Nancy Gertner

The state’s highest court, tossing out a Boston man’s gun conviction, ordered judges Tuesday to consider whether a black person who walks away from a police officer is attempting to avoid the “recurring indignity of being racially profiled” — and not because the person is guilty of a crime. The Supreme Judicial Court overturned the conviction of Jimmy Warren, citing studies by the American Civil Liberties Union and Boston police, both of which found that black people were more likely to be stopped and frisked by police between 2007 and 2010...Retired federal Judge Nancy Gertner described the ruling as “an extraordinarily significant decision” because the courts will be forced to consider an officer’s actions in these cases. “Up until now it has been too easy for courts to legitimize, after the fact, police decisions on the ground, giving them deference under circumstances where deference is not warranted,” said Gertner, a senior lecturer at Harvard Law School. “It should affect police behavior going forward.”

Today, 13 years after he became the the first defendant ever sentenced to death in federal court in Massachusetts, Gary Lee Sampson returned to court for a new sentencing trial. Back in 2003, Sampson pleaded guilty to the stabbing murders of two men in the course of two separate carjackings in 2001, and jurors in the case unanimously chose the death penalty as his sentence. But in 2011, U.S. District Judge Mark Wolf overturned that sentence, because one of the jurors lied during jury selection. So now the court will seat a new jury, tasked with deciding Sampson's fate once again. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

Sean Ellis was convicted of murdering Boston Police Detective John J. Mulligan in 1993. In 2015, Ellis was released on bail after 22 years behind bars. Friday morning, the Supreme Judicial Court of Massachusetts concluded Ellis was unfairly tried and entitled to a new trial. Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

The effectiveness of mandatory minimums is up for debate. NPR's Scott Simon talks to retired federal judge and Harvard Law professor Nancy Gertner about the topic.

An op-ed by Nancy Gertner. A number of Republicans, including Michael Mukasey, former judge, and Attorney General, have advocated for mens rea reform. (Mens rea is the state of mind required of a defendant guilty of a crime.) So important was the proposed mens rea statute that this group helped derail bipartisan criminal justice reform that did not include it, legislation that would have ameliorated mass incarceration. Their ardor for mens rea reform makes all the more curious their beating the drum for the prosecution of Secretary Hillary Clinton for using a private email server to communicate with state department employees. Republican support for mens rea reform should lead in the opposite direction – backing FBI Director James Comey’s decision to decline prosecution.

A Supreme Court ruling that has made it more difficult to prosecute public officials for corruption could affect a wide range of cases in Massachusetts, including the ongoing investigation into state senator Brian A. Joyce, the indictment of Boston City Hall officials, and the convictions of state probation department officials...“One takeaway from the McDonnell decision is the notion it’s OK to advocate on behalf of constituents,” said Nancy Gertner, a retired federal judge and Harvard Law School professor. “The question is what is legitimate constituent advocacy and what is not.”

In a rather confusing and seemingly contradictory statement, FBI Director James Comey announced Tuesday that the agency would not recommend bringing charges against Hillary Clinton for her use of a private email server while she served as secretary of state..."There are lots of statutes that deal with the mishandling of classified information, but what they all have in common is that it's intentionally or knowingly reckless, not careless," Nancy Gertner, a Harvard Law School lecturer who specializes in criminal law, told Business Insider. "If carelessness were sufficient, we would have indicted half the government."

An op-ed by Nancy Gertner. The Supreme Court’s decision in the corruption case against former Virginia governor Robert McDonnell will complicate the already complex investigation of union influence in the Walsh administration. The court found that it was not a crime to receive money from a constituent in exchange for introducing him to officials who might be interested in his business and even hosting him at the governor’s mansion. What was illegal was taking money in exchange for a decision on a pending matter, like the award of a specific government contract or a vote for bill. The decision was unanimous and followed other Supreme Court decisions rejecting the government’s novel interpretation of federal criminal statutes.

