Nancy Gertner

An op-ed by Nancy Gertner and Laurence H. Tribe: Michael Flynn’s sentencing on Tuesday took a turn that no one expected—not the special counsel, not the defense lawyers, not the public. Judge Emmet Sullivan—who was initially appointed as a judge by President Ronald Reagan and promoted by Presidents George H.W. Bush and George W. Bush—announced that he would not give Flynn the sentence the parties agreed upon. Flynn’s cooperation, which special counsel Robert Mueller said deserved probation, would not outweigh the seriousness of his crimes, both charged and uncharged, which the judge believed required prison. The judge even asked whether Flynn’s actions might have amounted to treason, a question many found perplexing. It was a question that could take on a different complexion in light of the redacted material available to the judge but not to the public, given Flynn’s role as Turkey’s secret agent during the Trump transition.

Nancy Gertner discusses the sweeping criminal justice reform bill passed by the U.S. Senate on Tuesday. It's called the First Step Act, and it proposes some significant changes to the federal prison system. In a rare show of bipartisanship, the Senate passed the bill 87-12, with only 12 Republicans voting no.

Partisan rhetoric in Washington is intensifying, as new court filings suggest President Trump may have skirted campaign finance laws. Federal prosecutors are recommending prison time for two former members of Trump's inner circle: former campaign chairman Paul Manafort and his personal attorney Michael Cohen. At the same time, the president's current circle continues to break apart with White House Chief of Staff John Kelly planning to leave at the end of the year. Guests...Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR legal analyst.

If his Twitter activity is any indication, President Donald Trump is getting nervous about what's coming next out of the Mueller investigation — especially as it relates to the testimony of his former fixer, Michael Cohen, who's been cooperating with the special counsel. Legal observers have pointed to his disparaging tweet towards Cohen as potential evidence of obstruction of justice. Meanwhile, three sentencing memos are due from Mueller this week: for Cohen, former security advisor Michael Flynn, and ex-campaign chairman Paul Manafort. To discuss the latest in the Russia probe, Jim Braude was joined by...Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School.

An op-ed by Nancy Gertner. Jose Medina-Perez, an immigrant, evaded ICE detention after his arraignment in the Newton District Court on drug charges and a Pennsylvania fugitive warrant, according to the Globe. While an Immigration and Customs Enforcement agent was waiting to take him into custody, he slipped out the back door of the courthouse. The details of how that happened are unclear. What is clear is that everyone — the defense lawyer, the prosecutor, and the judge — was concerned about whether Medina-Perez had been identified correctly in the fugitive warrant. The mug shot attached to the warrant didn’t match the defendant in the courtroom.

President Trump throws his support behind a rewrite of federal sentencing laws. What’s brought us to this point where politicians from both sides of the aisle are pushing for criminal justice reform? Guests...Nancy Gertner, retired Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

A federal judge on Friday ordered the Trump administration to restore the press credentials of Jim Acosta of CNN, handing the cable network an early win in its lawsuit against the president and members of his administration...“This ruling is not saying that what Acosta did was the right thing or the wrong thing,” said Nancy Gertner, a former federal judge and a Harvard Law School professor. “The judge ruled that the president can’t revoke his credentials without due process: a statement of what he did wrong, an opportunity to respond, a final decision. The ruling leaves those issues and his First Amendment challenge for another day.”

The number of criminal defendants who are challenging their waivers to their right to appeal is increasing throughout New York’s appeals courts, and appellate justices in Brooklyn are calling on trial judges to take greater care to ensure that defendants understand what they’re getting themselves into. ...Among them is Nancy Gertner, a retired federal judge who is on the faculty at Harvard Law School, who said the right to appeal should be as sacrosanct in the criminal justice system as the right to counsel and that it should be taken off the table for plea deals, especially at a time when the vast majority of criminal cases are resolved through plea deals. As for reducing backlog, Gertner said that justice should take priority over case management. “The more the criminal justice system becomes a mill, the more you see it taking in people who are one, innocent; two, poor; and three, black,” Gertner said.

A panel co-hosted by ProPublica, The New York Times Magazine, Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, and Harvard Law’s Criminal Justice Policy Program looked at the use of unreliable forensic science practices and models for reform...Held on Oct. 25 at Harvard Law School, the discussion convened prominent leaders from across the judicial system — including Nancy Gertner, a retired federal district judge and Harvard Law School senior lecturer

...In the new book “Tough Cases,” 13 trial judges from criminal, civil, probate, and family courts wrote candid and poignant firsthand accounts of the trials they can’t forget, giving readers a rare glimpse into their chambers. The book was the subject of a lively discussion at a panel sponsored by the Harvard Law School Library...“I don’t think I had ever really heard judges speak or write publicly about their thought processes and their tough cases the way this book captures,” said Andrew Crespo ’05, J.D. ’08, an assistant professor of law at Harvard Law School (HLS) and one of the panelists...Charles Fried, the Beneficial Professor of Law, said trial judges bear a heavy burden, not only because their work is lonely but because they have to steer their way through all facets of the human condition...For retired judge and HLS lecturer Nancy Gertner, “Tough Cases” reveals the challenges judges face and the need for the public to learn about them.

...Some legal experts do believe that the judiciary is feeling bolder than it once did, perhaps because of what they see as presidential overreach, perhaps because of Trump’s open hostility to the federal courts, reflected in his comment in 2017 about the “so-called” judge who first ruled against his travel ban and his reference to U.S. District Judge Gonzalo Curiel’s “Mexican heritage” when he was presiding over a case against Trump University. “Context matters,” as former federal judge and now Harvard Law School’s Nancy Gertner wrote in an article called “Judging in a Time of Trump.”

