page 21. In all of Dr.
Simon?s meeting agendas examined. the name Larry Nassar never appears either typed or handwritten. Topics such as
"sexual assault" and "Title appear on an agenda for a meeting between Ms. Russell and Dr. Simon that occured
before Ms. Russell learned of the allegations against Dr. Nassar. PE Vol. V, page 26-27.

2? People's exhibit 14; PE Vol. IV. page 186-187. This item was checked, meaning that it was to continue on to the next
meeting. See also PE Vol. V. page 13. Although several names were written in Dr. Simon's handwriting on her copy of
the agenda, none of those names was Larry or Nassar. PE Vol. V, page 14?16.

25 PE Vol. page 149; Exhibit 12. meant "sexual assault." Ms. Russell's memory of the events of 5/14-19/2014
are not at all clear. For instance, she testi?ed, an agenda that's dated 5/19, and on my calendar that you've
shown me there was a meeting on 5/19 and a meeting that was scheduled on, 5/14. indicated I don?t recall if the
meeting on 5/14 occurred, but we have a folder that has background materials that I believe were related to why we
would have a meeting on the 14th; regardingr as it says on the outside. sexual assault survey. So if that meeting got
combined with the 5/19, then I had an agenda that was in this folder that you had that I turned over in 2019. that had
the agenda with no handwriting on it." PE Vol. page 148. Likewise, when asked about the May 14th meeting. Ms.
Russell noted. "Based on the exhibits that I?ve been givenone meeting.? And then asked about
the May 19th meeting, Ms. Russell said. "That appears to have been the, from the other exhibit that I was given, that

8

Nassar were ever discussed with Dr. Simon or with Dr. Simon?s knowledge at any
other meeting or in any other context?"S
Because Ms. Moore noti?ed them of Amanda Thomashow?s allegations,27 the police did their own
investigation in 2014. Recommendations were made to the Ingham County ProSecutor that charges
be brought against Dr. Nassar on the basis of his assault on Ms. Thomashow.28 Michigan State
University?s Title IX investigation under the direction of Ms. Moore resulted in a ?no
?nding.?29 Prior to Ms. Moore completing her report, general counsel?s of?ce reviewed and
approved it.30
Ms. Thomashow testi?ed that she did not communicate with Dr. Simon about Dr. Nassar?s
assault on her.31

Q: Prior to 2016, did you ever discuss Larry Nassar or your complaint that Larry
Nassar had sexually assaulted you, with Lou-Anna Simon?

A: No. 

Q: Prior to 2016, did you ever exchange any written communication with Lou-Anna
Simon regarding Larry Nassar or your complaint that you had been sexually
assaulted by Larry Nassar?

A: No.

There was no evidence or testimony to suggest that Ms. Thomashow had any knowledge of anyOne

else communicating this information to Dr. Simon.
Ms. Moore testi?ed that neither Ms. Russell nor Dr. Simon participated in any of the

interviews as part of the investigation.32 In fact, Ms.,Moore testi?ed that Dr. Simon ?had no

 

would appear to have been one of my meetings with President Simon." PE Vol. page 173-174. At the time

of her testimony. she did not hate much independent memory of the events to which she testified? In fact. she did not
appear to remember why she wrote "Dr. Nassar? on the folder. but instead was it was there so that I would
raise it in I'm assuming with Dr. Simon." PE Vol. page 149.

26 On the basis of the email which does not state Dr. Nassar's name or any details of the allegations, the calendar
showing a meeting scheduled for May 19. 2014 which does not state Dr. Nassar's name or any details of the allegations,
Ms. Russell and Dr. Simon's separately created May 19. 2014 meeting agendas which do not state Dr. Nassar's name or
any details of the allegations. Dr. Simon's handwritten notes from the May 19. 2014 meeting agenda which do not state
Dr. Nassar's name or any details of the allegations, and a ?le folder which Ms. Russell may have had with her during the
May 19, 2014 meeting that had written on it Dr. Nassar's name and Detective Cavanaugh concluded at the May 19.
2014 meeting between Dr. Simon and Ms. Russell "there was an exchange of detailed information regarding Larry
Nassar and the accusation against him." PE Vol. VI, page 98.

27 PE Vol. Ii, page 111.

23 PE Vol. I, page 69. Charges were not brought. but the testimony and evidence does not explain why Ingham County
Prosecutors did not press charges except that Ms. Thomashow indicated that the decision was based on the Title IX
report. Ms. Thomashow. in her testimony. concluded that the Michigan State Police investigation and the Ingham County
Prosecutor's 2014 decision not to prosecute Dr. Nassar was based entirely on the report Ms; Moore produced in2014.

29 PE Vol. II, page 83.

3? PE Vol. II, page 90,and 109.

3? PE Vol. I. page 69-70.

32 PE Vol. II. page 108-9.

involvement whatsoever? in the investigation of Ms. Thomashow?s complaint against Nassar.33 This
appears to have been typical practice, that Dr. Simon had no involvement in any sexual assault or
harassment investigations. Ms. Moore testi?ed that she did not send a copy or a draft of her report
to Dr. Simon.34 She did not show to or discuss with Dr. Simon her notes from the investigation.35
She did not send to Dr: Simon the email that she sent to Ms. Russell about the investigation.? She
did not have any conversations with Dr. Simon about university policy on sexual harassament in
2014.37 There is no testimony or evidence to suggest that Ms. Moore communicated with Dr.
Simon in 2014 regarding any allegations or investigation involving Dr. Nassar, or had any
knowledge of anyone else communicating this information to Dr. Simon.

