Nancy Gertner

An interview with Nancy Gertner. Yesterday, The New York Times published a list of dozens of questions that Special Counsel Robert Mueller hopes to ask President Trump as part of his investigation. The questions cover a wide range of topics, and provide the most in-depth look at what the Special Counsel's investigation is focusing on to date.

President Trump’s interview Thursday on “Fox & Friends,” in which he blasted the Justice Department and admitted for the first time publicly that his personal attorney represented him in a hush-money payout to a porn star, was ill-advised even if it didn’t immediately place him in legal jeopardy, specialists said. “He’s unmoored, is the only way to describe it,” said Nancy Gertner, a retired federal judge who now teaches at Harvard Law School. Gertner, who’s emerged as a high-profile critic of Trump among legal scholars, said she was taken aback by comments the president made that “suggest he plans to obstruct justice or is motivated to obstruct justice.”

Some spirited sniping between two Harvard Law School giants might be funny in some context, were the fate of Western democracy not potentially tottering in the balance. In an Ali-Frazier battle of legal minds, former federal judge Nancy Gertner this week smote celebrated legal scholar Alan Dershowitz in the opinion section of The New York Times, accusing him of falsely smearing Robert Mueller, the special counsel investigating Russian interference in the 2016 election and whether or not the Trump campaign was in on it. Gertner and Dershowitz are longtime friends, but the highbrow exchange had an edge. Gertner, a senior lecturer at Harvard Law School, lumped Dershowitz, the loquacious Harvard law professor emeritus, in the same paragraph with partisan mouthpieces Rush Limbaugh and Sean Hannity.

An op-ed by Nancy Gertner. Was Robert Mueller, the special counsel, complicit in one of the worst scandals in the F.B.I.’s history — the decades-long wrongful imprisonment of four men for a murder they didn’t commit? This question, which has been raised before, is being addressed again — this time by some of President Trump’s most ardent supporters on the right, especially Fox News’s Sean Hannity but also Rush Limbaugh and others. My friend Alan Dershowitz, the retired Harvard Law School professor, has also weighed in. In an April 8 interview with John Catsimatidis on his New York radio show, Mr. Dershowitz asserted that Mr. Mueller was “the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an F.B.I. informer.”

Official federal sentencing guidelines don’t distinguish between female and male offenders. They often downplay or outright disregard circumstances that are common among women, such as the role of an offender as the sole caretaker for children or an offender having been coerced into committing a crime. But judges commonly compensate ad hoc, which has led to women on the whole receiving much shorter sentences than men when facing the same punishments. Critics say the sentencing benchmarks should provide more flexibility from the start — a change that would benefit women like James but also men in similar circumstances, whose extenuating factors may be even more likely to be overlooked. “The notion that you simply deal with a complicated situation by saying, ‘Let’s ignore the complexity,’ is idiotic,” said former federal judge Nancy Gertner, now a lecturer at Harvard Law School.

A federal court judge said Monday he won't re-issue proposed instructions to a jury that will hear the case of two Boston city officials who are accused of conspiracy and extortion in an effort to strong-arm the music festival Boston Calling into hiring union workers. Prosecutors say the instructions could sink their case. For more on the decision and on the upcoming trial, WBUR legal analyst and retired federal judge Nancy Gertner joined Morning Edition.

An interview with Nancy Gertner. By January 6, the Powerball lottery jackpot hit a new high at $560 million - one of the largest in U.S. history. The winner was a woman from Southern New Hampshire, who is arguing in court for her right to remain anonymous. A team of lawyers went to court this week to fight for her anonymity.

Cliven Bundy wanted to walk out of the courtroom in his jail jumpsuit and ankle shackles. Deputy marshals blocked him from doing that. But if it hadn’t been for “flagrant misconduct” committed by federal prosecutors and investigators in the case, the Nevada cattleman may not have been walking out at all...The report suggests that parallel construction may be being employed to conceal information gathered through legally questionable methods. Whether it is obtained unlawfully or not is beside the point, according to Nancy Gertner, a Harvard Law School lecturer who served as a federal judge from 1994 to 2011, since the practice transfers the decision of what information gets disclosed to defendants from judges to law enforcement and prosecutors. “You can envision a situation where they think they’re doing something legal but they’re not sure, so they use parallel construction,” she adds.

An op-ed by Nancy Gertner and Paul Butler. To say that President Trump cannot be charged with obstruction of justice in connection with James Comey’s firing just because the president had the authority to fire him — as Trump’s counsel John Dowd says — is simply wrong.

The audience could sense where the story was going almost as soon as Bryan Stevenson began telling it. Two black children in the barely desegregated South, hurtling with giddy, unguarded elation toward their first swim in a pool that until recently had been available only to whites... Nancy Gertner, a retired U.S. judge and senior lecturer at Harvard Law School, deplored the mandatory sentencing rules that reduce defendants to “the quantity of drugs, their criminal record, and nothing else.” ... Friendly professor of law Carol Steiker looked back at the past few hundred years of American death penalty laws.

