Nancy Gertner

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.

President Obama announced his nomination to the high court is Merrick Garland, currently the chief judge of the D.C. Circuit Court of Appeals...Judge Nancy Gertner, senior lecturer at Harvard Law School and former Massachusetts federal judge.

...The committee’s report sent shockwaves through the legal system, and forensic science is now grinding toward reform. A series of expert working groups, assembled by the National Institute of Standards and Technology (NIST) and the Department of Justice, has begun to gather and endorse standards for collecting and evaluating different kinds of evidence...Some judges are already pretty savvy about statistics. In the Boston racketeering case, federal district court judge Nancy Gertner found the detective’s conclusion that only one gun on the entire planet could have produced the imprints on the bullet cartridges “preposterous.” She believed the evidence should have been excluded completely. But Gertner—now a professor at Harvard University—feared that an appeals court would reverse that move, so she “reluctantly” ruled that the detective could describe ways in which the bullet casings looked similar, but not conclude that they came from the same pistol. Ultimately, a jury said there was no evidence of a racketeering operation; Gertner cleared the defendants of the more serious federal charges and their cases were moved to state court.

When starting a semester, Harvard Law School (HLS) Professor Carol Steiker likes to ask her first-year criminal law students to describe what they think are the biggest societal changes of the past 40 years. The students often cite the rise of social media, or global warming, or same-sex marriage. Then it’s Steiker’s turn. “I show them the statistics,” said Steiker, the School’s Henry J. Friendly Professor of Law, “and they are stunned.” Her numbers show mass incarceration in the United States...The Sentencing Reform Act of 1984, part of the Comprehensive Crime Control Act, enacted a sweeping revision of the criminal code. The legislation established the U.S. Sentencing Commission and tasked it with providing guidelines to federal courts — a radical shift in policy, since judges previously had wide discretion in sentencing. The commission introduced mandatory sentencing for various crimes and eliminated federal parole for some cases, immediately boosting prison rolls. Instead of improving fairness in sentencing, as was intended, the new system wound up promoting inequality, says HLS lecturer Nancy Gertner, herself a former federal judge. Judges suddenly had to hand down standard sentences to those convicted of some specified crimes who had particular criminal histories...In addition, court systems around the country increasingly are outsourcing their probation operations to private firms that make money by charging offenders extra fees. “The private company may have little or no interest in achieving justice,” said Jacob Lipton, who leads Harvard’s Systemic Justice Project along with HLS Professor Jon Hanson.

Judge John Coughenour is a rebel. It’s not because—or not only because—he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s...Nancy Gertner, a Harvard Law professor and former federal judge, wrote in 2010 that judges were “surgeons without Grey’s Anatomy.” And that is the crux of the opposition to Coughenour’s argument: For too long Americans exclusively trusted the wisdom of judges who, of course, were just as a fallible as anyone else. Besides, it was judges themselves who became the first proponents of reform.

An op-ed by Nancy Gertner: I did not know Justice Antonin Scalia. Following the announcement of his death, I could not help but be struck by the accounts of his warmth, his friendships (notably with Justice Ruth Bader Ginsberg, with whom he regularly disagreed on the Supreme Court), his deep religious commitment, his infectious sense of humor. I knew him through his opinions, books, and speeches. Even though I disagreed with him much of the time, one thing is clear: His legal positions could not be ignored — not by lawyers, scholars, judges, nor the public. I had to take them seriously in my own judicial decisions and in my writing. And the need to deal with his arguments shifted the debate, even the outcomes.

Another departure at the Supreme Judicial Court means Gov. Baker could reshape the state’s highest court. Justice Fernande Duffly is planning to retire this summer. It’s the third retirement announced in the past week — joining Justices Francis Spina and Robert Cordy. Two other justices will reach retirement age before Baker’s term ends, which means that the governor would appoint five justices to the seven-member panel. Guest: Nancy Gertner, Harvard law professor and retired federal judge.

Almost all the major figures featured in the Netflix documentary Making a Murderer have been interviewed by various media outlets since the series premiered last month except for the man at the center of it all: Steven Avery. One reason for his absence: the Wisconsin prison system has so far declined to connect journalists to Avery."We are not facilitating interviews out of respect for the victims," Joy Staab, director of public relations for the Wisconsin Department of Corrections told The Hollywood Reporter on Tuesday...Harvard Law School professor and retired federal judge Nancy Gertner also said the explanation from the department of corrections was a new one for her. "According to very old law, the prison has a right to exclude cameras from the facility, but not to deny you a visit with a prisoner" [for an interview], Gertner said in an email. "But they have to be making decisions based on institutional concerns, concerns relating to the prison, not 'out of respect for the victims.'”

Corruption in politics is as old as government itself. But so has been the challenge of interpreting in law what corruption actually means. On Friday, the U.S. Supreme Court was scheduled to discuss whether to take up a case that could further sharpen the line that a government official must cross to be convicted of bribery. The case that justices are considering — the conviction of former Virginia Gov. Bob McDonnell and his wife, Maureen — is one awash in shades of gray. And if the high court agrees to take it up, the McDonnell case has the potential to further limit the scope of federal bribery laws used to prosecute malfeasance...Former federal judge Nancy Gertner and Harvard law professor Charles J. Ogletree are also critical of the prosecution’s case. In a friend-of-the-court brief, they and other legal scholars argued that the conviction conflicts with the Supreme Court’s Citizens United ruling on campaign finance. “While Citizens United dealt expressly with political activity protected by the First Amendment, its dicta went further— suggesting that money in exchange for ‘ingratiation’ or ‘access’ is part and parcel of American politics,” their brief says.

Boston-area universities are closely watching a Supreme Court case that could derail the use of race in admissions, a practice that several universities, including Harvard and MIT, say is fundamental to creating a diverse student body....a strong ruling one way or the other would create a “powerful atmospheric and cultural impact” on private schools, said Harvard Law School professor Lawrence Tribe. “Then the impact on privates would be indirect but massive,” Tribe said, but he explained that a ruling striking down race-based affirmative action is unlikely. Another legal analyst said a ruling against affirmative action would be a “body blow” to the many recent efforts to increase diversity. “The events of the past two or three years have made it clear that we have to be proactive about addressing equal opportunity and addressing racial attitudes,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

...“We can stay out a little longer,” [Owen] Labrie tells me after lunch. With glasses, an untucked shirt and a sweater, the 20-year-old has the casual mien of a college student, but Labrie is not in school. He was supposed to be a sophomore at Harvard by now. Instead, he’s on a kind of parole, with a strict curfew. The former prep school superstar was convicted earlier this year on misdemeanor and felony sex charges involving a younger girl, and he has to get to his mother’s soon, or he’ll be subject to arrest. ... You can understand prosecutors wanting to use the Internet predator statutes to widen the scope of their investigation of Labrie. It allowed them broader subpoenas. It was a wrench in their toolbox, and they used it. “But that’s a total dodge,” says Nancy Gertner, a Harvard Law professor, Democratic appointee to the federal bench and a women’s rights attorney who is not the only feminist troubled by Labrie’s case, especially how it began as a three-week plea deal and ended up as a felony and a lifetime on the sex registry. “They had discretion.”