During a phone call, Ms. Russell asked Ms. Moore to send her the details of the allegations
so that she could contact the unit administrator and the MSU police department?8 On May 16, 2014
at 7:58 am, Ms. Russell sent an email to Dr. Simon stating, ?we have an incident involving a sports
medicine doc? because the university was in the middle of an OCR investigation.39 Ms. Russell
also contacted Dean Strampel regarding the allegations.40 Ms. Russell testi?ed that she had no
memory of telling Dr. Simon the substance of the investigation or anything else about Dr. Nassar
during the May 19th meeting.

The Court: Let?s -- you know, maybe I do you, do you remember bringing up the

issue of Dr. Nassar at that May 19th meeting?

Ms. Russell: I don?t remember bringing up the matter involving Larry
Nassar at that meeting.

The Court: Do you think you would have?

Ms. Russell: It?s possible; but again, I cannot recall stating to President Simon the
matter involving Larry Nassar at that meeting. I don?t have any notes that
Would cause me to trigger amemogy? of that. It was two thousand and, you
know, fourteen. I can?t remember.

In fact, this was Ms. Russell?s consistent statement in all of the interviews she underwent.

Q: You couldn?t remember anytime you were interviewed, speci?cally talking to
President Simon about Dr. Nassar; is that Correct?

 

3? PE Vol. II. page 110.

a? PE Vol. II. page 109-10. She could not remember if her supervisor. Ms. Rassell. received a copy. PE Vol. II, page
110.

35 PE Vol. II, page 114.

3? PE Vol. II, page 115.

37 PE Vol. II, page 119.

3? PE Vol. page 119.

39 PE Vol. page 122.

4? PE Vol. page 124.

4? PE Vol. page 216?.

10

42

A: Yes.

Q: And you told them repeatedly, repeatedly that you had no recollection at all of
ever speci?cally discussing Larry Nassar with President Simon during your meeting
on May 19; is that correct?

A: Yes.43

Ms. Russell testi?ed that it was unusual for Dr. Simon to know speci?cs about any Title IX
investigation.44 There is no evidence that Ms. Russell provided Dr. Simon with a 'copy of the report
or had any knowledge of Dr. Simon receiving a copy of the report. In fact, even Ms. Russell, the
supervisor for the of?ce responsible for producing the report, did not receive the ?nal OCR report
on the Dr. Nassar investigation in 2014.45 There were no emails between Ms. Russell and Dr.
Simon that included Dr. Nassar?s name.46 Ms. Russell, as the Title IX coordinator and Ms. Moore?s
supervisor, had no knowledge of Dr. Simon being involved in the investigation of Dr. Nassar in
2014.47 Ms. Russell, the only person the People claim directly communicated with Dr. Simon about
the allegations against Dr. Nassar in 2014,48 does not remember providing Dr. Simon with any
details of the complaint.?

Q: You don?t have any recollection providing Ms. Simon with the details of Ms.
Thomashow?s complaint that was set forth in the email Kristine Moore sent to you
on Friday, Mayl 6th; is that correct?

St]

A: That?s correct.

Ms. Russell testi?ed that it was very possible, even likely, that she did not speci?cally discuss Dr.
Nassar during the May 19, 2014 meeting -- the meeting the People assert provides proof that Dr.

 

?2 PE Vol. IV. page 14.

?3 PE Vol. IV, page 56.

44 PE Vol. IV. page 8.

?5 PE Vol. IV. page Vol. IV. page 18-22. In fact. there were no emails in discovery between Dr. Simon and anyone else that included
Dr. Nassar?s name or the substance of the allegations against him in 2014.

PE Vol. IV. page 36. have no recollection. nor do I believe I asked Dr. Simon to be involved in that case."

When asked. ?[W]ho are you claiming. based on the evidence. told Dr. Simon in 2014 about a complaint specifically
against Larry Nassar by name?" Detective Arndt answered. believe Granberry had a conversation
with Dr. Simon." Asked. "Anybody else?" he said. PE Vol. V. page 189.

?9 Not only was that her testimony at the Preliminary Examination. that was also her statement during interviews with the
police. PE Vol. V. pages 180-181. l?v'ls. Russell said in her June 2018 interview. you know. the assumption is that I
had some detailed conversation with the president about Larry Nassar. The best I can recall. if there was a
conversation, it would have happened at this time." PE Vol. VI, pages 82-83

5? PE Vol. IV. page 36-37.

11

Simon knew about Dr. Nassar and the allegations against him in 2014.51 Likewise, Ms. Russell had
no knowledge of anyone else discussing the allegations with Dr. Simon in 2014.52

No one else testi?ed that they had discussed Dr. Nassar or the substance of the allegations
against him with Dr. Simon in 2014. No documents were provided to suggest as much. Instead, the
People presented witnesses who testi?ed that Dr. Simon was knowledgeable about what happened
at MSU and that she had a good memory. When Detective Amdt was asked, ?[H]as anybody,
including Paulette Granberry Russell, ever said that you?re aware of, speci?cally recall discussing
Larry Nassar with Lou-Anna Simon in he answered, ?No.?53

The People asked the district court, and by extension ask this Court, to ?nd that, on the basis
of the testimony and documentary evidence provided, there is probable cause to believe that Dr.
Simon:

A. Knew in 2014 that Dr. Nassar speci?cally (not just a sports medicine doctor) was being
investigated, and 

B. Knew in 2014 the ?nature? of that investigation (although what constituted the ?nature? that
she was to have known -4 the fact that it was a sexual assault, the name of the accuser, a
summary of the allegations, the details of the allegations, who was interviewed as part of the
investigation is not clear).54

However, the testimony and documentary evidence show instead that no one remembers
communicating with Dr. Simon about Dr. Nassar in 2014. Not one person was able to testify that in
2014 they communicated with Dr. Simon or remembered having knowledge of someone else
communicating with Dr. Simon about Dr. Nassar or the nature of the complaint against him. The
police and attorney general interviewed hundreds of people and searched through thousands of
pages of documents.55 One can speculate that Ms. Russell might have said his name and might have

told Dr. Simon everything she knew about Dr. Nassar at their May 19, 2014 meeting. And perhaps

 

5? PE Vol. IV. page 5'1.