For the past 30 years, lawyer and social activist Bryan Stevenson ’85 has battled through the courts, defending wrongly convicted death-row prisoners and children prosecuted as adults, while condemning mass incarceration, excessive sentences, and racial bias in the criminal justice system...Delivering the 2017 Tanner Lecture on Human Values on Wednesday, Stevenson announced a planned memorial to honor more than 4,000 victims of lynching in the U.S. and a museum that traces the country’s history of racial inequality from enslavement to mass incarceration...Afterward, Homi K. Bhabha, director of the Humanities Center, led a panel discussion on the issues of mass incarceration, racial injustice, and the death penalty. Among the panelists were Nancy Gertner, senior lecturer on law at the Law School and a retired U.S. district judge; Tommie Shelby, Caldwell Titcomb Professor in the Department of African and African American Studies and the Department of Philosophy, and Carol S. Steiker, Henry J. Friendly Professor of Law at the Law School. Reflecting on her years on the bench, Gertner criticized mandatory minimum sentencing, a legal trend that was a product of the war on drugs that led to the surge in the number of African-Americans in the federal prison population...Steiker spoke about the history of the death penalty in the United States and talked about its racial basis. The United States is the only Western democracy that uses capital punishment, she said, and is a leader internationally in doing so.

Debra Katz, founding partner of Katz, Marshall & Banks, and Nancy Gertner, a professor at Harvard University Law School, discuss the legal fallout from the recent wave of sexual harassment accusations against powerful men in politics, media and entertainment. They speak with Bloomberg’s Greg Stohr on Bloomberg Radio’s "Bloomberg Law."

...In 2011, following an investigation by NPR and the Center for Public Integrity on campus assault, the Obama administration decided to act. The Office for Civil Rights sent a “dear colleague letter” reminding colleges that sexual harassment and assault create an environment so hostile that women’s access to education is jeopardized, violating their civil rights...“O.C.R.’s rationale” was that preponderance of evidence “was the standard for suits alleging civil rights violations like sexual harassment,” wrote Nancy Gertner, a retired federal judge and current Harvard law professor, in The American Prospect in 2015. “True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery.” She continued: “It is the worst of both worlds, the lowest standard of proof coupled with the least protective procedures.”

An op-ed by Nancy Gertner, Vincent Schiraldi and Bruce Western. The Massachusetts Senate recently passed watershed legislation that, among other things, retroactively reduces mandatory sentences and incorporates 18-year-olds into the state’s juvenile court justice system. As researchers, educators, and former criminal justice practitioners, we think the legislation is on solid ground. Nine of the state’s 11 district attorneys have expressed concern that curbing mandatory sentences and raising the juvenile court age would be a “return to the old and discredited ways of the past.” It is just the opposite.

An op-ed by Nancy Gertner. Governor Charlie Baker’s proposal to increase penalties for those whose illegal drug distribution causes an overdose death sounds good — at first glance. Increasing sentences usually does. The approach also sounded good in the 1980s and 1990s, when a crack cocaine epidemic led Congress to approve of mandatory minimum sentences that doubled or tripled drug penalties — 10- or 20-year sentences, even life imprisonment. But the move did little to stem drug-related crimes or addiction.

An interview with Nancy Gertner. More fall out against Harvey Weinstein on Monday — as Hollywood heavyweights come out against the six-time Oscar winning producer. They're reacting to last week's searing New York Times story that Weinstein allegedly sexually harassed women for years, and for years kept it all quiet through at least eight legal settlements.

If President Trump spoke with Paul Manafort while his former campaign manager was being wiretapped, experts say there's no quick legal route to disclose the existence or content of intercepted calls. Public disclosure isn't guaranteed because two reported wiretap orders targeting Manafort were issued under the Foreign Intelligence Surveillance Act, rather than via the ordinary criminal wiretap statute...Former federal judge Nancy Gertner, a senior lecturer at Harvard Law School, said "the transcript will not be released unless there is an indictment and a public trial."

When Education Secretary Betsy DeVos last week announced plans to revise the nation’s guidelines on campus sexual assault, the predictable din of outrage drowned out the applause from some unlikely corners of college campuses: Many liberals actually approve...“Betsy DeVos and I don’t have many overlapping normative and political views,” said Janet Halley, a Harvard Law School professor and expert on sexual harassment who supports the change. “But I’m a human being, and I’m entitled to say what I think.”...Also among them were four feminist professors who wrote a letter to the Department of Education last month beseeching DeVos’s department for a revision of the rule. Definitions of sexual wrongdoing are now far too broad, they wrote...The authors — Halley, Elizabeth Bartholet, Nancy Gertner, and Jeannie Suk Gersen — have all researched, taught, and written about sexual assault and feminist legal reform for years. Halley, who has represented both accusers and the accused in campus cases, said her colleagues maintain universities should have robust programs against sexual assault.

...As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX.

Four Harvard Law School academics have asked the U.S. Department of Education to revisit policies regarding campus sexual misconduct investigations...The Harvard memo (PDF) was signed by Janet E. Halley, Elizabeth D. Bartholet, and Jeannie Suk Gersen, all of whom are Harvard law professors, and Nancy Gertner, a lecturer at the school who is also a retired federal judge. They submitted the memo to the Department of Education Aug. 21. “Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter,” the memo reads.