Nancy Gertner

An article by Nancy Gertner: Even with the coronavirus spreading in prisons, even though incarceration could be fatal and the crime rate during the pandemic has cratered, some officials will not listen to public health experts. In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy. In a second federal courtroom, another judge refused pretrial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.

Hull’s David Maglio says he began to feel ill on April 2, shortly after being transferred from a prison in Massachusetts to the Donald W. Wyatt Detention Facility. He put in sick slips, but his complaints went unanswered, he says...On April 21, Maglio, of Hull, became the first Wyatt detainee to test positive for COVID-19, the illness caused by the novel coronavirus. At the time, Maglio was one of three inmates tested for the potentially deadly virus out of about 580 being held at the quasi-public prison. Since then, seven others -- one a 43-year-old Mexican national in U.S. Customs and Enforcement custody -- have tested positive. So far, no staff been found to be positive for COVID-19...Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard Law School, was aghast by the prison’s treatment of Maglio. “Taking care of business now is like closing the barn door after the horses escaped,” Gertner said Monday. “Eight inmates is an outbreak. ... It’s clear they didn’t do the things they needed to do before an outbreak.” Prisons face the unique challenges of confronting the virus while housing a vulnerable population with acute health risks who cannot socially distance with medical care that is often not up to snuff, she said. An additional obstacle is that inmates may be reluctant to report symptoms due to the punitive nature of isolation; there must be incentives, she said. She urged that reducing Wyatt’s numbers is the only way to ensure that detainees can socially distance, as has been seen at prisons elsewhere. Wyatt is now at 75% capacity.

Around the country, protesters have started pushing back against stay-at-home orders and advisories, calling for a reopening of normal business operations. On Saturday, hundreds of people reportedly assembled outside the New Hampshire statehouse to protest Gov. Sununu's handling of the coronavirus crisis. We'll hear from a protester and talk about the intersection between our civil liberties and public safety with WBUR's legal analyst and retired federal judge Nancy Gertner. Plus, we'll get perspective from Dr. Shira Doron, an infectious disease physician and hospital epidemiologist at Tufts Medical Center, who will explain why our leaders have turned to such extreme measures in combating the coronavirus.

The federal judge overseeing the criminal case against Roger J. Stone Jr. refused on Thursday to grant him a new trial, rejecting the defense’s argument of juror misconduct that President Trump has also repeatedly trumpeted. Judge Amy Berman Jackson of the United States District Court in Washington ordered Mr. Stone to surrender to the federal Bureau of Prisons as soon as he is notified to do so. She also released him and his lawyers from a gag order she imposed months ago. The judge’s decision appears to end one of the most politically fraught federal criminal cases in recent years. In a last-ditch effort to keep their client out of prison, Mr. Stone’s lawyers had claimed that the jury forewoman had improperly concealed a bias against Mr. Stone, justifying a new trial...Prosecutors argued that the defense motion for a new trial was “nothing more than an attempt to fuel its public campaign to undermine the jury’s verdict through a frivolous juror misconduct claim.” Nonetheless, in an unusual move, Judge Jackson held a four-hour hearing on the motion, summoning a dozen jurors back to the courtroom in February, three months after they had rendered a verdict. Nancy Gertner, a retired federal judge who now teaches at Harvard Law School, said she believed the judge was being especially careful because the case had been so high-profile, not because the president was “breathing down her neck.” “I would have done what she did,” she said.

It's clearly not time now, but a big question on everyone's minds, including the President Donald Trump's, is how and when the country reopens. President Trump claimed Monday night he has "total authority" over the decision, but two groups of state governors, including a seven-state coalition with Massachusetts, say they'll make that call. We discuss with WBUR Senior Political Reporter Anthony Brooks and WBUR Legal Analyst Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

Here's the Radio Boston rundown for April 14. Tiziana Dearing is our host. President Donald Trump says he has the authority re-open the country for business. But Gov. Charlie Baker has joined the east coast states making their own plan. WBUR's Anthony Brooks and WBUR legal analyst Nancy Gertner break down the tension. We take listener calls and speak with people who are struggling to care for people at home during the coronavirus pandemic and what support they need most.