52 PE Vol. IV. page 88. When asked. "And to your knowledge. do you know if President Simon talked to anybody else
but you. or received any communication about this complaint. other than what you sent her?" Ms. Russell responded, 
have the complaint. the email that was sent to her from me; have no knowledge of anyone else having discussion with
her. whether in general or his name."

5" PE Vol. V. page 188.
5? It is clear from the detectives' questions at the interview in 2018 and from the detectives' testimony that they already

knew that the ?sports medicine doctor" was Dr. Nassar and that the OIE investigation was one involving a sexual assault.
and it is also clear that Dr. Simon knew that and was not hiding it at her interview.
55 PE Vol. VI. page 57.

12

she should have. However, Ms. Russell testi?ed that it is very possible, even likely, that she did not
discuss Dr. Nassar with Dr. Simon.56

The People ask this Court to speculate - with no evidentiary support - that at that one
meeting out of the thousands of meetings Dr. Simon attended each year, on that one topic, 
out of several topics addressed at that one meeting in 2014, Ms. Russell told Dr. Simon Dr. Nassar?s
name and the ?nature? of the allegations against him. Even if this Court gave some credence to that
argument, there is simply no evidence that Dr. Simon remembered knowing in 2014 either his name
or the substance of the investigation when she was interviewed in 2018. The fact that her
statements before or after the interview are consistent with the statements she made in the interview
do not serve as evidence that she was lying. Instead, the consistency of those statements suggests
that she had no independent memory of any conversation regarding Dr. 'Nassar and relied on what
documentary evidence she could find of her previous knowledge - the email from Ms. Russell
referring to a sports medicine doctor - when trying to reconstruct events more than a year after the
fact when everything came to light in 2016. A ?person of ordinary prudence and caution? would
not ?conscientiously entertain a reasonable belief? that Dr. Simon knew in 2014 Dr. Nassar?s name
and certainly not that she knew [any more about the investigation than what she told the detectives or
was willing to tell but wasn?t asked. People v. Yosl, 468 Mich. 122, 126, 659 604 (2003).
at 126 (quoting People v. Justice (After Remand), 454 Mich. 334, 334, 562 652 (1997)). In
addition, an equally prudent, cautious person would not conscientiously entertain a reasonable
belief that, even if she did know in 2014, Dr. Simon remembered kno'wing in 2018 at the time of her
interview. .

B. A Willfully False er Misleading Statement

The burden is On the People to prove not only that Dr. Simon knew in 2014 Dr. Nassar?s
name and the ?nature? or ?substance? of the complaint against him, that she remembered in 2018
during her interview what she knew in 2014, that her knowledge of those two facts was material in
that investigation, that she knew her knowledge in 2014 was material in that investigation, but also
that her failure to communicate that knowledge to the detectives during the 2018 interview was

willful with intent to deceive and not by any mistake.

 

56 PE Vol. VI, page 51.

13

As noted repeatedly above, the detectives did not ask for any additional information even
though they knew from Dr. Simon?s own statement that she both knew there was a complaint
against a sports medicine doctor and that a staff member provided her with this information. As
noted above, Detective Arndt acknowledged that the Attorney General?s of?ce asked the detectives
to gather additional information about who provided this information to Dr. Simon, when, and in
what form (email, phone call, etc.). Detective Cavanaugh acknowledged this mistake:

Q: So, my question for you, Lieutenant, is if this information was so critical to how
you proceeded with your investigation, and if this information was important to you,
why wouldn?t you ask her, Lieutenant, if you really wanted to know, who told her?
?Who told you, Dr. Simon, that a sports medicine doCtor was under review in 2014?
Did they tell you in writing? Verbally? Did you ask any follow up questions?? . Why
wouldn?t you ask these types of questions if it was important for you to know this
stuff?

A: There were lots of questions that we had. Unfortunately, the follow up question
which was never asked as to who this person, who this staff person was, was
unfortunately missed by myself and Detective Sergeant Arndt.

Okay. So you would agree with me that that was a miss, or a mistake by you and

Arnd?g' correct?
A: Sure.

Just as the detectives made a mistake, there is no reason to cenclude beyond pure speculation that
Dr. Simon?s omission - if it was an omission - was willful.

The detectives had the benefit of a team of both experienced detectives and attorneys, all of
whom knew precisely what information they were looking for, and a resultant written list of
questions to ask that they were free to take with them and may have taken with them into the
interview: The detectives knew they?wanted the information and made the mistake of not asking for
it.