When Judge Anthony Kennedy was put forward for the supreme court by President Ronald Reagan, whose previous two nominations had been rejected, he was asked whether he had ever smoked marijuana. “No,” he insisted, “firmly no.” Kennedy was a safe pair of hands. But in the just ended term, dominated by the death of fellow Catholic and Reagan appointee Antonin Scalia, he has emerged as the pivotal figure and surprised many by tilting America’s highest court to the left...“He’s not easy to predict and there are those who believe that’s a good thing for a judge, that the court has been too polarised for a long time,” said Nancy Gertner, a retired federal judge who now teaches at Harvard Law School.

Four major Supreme Court decisions were released Thursday that amount to a win for supporters of affirmative action, a setback for President Obama's immigration plan and significant implications for mandatory minimum sentencing. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. Charles Fried, professor of law at Harvard Law School and former U.S. solicitor general.

If a police officer stops you, asks for an ID and runs a routine check, he might find an outstanding "small traffic warrant." You could be arrested and charged with a serious crime based on that warrant, not for any traffic violation, but for drugs found during a search...Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

An op-ed by Marc Mauer, Nancy Gertner, and Jonathan Simon. Despite growing national discussion on criminal justice reform, Weldon Angelos sits in a federal prison serving out his 55-year prison term. Angelos was convicted in 2004 for three marijuana sales to an undercover agent totaling about $1,000 within a 72-hour period. During the course of these transactions he possessed a gun, which he did not use nor threaten to do so. But because of federal mandatory minimum sentencing laws, the sentencing judge was obligated to impose this draconian prison term because he had committed a repeat drug offense with a firearm, all the while acknowledging that the sentence was excessive. While President Obama has stepped up the pace of granting clemencies in drug cases, his total since taking office is only 306. With 85,000 drug offenders in federal prisons, many deserving of consideration, the pace of commutations to date is encouraging but still quite modest. With only months to go in this administration there is growing concern that the clemency initiative announced by the Department of Justice in 2014 will fall far short of expectations.

An op-ed by Nancy Gertner. Access to justice means more than fancy courthouses, a courtroom with high ceilings, the American flag unfurled, and even compelling quotes from the U.S. Constitution. Access to justice means more than a presiding judge looking dignified in a long black robe, on an elevated platform, with the lawyers before him or her. Access to justice is not a Kabuki show—the ceremony of justice but not the reality. But to those accused of misdemeanor offenses in the Bronx, a court proceeding is just a hollow ritual. According to the lawsuit filed by The Bronx Defenders, Emery Celli Brinckerhoff & Abady, and Morrison & Foerster, there are few trials, no opportunity to confront witnesses, no way to challenge the government's case, no opportunity to be publicly vindicated in a speedy proceeding, and unconscionable delays.

An op-ed by Nancy Gertner. When we talk about political corruption, what often comes to mind is what the law calls “quid pro quo”: I give a politician money and in exchange he or she gets me a government contract or votes in my favor. But there is a continuum of quid pro quo exchanges, some plainly illegal, some not and some ambiguous. In the case of former Virginia governor Robert McDonnell, the Supreme Court will decide whether it is constitutional to prosecute a public official for conduct on that continuum, conduct never before determined to be at the illegal end. The issue is not whether we should regulate gifts to public officials; the issue is whether the criminal law can be used as a bludgeon when we have not done so. I think not. As a matter of due process, criminal prosecutions can be brought only when we have clearly defined what is legal and what is not.

There’s a new, deeply troubling, report about misconduct at a state drug testing lab. The report by Attorney General Maura Healey alleges that Amherst chemist Sonja Farak got high off of drugs she took from the lab nearly every day for eight years...Guests...Nancy Gertner, WBUR legal analyst, retired federal judge, Harvard Law School professor.