To prevent the spread of the deadly coronavirus that’s killed more than 20,000 Americans, at least 316 million people across the country have been urged — and in some cases, ordered — to stay home. While most have voluntarily complied in an effort to protect themselves and others from COVID-19, scofflaws put police in a pickle: How do you enforce public health directives at a time when jails and prisons incubate the very disease you’re trying to suppress? “There’s the dilemma — you don’t want to put anyone in prison,” said Judge Nancy Gertner, a professor at Harvard Law School. “Detention facilities are petri dishes. You send someone to jail, it could be a death sentence.” Jail as capital punishment is no hyperbole: Cook County Jail in Illinois is the hardest-hit per-capita COVID-19 site in the country, with more than 350 cases and at least two inmate deaths. Rikers Island in New York City has had over 700 cases between inmates, staff and health care workers, including seven jail employee deaths and two inmate deaths.

Debate over efforts to head off a disastrous coronavirus outbreak inside Massachusetts prisons and jails intensified Tuesday, as several attorneys for and against the wide release of inmates presented arguments in a four-hour telephone hearing, the first in the history of the state’s supreme court. With the rate of coronavirus infection rising, and most of the state relegated to working in isolation, justices and attorneys appeared via phone to debate a petition, filed last week, for inmates’ release. The coalition, which includes the Committee for Public Counsel Services (CPCS), the American Civil Liberties Union of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers, says that crowded and unsanitary conditions make COVID-19 “virtually impossible” to stop in prisons and county jails...To some observers, keeping people in cramped, possibly unsanitary conditions could amount to a death sentence. “These people were sentenced, but not sentenced to death,” a retired federal judge, Nancy Gertner, said in an interview. “This is a tragedy in the making.” So far, the department’s efforts to prevent a wide outbreak of the virus have mostly worked. Only 17 of the estimated 8,000 inmates in state custody have turned up infected with the virus, all of them housed at the Massachusetts Treatment Center in Bridgewater. Five Department of Correction staff have tested positive.

An article by Nancy Gertner and John Reinstein: Prisons are Petri dishes for disease in the best of times, but they could become incubators for COVID-19 now. Prisoners sleep, eat, and shower in enclosed quarters with limited ventilation. Social distancing is impossible. Prison populations also have greater rates of serious health problems than the general population. Many are elderly, and have diabetes, cardiovascular disease, asthma, and cancer, conditions that, if they become infected with COVID-19, make them more likely to require intensive care and especially vulnerable to dying of the disease. On Saturday, officials announced the first case of COVID-19 at the Massachusetts Treatment Center in Bridgewater. An inmate serving a life sentence and his roommate have been quarantined from each other and the rest of the inmate population. We don’t have to speculate about what will happen as the disease hits the general prison system. We have seen it.

A letter to the editor by Nancy Gertner: The Globe’s Feb. 19 editorial called on the government to appeal Judge Leo Sorokin’s 90-page decisionthrowing out the convictions of Kenneth Brissette and Timothy Sullivan on extortion-related charges(“Stopping corruption is everyone’s business”). Why? “When 12 jurors find that they know public corruption when they see it, their findings ought to count for something.” This glib comment ignores the facts of the case, Sorokin’s extensive findings, and most important, the law. Surely the jury’s findings “ought to count for something,” but not when government lawyers, as Sorokin expressly found, misstated the law, urged the jury to convict on a theory that the court had ruled out, and presented a closing argument “saturated with mischaracterizations of the evidence.” Certainly the jury’s findings should “count for something,” but the standard — that jurors “know corruption when they see it” — could not be more off the mark.

An op-ed by Nancy Gertner: When Department of Justice prosecutors told the judge in Roger Stone’s case that their sentencing recommendation — consistent with the Federal Sentencing Guidelines — was seven to nine years following Stone’s November conviction on seven felonies related to obstruction, witness tampering, and lying and investigators, President Trump tweeted that this was a miscarriage of justice coming from “rogue prosecutors.” The next day Attorney General William Barr apparently directed his office to file an amended memo to the court, undercutting the first, recommending less time. (The four prosecutors quickly resigned from the case, one from the Justice Department entirely.) The memo reflects the DOJ’s empathy for Trump’s longtime adviser Roger Stone, 78, who had been facing substantial prison time.

Amy Berman Jackson is no stranger to working under pressure. As a federal prosecutor three decades ago, she was in the final hours of a momentous murder trial when prospective jurors for her next trial — an armed robbery case against three defendants — showed up in the same courthouse. ... “No judge should have to face this kind of pressure,” said Nancy Gertner, a Harvard Law School professor and former federal judge. She described Mr. Trump’s criticism of Judge Jackson as “preposterous.” But “nobody who knows her thinks she cannot handle it,” Ms. Gertner said. “She is tough and independent and very smart. She will steel herself against political influence and focus on the facts and the law.”