The facts of this case are strikingly different as compared to the facts of People v. Williams,
318 Mich.App. 232, 899 53 (2016). In that case, the defendant was contacted by police
?[s]hortly after Williams reported his girlfriend?s death.? Williams, at 235.? The of?cer in
Williams interviewed the defendant with regards to this one event - his girlfriend?s death -
?throughout the course of 8 to 10 at 235. In Williams, two officers ?went over the

time line ?several times,? but the defendant never noted going to the victim?s apartment complex

 

5? Vol. v1, pages 112-113.

14

that night. M. In addition, the defendant speci?cally identi?ed ?just? two people with him during
the night. 1d. Another witness told the police that they saw the car that Williams was in at the
victim?s apartment complex the night of the murder. 1d. When confronted with that information,
the defendant admitted that a third person had been with him and that he had been at the apartment
complex that night. E. at 235-236.

With so little time between the events and the interview, with the of?cer rehashing his
timeline several times over the course of 8 to 10 hours, an independent witness, and the defendant?s
later admission that he did in fact remember being at the apartment complex with a third person, a
careful and reasonable person would have probable cause to believe the Williams defendant
willfully mislead the of?cer regarding his whereabouts the night of the murder and with regard to
who was with him that night. In contrast, Dr. Simon?s interview was four years a?er the May 19,
2014 meeting. The 2014 meeting was one in thousands of meetings, and the topic allegedly
discussed at that meeting was one of several. Dr. Simon only had one interview during which the
of?cers asked a wide range of questions, ?generally investigating Michigan State 
covering topics as broad as the inner workings of the university, Dr. Nassar, Twistars, and Dean
Strampel.58 She was only asked for the information once, answered the questions she was asked,
and was not asked for additional information or asked to clarify what she meant. The portion of the
conversation between Dr. Simon and the detectives that forms the basis of these four charges took
less than ?ve minutes.59 Dr. Simon has not admitted to knowing more than she said she knew in her
interview and there is not even one witness, out of hundreds interviewed, who can say they
remember that Dr. Simon was told anything more than what she said she knew in her interview.
There is no evidence that she made any prior or subsequent inconsistent statements.60 Under these
circumstances, a careful and reasonable person would not have probable 'cause to believe Dr. Simon

willfully mislead the of?cers.

 

5" May 1. 2013 interview of Dr. Simon. page 81. PE Vol. V. page 7'7.

5? May 1. 2013 interview of Dr. Simon. pages 23-25. Detective?s first question on the subject. ?So I mean specifically to
Nasser. were you aware of any prior investigation, you know, before the story broke in the news. were you aware of any
prior investigation with Larry Nasser or. you know. misconduct for that matter, anything?? just before the 23:09 minute
marker. Just before Detective Cavanaugh noted, "Let?s jump ahead to the 2016 the minute marker was at
31 :35.

3? The prosecutor does claim the fact that she made prior and subsequent consistent statements somehow proves she

was lying.

15

C. Conclusion

The district court abused its discretion in ?nding probable cause to believe Dr. Simon
knowingly and willfully made false or misleading statements.61 Therefore, its decision on this issue
is reversed.

VI. PROBABLE CAUSE TO BELIEVE AS TO COUNTS I AND ITI THAT
PURPORTED KNO LEDGE DR. 

2014 WAS A MATERIAL FACT IN THE INVESTIGATION AT ISSUE
HERE

   

The Legislature could have omitted the phrase requiring a ?material fact? in MCL 750.4790,
as it did for criminal liability for perjury. See People v. Lively, 470 Mich. 248, 253-254, 680
878 (2004). It did not, so any false or misleading statement made by Dr. Simon must be
material for criminal liability to attach. material fact is fact that is signi?cant or essential to
the issue or matter at hand.?? People v. Kati, 468 Mich. 272, 292, 662 12 (2003)(quoting

Black's Law Dictionary (7th ?Statements that omit material information may qualify as false

 

or mislead[ing] an investigating of?cer.? Williams, 318 Mich. App. 232, 238, 899
53 (2016)(emphasis added).62
According to Detective Cavanaugh, the of?cers in this case were investigating accessory

after the fact, obstruction of justice, aiding and abetting, misconduct by a public of?cial, and ?things

 

5? in its opinion and order. the district court wrote that after Ms. Moore learned of the allegations from Ms. Thomashow on
May 15. 2014: ?Moore was 'shocited.? This must have come from-Ms. Thomashow's testimony. see supra note 16. Ms.
Moore did not testify that she was shocked. although the district court apparently believed she did. See District Court
Opinion and Order. page 5 (?The allegations. the 'nature of the complaint' are extraordinary. are 'shocking? as Moore
The district court went on: "Shortly thereafter. at about 9:00 she called her supervisor. Paulette
Gransberry Russell to inform her. Before 8:00 am. the next day. Russell had emailed the defendant a terse message
about the incident. The next business day. evidence suggests that this was a topic of conversation in a meeting between
Simon and Russell." District Court Opinion and Order. page 4. What the district court leaves out is that the meeting was
a regularly scheduled meeting between Ms. Russell and Dr. Simon, not one scheduled specifically to address the
allegations against Dr. Nasser. Several topics were on the agenda. notjust Perhaps most importantly. Ms.
Russell testi?ed that it was very likely Dr. Simon and Ms. Russell did not discuss Dr. Nassar at that meeting. Dr. Simon
was not typically apprised of sexual assault cases. The district court went on: ?It is not credible to believe that Simon
would have heard even the outline of Thomashow's story and forgotten it." What the district court missed was that there
was no evidence presented that clari?ed what exactly Ms. Russell told Dr. Simon about Dr. Nassar. if anything. There is
absolutely no evidence -- not on a folder. not in an email. nor from any testimony -- from which the court can infer rather
than merely speculate that Ms. Russell provided Dr. Simon with an outline ofrthe allegations. Finally. the district court
rested her ?nding on this point on arguably inadmissible character evidence that Dr. Simon was "very responsible and
dedicated abdut her work at She paid attention to detail." and therefore "[?orgetting about the Thomashow
allegations against Larry Nassar does not match that description.?

