Nancy Gertner

An op-ed by Nancy Gertner. He sounds so judicial. He talks about neutrality, raising plain vanilla issues about deference to the expertise of administrative agencies. It is boring, hardly likely to engender indignation. He says his decisions are required by the law — not affected by his own background. He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, and far out of the mainstream. Quite apart from social issues like abortion or gay rights, his approach could gut health and safety and antidiscrimination laws.

An interview with Nancy Gertner. Judge Neil Gorsuch faced his third long day of Supreme Court confirmation hearings with the Senate Judiciary Committee today. Yesterday, Gorsuch faced questioning about his judicial independence. Today, Republicans praised his calm demeanor and carefully worded answers. Democrats, however, appealed to Gorsuch's more personal side.

An op-ed by Nancy Gertner. That Attorney General Jeff Sessions made a false statement under oath before a congressional committee is clear. He said, “I did not have communications with the Russians,” when in fact he had met twice with Russian Ambassador Sergey Kislyak. The only question is what the consequences should be. Making a false statement under oath before Congress is a crime punishable by five years imprisonment when three tests are satisfied: (1) The statement is false, (2) it concerns a material fact, not a minor or incidental one, and (3) the speaker has made the statement willfully and knowingly. The first two are not debatable.

An interview with Niki Tsongas and Nancy Gertner. The Washington Post reported last night that Sessions spoke twice last year with Russian Ambassador Sergey Kislyak. But when asked about communication with the Russians at his Judiciary Committee confirmation hearing in January, Sessions said, “I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians.” Sessions revised that statement this morning, speaking to NBC News...Now, leading Republicans are joining Democrats in calling on Sessions to recuse himself from overseeing an investigation into alleged Russian interference in the presidential campaign. Many have also called on Sessions to explain what his meetings were about.

An op-ed by Nancy Gertner. President Trump frequently complains about Washington leaks. But what he is really concerned about is that these leaks are not random. He believes that they are being deployed to harm his administration. (Of course, he had no problem with WikiLeaks’ leak of e-mails from the Democratic National Committee during the campaign. “I love WikiLeaks,” he said.) But the pattern of leaks is uneven and, in one area, that inconsistent pattern may well redound to Trump’s advantage: Despite all the information that has come out of this leaky administration, his tax returns remain confidential (except for a single year reportedly leaked by one of Trump’s former wives).

An interview with Nancy Gertner. A ruling out of Concord District Court calls into question the accuracy of breathalyzer machine tests in Massachusetts and could impact 20,000 drunken-driving cases in the state. The cases occurred between June 2012 and September 2014. In a hearing decision issued last week, Judge Robert Brennan found that the state's Office of Alcohol Testing failed to prove its methodology for calibrating its breath-testing machines.

An interview with Nancy Gertner. On Wednesday, Gov. Charlie Baker nominated state Appeals Court Judge Elspeth "Ellie" B. Cypher to serve on the Supreme Judicial Court. This is Baker's fourth nomination in just over two years. Cypher would fill the position held by Justice Margot Botsford, who will be retiring next month.

It’s not every day that a former governor comes before the Supreme Judicial Court, but that’s what happened this week in a case involving Deval Patrick. The Democrat, who left office in 2015, is accused by a former state employee of defamation and is fighting the charge. The unique case raised an equally unique question: Is it wrong for justices who were appointed to the court by Patrick to hear his case? No, said two legal experts. While there are extensive rules governing when justices can and should recuse themselves, this isn’t one of them... Nancy Gertner, a Harvard Law professor and former judge for the US District Court of Massachusetts, agreed, saying the judge would have to have been somehow involved in the case before he or she was on the bench. Gertner said that once a justice is appointed, he or she is expected to be impartial.

In sentencing a 19-year-old who pleaded guilty to statutory rape last week, a judge in Idaho made clear his punishment would include an extra wrinkle: government-mandated celibacy. The unusual proclamation by Judge Randy Stoker of the Fifth District of Idaho that abstinence would be a condition of probation appears to be based at least partly on an archaic, rarely enforced state law that forbids premarital sex...Nancy Gertner, a lecturer at Harvard Law School and a former federal judge, said fornication laws often stay on the books only because they are enforced so infrequently that they have not been challenged. They would likely crumble under legal scrutiny, she said. She said fornication laws were seen as unconstitutional after the United States Supreme Court 2003 decision in Lawrence v. Texas, which was considered a landmark case for gay rights because it struck down state sodomy laws. At the same time, the decision codified a broader principle that decriminalized the private sexual behavior of consenting adults, Ms. Gertner said. While judges are free to impose specific limitations related to the crimes of those on probation, “there are limits that have to do with dignity and substantive due process,” she said. A judge could not force someone to get a lobotomy or a vasectomy, and limiting a person’s private sex life struck her as a similar overreach.