Cameras, for pictures or video, aren’t allowed in federal courtrooms – even in high-profile cases like those of terrorist Dzhokhar Tsarnaev and mobster James “Whitey” Bulger. Retired Massachusetts federal court judge Nancy Gertner wants the restriction to be lifted. Speaking Thursday morning at a breakfast of the Worcester County Bar Association, Ms. Gertner referred to her years as a trial lawyer in state courts, where cameras are allowed. She said a camera never interfered with proceedings.

An op-ed by Nancy Gertner and Jack Corrigan. The Globe reported Sunday that Boston Mayor Martin J. Walsh wouldn’t say whether he had been a grand jury witness in a federal investigation into the tactics of Boston Building Trades unions. Since then, many have chided him for not being more forthright. But that misses a critical point: Grand jury proceedings are supposed to be secret. Government agents are bound by strict confidentiality rules. They may not disclose who has been called, when they testified, or what the subject was; they are barred from releasing information about wiretaps or other evidence they have assembled. While witnesses may speak about their testimony, they do receive a letter from the government with their subpoena that strongly urges them not to do so to protect the integrity of the grand jury investigative process. And that “suggestion” is particularly important in this probe and one that Walsh was right to heed.

A new U.S. Supreme Court ruling could mean that hundreds of people convicted of violent felonies — including some in Massachusetts federal court — will be re-sentenced. The 7-1 vote involves the case Welch v. United States. The justices ruled that a decision in a previous case about federal sentencing will apply to those who’ve already been sentenced or those whose cases are closed. Former Massachusetts federal Judge Nancy Gertner says the ruling shows that the justices are chipping away at mandatory minimum sentencing.

On Wednesday at Harvard Law School, experts in forensic psychology, law, and juvenile justice policy discussed the Supreme Court’s decision to retroactively apply a recent ruling to ban mandatory life without possibility of parole for some 2,000 incarcerated juvenile homicides. The event, which drew a large audience, was held as a part of the Project on Law and Applied Neuroscience, a collaboration between Massachusetts General Hospital and the Law School...“When the Supreme Court eliminated mandatory life without parole for juvenile homicides, it was unquestionably an earth shattering decision,” Judge Nancy Gertner, the moderator of the discussion and a lecturer at the Law School, said. “Given the plasticity of the juvenile brain, they ought to be sentenced to something that enables a right to hope.”...Panelist Robert T. Kinscherff, senior fellow in law and neuroscience at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at the Law School, said that high rates of juvenile homicides in the late 1980s and early 1990s led to the rise of a perception by the public of the teenage “super-predator,” which influenced opinions around juvenile sentencing. “The fear of the future was that these teen super-predators were remorseless, heartless, highly violent, and were going to somehow attack us at our castle walls and bring us all down,” Kinscherff said. “It was heard in the legislature, and elsewhere, that if you’re old enough to do the crime, you’re old enough to do the time.”

The New England Center for Investigative Reporting earlier this week published an article detailing the many instances in which Massachusetts prosecutors “have violated defendants’ rights to a fair trial regularly and without punishment.” These violations, according to NECIR, range from prosecutors failing to turn over important evidence to defense lawyers or to disclose information bearing negatively on witness credibility, to prosecutors misrepresenting evidence in their closing statements to the court. ... Nancy Gertner, a retired federal judge and a professor at Harvard Law School, said in an email that prosecutors can be held responsible for misconduct in-house through “demotion, suspension, censure." They can also be held accountable from the “outside, i.e. through the ethical rules governing counsel.”

The Supreme Judicial Court of Massachusetts heard arguments Tuesday on three major cases. Judge Nancy Gertner joins us to analyze their impact. We first delve into the use of mandatory minimums in drug sentencing. The case centers around a 1996 state law that the lawyers for the defendant say gives judges discretion to sentence outside of mandatory minimums. However, the Middlesex County District Attorney disagrees. The second looks at the Shrine of Our Lady of La Salette in Attleboro. The shrine sits on almost 200 acres of land and attracts thousands of visitors each year, especially during the Christmas season with its “Festival of Lights.” In 2012, the Shrine received a tax bill from the town, but the case argues religious organizations should be tax exempt.