62 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. The plain meaning of a ?misleading statement? surely encompasses
statements that leave out key details." at 240.

16

like the .5?63 In order for the district court to bind over Counts I and the People were required to
provide evidence suf?cient to create probable cause to believe it was a material fact that Dr. Simon
knew in 2014 the name of the sports medicine doctor who was under investigation. For clarity, the
question and answer at issue here are as follows:

?So I mean speci?cally to Nassar, were you aware of any prior investigation, you know,
before the story broke in the news, were you aware of any prior investigation with Larry
Nassar or, you know, misconduct for that matter, anything??

Dr. Simon responded in part as it relates to Counts I and was aware that in 2014 there was a
sports medicine doc who was subject to a review.?65 Although Dr. Simon does not speci?cally state
that she did not know Dr. Nassar?s name, the form of her response can fairly be interpreted to
indicate that she did not know his name or at least did not remember knowing his name in
connection with the investigation. If she did remember knowing that Dr. Nassar was the referred-to
sports medicine doc, one would expect her to say instead, for example, was aware that in 2014 he
was subject to a review.?66

'According to Detective Cavanaugh?s testimony, if Dr. Simon told detectives she knew about
an investigation regarding Larry Nassar in 2014 (rather than that she knew about an investigation
regarding a sports medicine doctor, who the detectives clearly knew was Larry Nassar):

A: It would have, it would have given us some idea of where to take our
investigation. It would have given us an idea of, of -- well, I guess, who we needed
to target, additional people to talk to. We, we would have conducted search warrants
on email accounts, cell phones, you know, records. Potentially, yes, it very much
would have changed our, our investigative anglef?7

 

53 PE Vol. VI. page 52?53. There is no evidence Dr. Simon was told the officers were investigating these crimes.

6? Transcript of the May 1. 2018 interview of Dr. Simon, page 23.

6? Transcript of the May 1. 2018 interview of Dr. Simon. page 23. This statement of Dr. Simon is the basis of counts and
Dr. Simon was not able to ?nish her sentence because Detective Arndt interrupted her to say, think that?s going to
boil right into our next question." 

66 On the other hand. if it was important to know whether or not Dr. Simon knew Dr. Nassar's name. experienced and
well-trained detectives could be expected to ask a clarifying question such as. "Am I correct in understanding that you
only knew that there was a sports medicine doctor. and that you did not know that doctor under review was named Larry
Nassar?" .

?7 PE Vol. VI. page 56-57. Almost every other question the prosecution asked Detective Cavanaugh was a leading
question. When Detective Arndt was asked: 

Based on what the defendant told you. how did your investigation proceed?"
He responded:
You know, we continued with the investigation with interviews. we did a search warrant at MSU to

produce documents. we interviewed Ms. Russell and others at the time. so. We were early on in, into
the investigation when we interviewed Ms. Simon. l?m sorry. Dr. Simon."
PE Vol. V, page 93.

17

Detective Arndt?s reSponse to a similar question was:

A: We would have been able to pinpoint the time line to one, for her interview, but
for others; more speci?cally, pinpoint that time line and the search warrants that we
did were broad, and there were I don?t even know how many -- hundreds of
thousands of documents we would have, we went through or the attorney general
went through. We could have pinpointed time lines, agendas, calendars. That
information would have been, would have been useful to us as investigators so we
didn?t have to go through hundreds of thousands of documents, we could haVe
obtained a calendar appointment for a speci?c day or conducted a search warrant for
a speci?c day or person regarding a speci?c time line.68

However, there?s absolutely no explanation for how, if Dr. Simon had said, was aware
that in 2014 he was subject to a review? instead of, was aware that in 2014 there was a sports
medicine doc who was subject to a review,? that would have led to ?time lines, agendas, or
calendars.? There is no testimony explaining how this slight change in her statement would lead
them to target 0r talk to different people. And, likewise, whether or not Dr. Simon knew Dr.
Nassar?s name in 2014, the detectives were free to ask follow up questions that might have led them
to time lines, agendas, calendars, and people?s names. For instance, knowing that she knew there
was a sports medicine doctor under investigation, they could reasonably be expected to ask who
told her, when, speci?cally, she became aware of that review, and how she learned of it (in a
meeting, in email, etc.). Being told to ask those questions before they went to the interview and
having those questions in writing did not prompt the detectives to ask for more information. There
is no reasonable inference that can be made to suggest that changing the words ?there was a sports
medicine doctor?. to ?he? would have prompted them to ask the necessary questions to get the
information they now claim they could not get because Dr. Simon mislead thern.

In addition, whether or not Dr. Simon knew Dr. NasSar?s name does not make a crime of
aiding and abetting more or less likely on her part or on the part of anyone else. If Dr. Simon (or
anyone else) covered up one or more of Dr. Nassar?s criminal acts and knowingly allowed him to
continue committing crimes without interfering, but she didn?t know his name, she would still be
criminally liable. Likewise, if she did know his name but she (or anyone else) did not cover up one
or more of Dr. Nassar?s criminal acts, she would not be criminally liable. Dr. Simon? 5 knowledge
of Dr. Nassar?s name in 2014 is not a fact that is signi?cant or essential to the issues the detectives

were investigating, and therefore was not a material fact.

