Nancy Gertner

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.

We speak with Harvard professor Alan Dershowitz, who said he will present oral arguments during President Trump's impeachment trial in the Senate. Plus, WBUR Legal Analyst, retired federal judge and a senior lecturer at Harvard Law School Nancy Gertner provides analysis.

The Supreme Court on Monday declined to take up an appeal filed by Michelle Carter of Plainville. Her boyfriend, Conrad Roy, killed himself in 2014 and Carter was convicted of involuntary manslaughter for encouraging him to do so. Her team said the conviction violated Carter's First Amendment rights. WBUR legal analyst Nancy Gertner is part of that defense team — she's also a retired federal judge, and senior lecturer at Harvard Law School. She joins us to discuss the case.

An article by Nancy Gertner: It’s common to hear television commentators intone about how an impeachment trial in the Senate is “just” a political process, not a legal one, as if that means a free for all, the typical horse-trading of a legislative session. While the Constitution is not often specific, when it comes to impeachment, the words are fairly clear, especially on the issues now being debated: Should there be live witnesses at a Senate trial? How impartial should the senators be? Should there be additional evidence in the Senate that was not produced before the House?...One thing, though, hasn’t changed. Jurors then and now take an oath to be impartial — just like the Senate’s impeachment oath...In fact, the reason why the Framers rejected having impeachment in the Supreme Court, according to Harvard Law Professor Larry Tribe and Georgetown Law Professor Joshua Matz, was not just that they knew the Court could include justices appointed by the sitting president; they reasoned that the Senate’s sheer size as compared to that of the Court would safeguard against corruption.

Used to be that the promise of earning a sterling line on a resume and connections to stars of the legal profession was enough to lure Harvard law students to federal clerkships...The expectation is that judges and their clerks will act and make decisions based on the law, not in the interest of ideology or political party, said Charles Fried, a Harvard constitutional law professor and former solicitor general in the Reagan administration. “If the only people who will clerk for a Trump-nominated judge are the people who voted for Trump, it will drive things to further extremes,” Fried said. “It’s odd and self-defeating.” Judges without strong experience who may be too ideologically driven need smart law clerks who will offer different perspectives, he said...“We work to share available clerkship opportunities with our students, confident they will apply for the ones that best suit their interests and needs,” said Mark Weber, assistant dean for career services at Harvard Law School in a statement. “We understand that different judges appeal to different applicants for different reasons.”...Nancy Gertner, a retired Massachusetts federal judge who teaches at Harvard, said neither the president nor students should have narrow slates of judges that they are willing to consider. “You can’t be in a position to say there has to be an orthodoxy to become a judge or work for a judge,” Gertner said.

Greater Boston takes a look back at the biggest stories of the Trump presidency in 2019, from the Mueller investigation and impeachment, to the family separation policy and debates about gun control following mass shootings, and more. Jim Braude was joined by LaTosha Brown, co-founder of Black Voters Matter Fund and a fellow at Harvard Kennedy School’s Institute of Politics, retired federal judge Nancy Gertner, now a senior lecturer at Harvard Law School, and Joe Malone, former state treasurer for Massachusetts and current Trump supporter.

On Thursday, lawyers representing convicted 26-year-old Boston Marathon bomber, Dzhokhar Tsarnaev, will go before a three-judge panel of the U.S. Court of Appeals to argue that their client did not receive a fair trial in 2015...They will further argue that Judge George O'Toole should not have allowed the trial to be held in Boston, since the city was widely viewed as a "victim" in the attack...O'Toole's former colleague on the federal bench, Nancy Gertner, now a professor at Harvard Law School, said that keeping the case in Boston complicated the task of impaneling an impartial jury. "Boston was the victim and not just conceptually, but also everyone was victimized by the lockdown" that was ordered as police searched for the bombing suspects," Gertner said. "So there was a substantial question about whether the case should have been brought in Boston and a substantial question about timing, because the trial was actually taking place during the end of the second anniversary of the bombing when you couldn't go around the city without seeing 'Boston Strong.'"

On Thursday, lawyers representing convicted 26-year-old Boston Marathon bomber, Dzhokhar Tsarnaev, will go before a three-judge panel of the U.S. Court of Appeals to argue that their client did not receive a fair trial in 2015. They will also ask that the death penalty in the case be rescinded. Tsarnaev's legal team will argue that their client received neither a fair nor impartial trial and sentencing. The court is being asked to consider whether Judge George O'Toole acted properly, whether the nondisclosure of social media postings compromised jury selection and whether the death penalty decision was influenced by juror bias...O'Toole's former colleague on the federal bench, Nancy Gertner, now a professor at Harvard Law School, said that keeping the case in Boston complicated the task of impaneling an impartial jury. "Boston was the victim and not just conceptually, but also everyone was victimized by the lockdown that was ordered as police searched for the bombing suspects," Gertner said. "So there was a substantial question about whether the case should have been brought in Boston and a substantial question about timing."

More than four years after Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death for killing four people and wounding hundreds more, his attorneys will argue in a Boston courtroom Thursday why his conviction and death sentence should be thrown out. Attorneys for Tsarnev’s defense and the federal government will each have an hour to make their cases in front of three appeals court judges at the Moakley Courthouse in Boston — the same courthouse where Tsarnaev was sentenced in 2015...“This case should not have been tried in Boston." That's the first line of the appeal's introduction...Former federal judge Nancy Gertner said this was a case where Boston, through its iconic marathon, was the victim. "You would never have a trial in the victim's home," she said. "And this is essentially the victim's home."

House Democrats summarized their case for the impeachment of President Donald Trump before the Judiciary Committee in a sometimes contentious hearing Monday, as Republicans repeatedly issued motions that interrupted the proceedings, and pushed back on both the process and the body of evidence. To discuss, Jim Braude was joined by retired federal judge Nancy Gertner, now a senior lecturer at Harvard Law School, and former state treasurer Joe Malone, who supports Trump.

Here's the Radio Boston rundown for Dec. 5. Tiziana Dearing is our host...As Speaker Pelosi moves forward with drafting articles of impeachment against President Trump, we check in with WBUR senior news correspondent Kimberly Atkins and retired federal judge, senior lecturer and Harvard Law School and WBUR legal analyst Nancy Gertner.