An op-ed by Nancy Gertner. The Icarus myth is a cautionary tale for our new president. Daedalus gave his son, Icarus, wings made of feathers and wax on a wood frame, with a warning. If Icarus flew too near the sun, the wax would melt and he would fall to his death. Icarus, heady with his new power and bursting with hubris, ignored the warnings and perished. It is one thing to be a real estate mogul, playing fast and loose with the bankruptcy laws. It’s another to be the president playing close to the line. If Trump suppressed the investigation of Russian hacking of the Democratic National Committee in order to avoid delegitimizing his election, he could could have committed treason, as John Shattuck has written. Any foreign money Trump receives, in any form, could violate the Constitution’s Emoluments Clause — which prohibits government officials from taking money or gifts from a foreign state — as alleged in the lawsuit filed last week by a group of ethics experts and legal scholars. And if he tries to use his presidential power to secure private advantage, he could face impeachment for extortion or bribery.

People know Allison Dale Burroughs as fearless. As a prosecutor who cracked down on organized crime in Philadelphia during the 1990s at the US attorney’s office, Burroughs garnered a reputation as a whip-smart attorney who was attracted to challenging, demanding work, said John Pucci, who worked alongside her in Philadelphia...In 2014, Nancy Gertner, a former federal judge, was part of the committee that recommended Burroughs to her current position. “She is someone who knows her way around the US attorney’s office, knows her way around the Boston legal community, and more significantly,” she said, “we knew she would have guts.”...Alex Whiting, who worked with Burroughs as a prosecutor at the US attorney’s office in Boston, also said he was always struck by another thing. “She is fair, and she has great judgment,” said Whiting, now a professor at Harvard Law School. “Prosecutors have a lot of power, and she was always thoughtful of how that power was being used.”

The Gun Owners' Action League and other plaintiffs have filed a lawsuit challenging the state's ban on assault weapons. They argue that the ban is unconstitutional. The lawsuit also involves a directive that Attorney General Maura Healey issued in July that cracks down on copies or duplicates of forbidden guns, where gunmakers alter a weapon slightly to comply with state law. But the tweaks don't limit how lethal the weapons are...Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

Closing arguments are set for tomorrow in the death penalty case of Gary Lee Sampson. The court is deciding whether to uphold Sampson's 2003 death sentence. We analyze the trial so far with WBUR legal analyst and former Judge Nancy Gertner.

More than 40 liberal law professors sent a letter to President-elect Donald Trump on Tuesday, voicing “great concern” with his commitment to the nation’s constitutional system and opposing the nomination of Sen. Jeff Sessions, R-Alabama to be the next attorney general. The letter identified seven areas in which Trump has shown “complete ignorance or indifference toward constitutional values,”...Among the signers are...former federal judge Nancy Gertner of Harvard Law School...Most of the signers are board members or advisers to the liberal American Constitution Society, which posted the letter on its site Tuesday.

WBUR legal analyst Nancy Gertner looks at the ongoing legal battles between Massachusetts Attorney General Maura Healey and ExxonMobil, as well as how President-elect Donald Trump could reshape the Supreme Court, and what that could mean for Massachusetts.

...This fall, a new Harvard course has helped students become part of the effort to reform the nation’s criminal justice system. Schiraldi, Harvard Law School lecturer Nancy Gertner, and Harvard sociologist Bruce Western are teaching a graduate seminar examining the origins of U.S. mass incarceration and helping students craft workable solutions for getting, and keeping, people out of prison...“Each of us in different ways has been teaching and working on the problem of criminal justice policy,” said Gertner, who served as a federal judge in Massachusetts for 17 years. “We thought there would be some unique value in bringing together three perspectives: the social science on problems of crime and criminal justice, the perspective of policy research and analysis, and law.”

On Tuesday, the Massachusetts Supreme Judicial Court handed down a decision on parental rights that broadens the legal definition of a family. In the case, Partanen v. Gallagher, the state extended parental rights to people in same-sex relationships who never married, and who don't have a biological connection to a child, if they can show that they have been actively involved with the child's upbringing. We'll also talk about the case of Duane Buck, a convicted Texas murderer whose case is now before the Supreme Court. The court is examining the role of race in sentencing after a psychologist testified that Buck was more likely to be a future danger to society because he was black. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

The United States Supreme Court today declined to hear the case of Boston gangster James "Whitey" Bulger. A jury in 2013 convicted Bulger for his role in 11 murders, extortion and drug offenses in the 1970s and 1980s. Because of the decision, the 87-year old will continue to serve his life sentence. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

On Wednesday, the Massachusetts Supreme Judicial Court ruled in the case of Commonwealth v. White that police do not have blanket authority to seize cellphones in criminal investigations. The case had to do with police officers investigating an armed robbery and fatal shooting in 2010. The officers seized a suspect's cellphone from his high school without a search warrant. In order to do so, the officers needed probable cause that a warrant would have been approved, but the court ruled the suspicion that a phone may have contained evidence of the crime is insufficient. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.