 

5" PE Vol. V. page 105.

18

The district court abused its discretion in ?nding otherwise.69 Therefore, its decision on this

issue is reversed.

VII. PROBABLE CAUSE TO BELIEVE AS TO COUNTS AND IV THAT
PURPORTED KNOWLEDGE IN 2014 OF THE NATURE
AND SUBSTANCE OF AN INVESTIGATION OF DR. NASSAR WAS A
MATERIAL FACT IN THE INVESTIGATION AT ISSUE HERE

For the district court to bind over Counts II and IV, the People were required to provide
evidence sufficient to create probable cause to believe it was a material fact that Dr. Simon knew
the ?nature and substance? of the investigation into the allegations against Dr. Nassar. For clarity,
Dr. Simon?s answer at issue here is this:

?i was not aware of the substance of that review, the nature of the complaint, that was all
learned in ?16 after it became clear in the newspaper regarding the 

The detective interrupted Dr. Simon, saying, think that?s going to boil right into our next
question.? Detective Cavanaugh asked:

?Well, how did you" become aware of it in 2014? Is that something that?s part of a
brie?ng or 

Dr. Simon responded:

was told by one of the staff members that there was a sports medicine -- physician who
was going throu OIE, none of the substance. And I don?t involve myself in OIE
investigations.? -

refers to the Of?ce of Institutional Equity. OIE investigates complaints of
discrimination, harassment, sexual misconduct, relationship violence, and stalking. Detective Arndt
acknowledged that ?when Dr. Simon said the physician who was under review was going through

OIE [he] assumed that it likely involved something of a sexual nature is what she was 

 

E??ln its opinion and order, the district court wrote with regard to materiality: "Dr. Simon's lack of acknowledgement of any
specific knowledge of Nassar's system of treating young athletes along with her credibility as the long?term president of
Michigan State University appears to have resulted in an investigation that was like looking for a needle in a haystack
instead of having focus on a limited number of persons and communications." District Court Opinion and Order, page 5.
There is simply no evidence, no basis even for speculation, that Dr. Simon had "any specific knowledge of Nassar's
system of treating young At most the prosecution attempted to provide sufficient evidence to create probable
cause to believe that Dr. Simon knew Dr. Nassar?s name and the substance of one person's allegations against him.
The district court's opinion in this regard is clearly erroneous. Even if the proper standard was to view the evidence in
the light most favorable to the prosecution, this section of the district courts opinion with regard to materiality would be
an abuse of discretion.

7? Transcript of the May 1, 2018 interview of Dr. Simon, page 23. This statement of Dr. Simon is the basis of counts and
Ill.

7? Transcript of the May 1. 2018 interview of Dr. Simon. page 24.

72 PE Vol. V, pages 208.

19

By the ?substance of that review? and ?nature of the complaint,? Dr. Simon could have
meant she was not provided any of the speci?cs of the allegations even though she knew it involved
a complaint of a sexual nature. Or maybe she meant that she didn?t know anything except the
victim?s name. The evidence does not show exactly what she meant.73 And this statement, as noted
above, does not contradict what this Court understands the People have attempted to prove Dr.
Simon knew -- that there was a doctor in the College of Medicine who was accused of
sexual assault -- based on the folder Ms. Russell might have had with her during their May
19, 2014 meeting and based on the agendas used during that meeting.

It is dif?cult to know if what Dr. Simon omitted from her statement (if anything) was
relevant to the investigation when we don?t know what was supposed to have been omitted. Even
Detective Arndt, the People?s complaining witness, acknowledged he didn?t know what Dr. Simon
meant by the ?substance? of the review or the ?nature? of the complaint.74 We don?t know that,
because the detectives didn?t ask any clarifying questions.75 If they had asked what exactly she did
know - did she know the victim was a patient, did she know it was allegations arising out of an

exam, and so on - this Court would be better able to ascertain exactly what Dr. Simon was claiming

 

73 The district court wrote in its opinion. ?It is not credible that Simon would have heard even the outline of Thomashow's
story and forgotten it." District Court Opinion and Order. page 4. However. no one testi?ed that Dr. Simon ever heard an
outline of Thomashow's story. Although Ms. Russell didn't remember ever telling Dr. Simon anything about the
allegations against Dr. Nassar. even if she did and forgot or she did and lied. the testimony doesn't provide any clarity as
to what she told Dr. Simon. If she mentioned Dr. Nassar's name. she may have told Dr. Simon that a patient made
allegations of a sexual nature against Dr. Nasser. a much more forgettable statement than one including the details of
the allegations. There simply were not facts suf?cient to make any finding with respect to what Dr. Simon knew in 2014
about Dr. Nassar. In addition. the district court found that "Dr. Simon's lack of acknowledgement of any specific .
knowledge of Nassai's system of treating young athletes along with her credibility as the long-term president of Michigan
State University appears to have resulted in an investigation that was like looking for a needle in a haystack instead of
having focus on a limited number of persons and communications." District Court Opinion and Order. page 5. However.
there is simply no evidence. nor does the prosecution allege or argue. that Dr. Simon knew anything about "Nassar's
system of treating young athletes" prior to 2016.

7? PE Vol. V. page 206-207.