President Donald Trump’s associate Roger Stone will be sentenced Thursday on obstruction and perjury charges by a judge who has come under attack by the president as he assails the case against Stone.  ...“She is made of steel,” said retired Massachusetts federal Judge Nancy Gertner, who is now a professor at Harvard Law School. ...Gertner said that with his tweets Trump “is creating this cacophony that (Jackson) has to then work not to listen to.” “She's really strong, and she's really smart,” Gertner said. “And being smart makes all the difference in the world because you then know what the law requires.”

On Tuesday, President Trump pardoned or commuted the sentences of 11 people he said had served enough time or been treated unfairly. The moves come as the president has sharply criticized the Department of Justice for its handling of the case of longtime Trump advisor Roger Stone. William Brangham talks to two former judges, Harvard Law School’s Nancy Gertner and University of Utah’s Paul Cassell.

President Trump’s impeachment trial will come to a swift end this week following the Republican-led Senate’s decision to forgo additional witnesses and evidence despite new, pointed allegations from former adviser John Bolton about the President’s actions regarding Ukraine. On the Democratic side, the primary continues apace with the Iowa caucuses, a tradition that some have said is not truly democratic due to its unique rules and format, as well as the primarily white population of Iowa and does not mirror a diversifying America. To discuss all this and more, Retired federal judge Nancy Gertner, now a professor at Harvard Law School; and Nadeem Mazen, former Cambridge city councilor and founder of Fabrk.io, a new social networking platform focusing on protecting user data, joined Jim Braude Monday on Greater Boston to discuss this and more.

The federal judiciary charges 10 cents per page to pull up court files from its online record repository. The fees can add up quickly, and users must consider whether each click to view a public record is worth the cost. But a lawsuit in court on Monday in Washington challenges the government’s paywall to search online for case documents through the service known as PACER, an acronym for Public Access to Court Electronic Records. “The best policy is to make PACER free,” a group of retired federal judges told the court. Judicial records should be “as widely available as possible” and “wealth should not control access to justice,” according to a brief from the former judges, including Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit and Nancy Gertner of the U.S. District Court in Massachusetts. Court proceedings are open to the public, and case records can be reviewed free of charge in courthouse clerks’ offices during business hours. But downloading more than a handful of electronic records from your desk comes at a cost.

An article by Nancy Gertner: From the beginning, Alan Dershowitz, a member of Donald Trump’s legal team, tried to distance himself from the rest of the president’s White House lawyers. He didn’t sign onto the brief because his mandate was “to determine what is constitutionally authorized criteria for impeachment.” They may be partisan defenders of the president but he was in this as a matter of principle: “I’ve always taken positions that are principled and often unpopular and often in defense of people I don’t particularly support,” Dershowitz told the Associated Press, citing his defense of Neo-Nazis who wanted the right to march through Skokie, Illinois. It was an odd position for a lawyer from the outset and on Monday night, after listening to Dershowitz’s Senate presentation, it didn’t last long. No one is saying that Dershowitz — as the president’s lawyer — should be tarred with Trump’s politics. Dershowitz represented OJ Simpson, whatever he thought of Simpson’s guilt. Representing Jeffrey Epstein has given rise to a host of allegations against Dershowitz personally, which he has vehemently denied.

An article by Nancy Gertner: Attorney General William P. Barr’s support for an expansion of mandatory minimum sentences for federal drug crimes involving fentanyl analogues should come as no surprise given his long record of hawking incarceration as a solution to our drug crisis. We have seen this movie before; it does not end well. Illicit analogues are synthetic compounds that are substantially similar to Schedule I or II substances in chemical structure. Some analogues are dangerous substances with a substantial potential for misuse. Others are benign or helpful. For example, naloxone, a life-saving antidote to opioid overdoses, is an analogue of morphine, a powerful opioid. Scientists believe that an antidote for fentanyl overdoses could well be within the substances scheduled under a proposal pending in Congress.

The Senate impeachment trial of President Donald Trump began Tuesday with a fierce debate over the rules that Senate Majority Leader Mitch McConnell put forth for the proceedings. Key sticking points included the questions of whether any witnesses will be called and whether new evidence can be introduced. Republicans maintained that only information learned during the House proceedings should count and Democrats argued it is the Senate’s duty to hear all available evidence. Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School; and Renee Landers, Suffolk Law Professor and constitutional law expert joined Jim Braude Tuesday on Greater Boston to discuss the first day of the president's trial in the Senate.