Roughly two dozen Harvard Law School professors have signed a New York Times editorial arguing that the United States Senate should not confirm Judge Brett M. Kavanaugh as an Associate Justice of the Supreme Court. Harvard affiliates — including former Law School Dean Martha L. Minow and Laurence Tribe — joined more than 1,000 law professors across the country in signing the editorial, published online Wednesday. The professors wrote that Kavanaugh displayed a lack of “impartiality and judicial temperament requisite to sit on the highest court of our land” in the heated testimony he gave during a nationally televised hearing held Sept. 27 in front of the Senate Judiciary Committee....As of late Wednesday, the letter had been signed by the following: Sabi Ardalan, Christopher T. Bavitz, Elizabeth Bartholet, Christine Desan, Susan H. Farbstein, Nancy Gertner, Robert Greenwald, Michael Gregory, Janet Halley, Jon Hanson, Adriaan Lanni, Bruce H. Mann, Frank Michelman, Martha Minow, Robert H. Mnookin, Intisar Rabb, Daphna Renan, David L. Shapiro, Joseph William Singer, Carol S. Steiker, Matthew C. Stephenson, Laurence Tribe, Lucie White, Alex Whiting, Jonathan Zittrain

An op-ed by Nancy Gertner. I was in a taxi enroute to the O’Hare Airport in Chicago Thursday afternoon. I had watched Christine Blasey Ford testimony in the morning. I was extraordinarily moved; I believed her, plain and simple. I thought that at the very least, there would be no rush to judgment on the part of the Senate — no confirmation vote until all of the circumstances of her accusation and others had been investigated. I asked the driver to turn to a station broadcasting the confirmation hearings so that I could hear Judge Brett Kavanaugh’s response. At first, I thought that the driver had turned to the wrong station. The man speaking sounded like a talk radio host, angry, spewing heated rhetoric about the Democrats, even the Clintons, referring to bizarre left wing conspiracy theories. I then realized that this was not a shock jock; this was Judge Kavanaugh. Kavanaugh’s performance at that hearing alone should be disqualifying.

A second woman has come forward and accused Supreme Court nominee Brett Kavanaugh of sexual assault in an incident she says occurred during Kavnaugh's freshman year at Yale. The Senate Judiciary Committee is set to hear testimony from Kavanaugh's first accuser, Christine Blasey Ford, on Thursday, followed by testimony from Kavanaugh himself. It is unclear how these new allegations will affect the scheduled testimony or confirmation vote. Guests: Nancy Gertner, WBUR legal analyst, retired federal judge and senior lecturer at Harvard Law School.

An op-ed by Nancy Gertner. Without the context that the findings of an F.B.I. investigation could provide, the Senate hearing planned for Monday pitting Brett Kavanaugh against Christine Blasey Ford, who has accused him of sexual assault, runs the risk of being seen as little more than Kabuki theater, or, more pointedly, a gesture of appeasement to the #MeToo movement. In other words, we gave her a hearing, now we’re ready to vote.

It's not every presidential administration in which news that the former campaign chairman has agreed to cooperate with the special counsel, gets knocked off the front page in a matter of hours. But the Trump team is ever the exception. And today, all anyone can talk about is his Supreme Court nominee, Brett Kavanaugh, and the woman who has publicly accused him of sexual assault. Jim Braude was joined by Nancy Gertner, retired federal judge and senior lecturer at Harvard Law, and Martha Coakley, former state Attorney General, now a partner at Foley Hoag, and Jim Rappaport, former chair of the Mass. GOP.

...“I would be very troubled if someone were about to go to jail for something like this that happened 40 years ago,” said Nancy Gertner, a retired federal judge who has written extensively in defense of women’s rights in sexual harassment and sexual assault. Still, she said, “With respect to the Supreme Court you’re dealing with an elite position which is a privilege to be confirmed for. And arguably the standards are much higher.” Judge Gertner noted that she had raised two teenagers — “teenage boys are nuts,” she said — and she has seen how allegations, even when found to be false, can unfairly tarnish young men. Last year, she and three other Harvard Law School professors urged the Department of Education to reassess Obama-era guidance to colleges on dealing with allegations of sexual assault, arguing they had encouraged colleges to adopt definitions of misconduct that are “seriously overbroad.”

It's not every presidential administration in which news that the former campaign chairman has agreed to cooperate with the special counsel, gets knocked off the front page in a matter of hours. But the Trump team is ever the exception. And today, all anyone nationally can talk about is his Supreme Court nominee, Brett Kavanaugh, and the woman who has publicly accused him of sexual assault. Jim Braude was joined by Nancy Gertner, retired federal judge and senior lecturer at Harvard Law, Martha Coakley, former state Attorney General and now a partner at Foley Hoag, and Jim Rappaport, former chair of the Mass. GOP.

Paul Manafort’s lawyers declined Tuesday to call any witnesses to defend him against charges of bank and tax fraud. Mr. Manafort, President Trump’s former campaign chairman, also told the judge that he did not want to testify, clearing the way for closing arguments from both sides and the start of jury deliberations on Wednesday. The decision by the defense to rest without presenting its own evidence was not unusual. “The defense believes it has made its point through cross-examination,” said Nancy Gertner, a Harvard Law School professor and a former federal judge.

An op-ed by Nancy Gertner. It is not unusual for judges to intervene in court proceedings from time to time — to direct the lawyers to move the case along or to admonish them that evidence is repetitive. The judge's role is to act not as a "mere moderator," as the Supreme Court noted in Herron v. Southern Pacific in 1931, but as the "governor of the trial" responsible for assuring the proper conduct of all participants. The performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual. During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge's interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution's evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not.