?5 Detective Arndt sugested that they asked no follow up questions because ?we didn?t have those documents that we
believed where she was lying." PE Vol. V. page 200. This is contrary to logic. Dr. Simon told them that a staff person
told her about the sports medicine doctor and the complaint. The court cannot speculate why the detectives would need
to believe Dr. Simon was lying in order to ask who the staff person was. when the staff person told Dr. Simon about the
complaint. how much the staff person told her. or if the staff person told her in a meeting. on the phone. or via email. if
the detectives honestly needed that information for their investigation. they would have asked. Detective Cavanaugh
confirmed that. if the omitted information was that the allegations were with regards to a sexual assault. don't know why
- that question would help or change any of the investigation." in fact. Dr. Simon had previously stated to the media that
she was informed a sports medicine doctor was under investigation. the detectives and attorney general knew about that
statement. and on that basis directed the detectives to ask follow up questions. When identifying those follow up
questions. the detectives and attorney general attorneys also did not have the email. agenda. or calendar items -- still
they were able to conceive of reasonable follow up questions such as ?Who told you that? When?I Did you ask for
additional information? Why didn't you inquire about thename of the sports medicine doctor who was the subject of the
Title IX investigation?" PE Vol. V. page 203. 

20

to know or not know and then determine if that knowledge or lack thereof was material to the
investigation.
Dr. Simon?s attorney tried to obtain from Detective Arndt a clear explanation for how this

information was material. He asked:

Q: Arid if Dr. Simon had said during her interview on May 1, 2018, knew that this
complaint against this sports medicine doctor was for sexual assault?, if she had told
you that during her interview in 2018, how would that have exposed her to criminal
liability? 

Detective Arndt answered:

A: My belief is that had she told us, basically she lied during the well, I believse
that she lied during our interview. Ithink she did know about Larry Nassar.

Even if she told the detectives that she did know it was a doctor in the College of Medicine
who was facing allegations of sexual assault, it is not at all clear how that would have furthered
their investigation. The detectives already knew the nature of the allegations. Given that the
detectives forgot or opted not to ask questions the Attorney General had already told them were
important to ask, there is no reason to believe this additional informatibn would have furthered their
investigation at all. Dr. Simon?s knowledge in 2014 that Dr. Nassar had been accused of a sexual
assault is not a fact that is Significant or essential to the issues the detectives were investigating, and
therefore was not a material fact.7-7 The district court abused its discretion in ?nding otherwise.78

TherefOre, its decision on this issue is reversed.

 

7? PE Vol V.. page 237. Detective Arndl's answer clearly is not responsive to the question. Dr. Simon's attorney. Mr.
Silver. attempted unsuccessfully to get assistance from the court to get a direct answer to the question.

77 Mr. Teter. attorney for the People. argued: ?So assuming Mr. Silver's scenario, and that is that Ms. Simon knew it was
Nassar in 2014. knew that it was a sexual assault allegation. which we believe she did. and then took no action; so we
have potential misconduct in office. we have potential accessory after the fact to a felony. not determined by IE, but
determined by a prosecutor's office and whether or not her actions helped him not, you know. avoid detection and
therefore prosecution. Or the potential for leaving him in place to access literally another hundred victims is possible
aiding and abetting." This argument is not logical. The allegations were investigated. More than one doctor said that
what Ms. Themashow said happened was medically reasonable and not evidence of a sexual assault. The universitys
legal counsel reviewed the report and approved it. The OIE report was given to the police who forwarded the complaint
to prosecutors with a charging recommendation. Prosecutors had far more information than what the People claim Dr.
Simon had and took no action. The People are not claiming that Dr. Simon ever had or read the OIE report. There is no
evidence prosecutors made any attempt to advise the university to take any action. either. Even if Dr. Simon knew Dr.
Nassar?s name and the same summary of the allegations that Ms. Russell received in the email from Ms. Moore. there's
no reason to believe that knowledge would make her or anyone else criminally liable under any theory advanced by Mr.
Teter.

7? See supra note 68.

21

 KNOWLEDGE BY THE DEFENDANT OF THE MATERIALITY A
STATEMENT A NECESSARY COMPONENT FOR CRIMINAL LIABILITY

The People point out that the speci?c crime may not in fact be known at the time the
of?cer contacts a defendant and therefore the of?cer is not required to notify the interviewee of the
specific crime being investigated in order for MCL 750.479c to apply. However, the Legislature
chose not to criminalize all false or misleading statements made to peace of?cers under MCL
750.479c. Setting aside constitutional complications,79 the Legislature could have chosen to leave
off the words, ?in that investigation,? thereby requiring people to tell the truth in all matters any
time they are speaking to a peace of?cer whom they know is investigating any crime, even if they
don?t know what crime is being investigated. This court will not unnecessarily make nugatory this
intentionally placed statutory language.

Detective Arndt?s understanding was that Dr. Simon was interviewed:

[I]n relation to the misconduct and, involving Larry Nassar and the CSC, the aiding and
abetting of the CSC. Larry Nassar had already been charged, convicted at that time and we
were there to ?gure out if anyone at the university, including Ms. Simon or, or those, you
know, other staff, were aware of those incidents or potentially covered them a p.

They also had ?spin-off? investigations underway, including with regard to Dean Strampel, ?sports
med, MSU sports med; Twistars at the time; and John Geddert.?81 Detective Cavanaugh?s
understanding of the investigation was:

Basically, a criminal sexual conduct charge where there was either accessory after the fact,
obstruction of ju?stice, you know, who knew what and when, any type of aiding and abetting.
Things like that. 

Nothing in the detectives? testimony indicates that Dr. Simon was told or knew these purposes of
the investigation or how her May 1, 2?018 interview related to that investigation except that the
detectives were ?investigating criminal investigation for 

The detectives asked a lot of questions about the workings of the university - who reported

to whom, who was responsible for what, and so on. Those questions were likely to give the

 

79 As the defense notes, such a broadly worded or interpreted statute would inevitably face constitutional challenges.

3? PE Vol. V. pages 79-80. However, Dr. Simon was not told the detectives were investigating a 080 or a cover up.

3? PE Vol. V. page 80.

?2 PE Vol. VI. page 52. Detective Cavanaugh also noted. "We were trying to determine it. whether it was employees,
doctors, administration; if, if someone had knowledge andtor covered up acts that Larry Nassar had committed, and, and
the I guess to your question, the aiding and abetting question is, is it, if they. if they. being the administration or bosses.
doctors left Larry Nassar in place to continue to do what he did. we would have considered that potential aiding and
abetting."

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impression that Dr. Simon was being interviewed for a basic understanding of how the university
functioned. In fact, the detectives speci?cally told her:

We have found that your guys? world at MSU, and Brian?s heard this, every time we talk to
someone we learn something absolutely new. We?ve obviously talked to human resources,
we?ve talked to the provost. Theworld of college -- the college dynamic, if you will, is 
it?s very hard for someone like us as outsiders to come in and comprehend -- positions and
roles and responsibilies. So as, I guess, to continue off and I didn?t mean to interrupt you,
but as president can you tell us about some of your roles and responsibilities at the
university? 

If Dr. Simon knew the detectives were investigating any crime narrower than ?anything
criminal that might happen at she knew at the time of the interview it was somehow related
to Dr. Nassar and Dean Strampel. The detectives told her:

So today besides some of your roles and responsibilities there are two subject areas we
would like to talk about today and I don?t think it will come as any surprise. We would like
to talk a little bit -- not a little bit, we?d like to talk about Larry Nassar and some of the
history involved with Mr. Nassar. We would also like to talk about Dean Strampel. Kind
of somehow -- or how the two of those gentleman reldate and things like that. So that?s kind
of generally what we would like to talk about today. 

When asked about Dr. Nassar, Dr. Simon responded, was aware that in 2014 there was a
sports med doc who was the subject to a reView; but I was not aware of any of the substance of that
review, the nature of the complaint; that was all learned in 2016 after it became clear in the
newspaper regarding the and was told by one of the staff members that there was a sports
medicine physician who was going through OIE. None of the Substance, I don?t involve myself in
the OIE investigations.?85 The detectives then went on to ask about standard practice. They did not
ask her what she meant by ?the substance? of the investigation. We don?t know what she meant
because the detectives directed the questioning and conversation elsewhere and never brought it
back up, despite a speci?c request from the attorney general?s of?ce to ask. The detectives focused
on the general practices and processes - who received reports in Title IX investigations, whether or
net the ?ndings were con?dential - the same sorts of questions they used to begin the interview.
And then they asked questions about Dean Strampel.

From the preliminary examination transcripts there is no evidence that Dr. Simon knew the

information the People allege was missing from her statements was material to the detectives?

 

3? Transcript of the May 1. 2018 interview of Dr. Simon. page 6.
3? Transcript of the May 1. 2018 interview of Dr. Simon, page 5-6.
85 Transcript of the May 1. 2018 interview of Dr. Simon; pages 23-25.

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investigation. The fact that they didn?t ask who told her, how she was told (verbally, in an email,
when She received a copy of the report, etc.), the speci?cs of what she was told (the name of the
victim, a summary of the allegations, Who was interviewed as part of the investigation, etc.), or
when she was told would certainly imply to a reasonable person that the information was not
material. Any reasonable person in her position would assume, based on what they told her, they
were interested in how the university worked in general and in how Dr. Nassar and Dean Strampel
related ?and things like that,? because that?s what they told her they wanted to know. From Dr.
Simon?s perspective, or from the perspective of any reasonable person in her position, whether or
not she knew Dr. Nassar?s name and a summary of the allegations against him in 2014 didn?t have
anything to do with ?how the two of those gentleman relate? or how things worked at the university.
Even if she knew they were looking for information on aiding and abetting, she could safely assume
they didn?t want any additional information about her knowledge of the allegations because they
were directing the interview, and they didn?t ask any more about it not for specifics or clari?cation
or anything else.86

The prosecution did not provide evidence suf?cient to give a reasonable person probable
cause to believe that Dr. Simbn knew during her 2018 interview that her purported knowledge in
2014 of Dr. Nassar?s name and the ?nature? and ?substance? of the complaint against him in 2014
was material to the investigation that was ongoing in 2018. The disrict court?s decision to the

contrary is reversed.

IX. CONCLUSION

IT IS HEREBY ORDERED, for the reasons set forth in this Opinion and Order, that the
motion to quash the bindover from the district court as to all counts is GRANTED. This case is
DISMISSED in its entirety.

This Order resolves the last pending claim in this matter and closes the case.

MOW

((241 D. Maurer (P41845)
?ircuit Court Judge

 

3? This is different than the defendant in williams who was eel-ted repeatedly where he had been that night. People 
Williams, 318 Mich. App. 232. 899 53 [2016). He clearly knew the officer was investigating his girlfriend's murder
and clearly knew the of?cerwanted to know where he had been all night, but failed to tell the ofl'ioelr that he had been at
his girlfriend's apartment complex.

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