Nancy Gertner

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.”

Nineteen Harvard Law professors have written a letter condemning "The Hunting Ground," a film purporting to be a documentary about campus sexual assault. The film has been getting some Oscar buzz, and CNN is preparing to air the program next week. In a press package for the film, CNN singled out a story in the film about a sexual assault accusation at Harvard. The press packet named the accused student, even though he was not identified in the film. The 19 professors want to be sure viewers are aware that the film is highly misleading...The 19 professors include feminist icon Nancy Gertner; outspoken critics of campus rape hysteria Elizabeth Bartholet, Janet Halley and Jeannie Suk; as well as President Obama's former mentor Charles Ogletree.

An op-ed by Nancy Gertner. Over a 17-year judicial career, I sent hundreds of defendants to jail — and about 80 percent of them received a sentence that was disproportionate, unfair, and discriminatory. Mass incarceration was not an abstraction to me. Sadly, I was part of it. Last weekend’s release of 6,000 prisoners from federal prison is an encouraging start to reform, but it’s only a start.

From the day he took up residence at Shawna Payne’s Brookline apartment eight years ago, Dino had problems...“This bird has an extraordinarily annoying screech,” said Nancy Gertner, a retired federal judge and a senior lecturer at Harvard Law School. She said she first hoped to trap Dino and return him to Payne, but would now be satisfied with chasing him off for good...Some neighbors, she said, are worried that Dino, a Goffin’s cockatoo, native to Indonesia, won’t survive the winter outside. “Candidly, we are no longer concerned about that,” Gertner said.

Mayor Martin J. Walsh’s internal probe of a potential Teamsters-City Hall nexus is likely to zero in on whether any city employees played any criminal roles or broke ethical rules, according to a former federal judge. “They want to get the bottom of whether there was anything criminal” done by city workers, former federal judge Nancy Gertner said. She added: “And if it’s not criminal, it still may not be good government.”

Starting college can be a scary, confusing time in a person’s life. You’re often away from your family for the first time. You have to figure out a major, and the kind of career you will want after college. You need to make new friends and create a new social circle. But what scares ‘Andrew’ (not his real name), a freshman at Tulane University in Louisiana, the thing that most concerns him about going to college is sexual assault—not being a victim of it, but being wrongly accused of committing it...“What’s most interesting about this case is that it would not have been brought ten years ago, and not because of any changes in law but because of changes in attitude,” Harvard Law lecturer and former judge Nancy Gertner told the The Daily Beast of the “froze” in fear justification the victim used for not telling Labrie to stop...In the past year, law professors at Harvard University and the University of Pennsylvania have openly opposed administrative changes to sexual assault policy. Harvard Law professor Elizabeth Bartholet told The Daily Beast, “there’s the risk we will find a lot of people responsible for sexual assault when they shouldn’t be."

A panel of legal and medical scholars and practitioners agreed in a panel discussion on Monday night that the American criminal justice system does not give adequate consideration to the cognitive underdevelopment of adolescents...A standing-room-only crowd of about 100 people packed the Wasserstein Hall classroom at Harvard Law School for the discussion entitled “From Troubled Teens to Tsarnaev: Promises and Perils of Adolescent Neuroscience and Law.” The event, hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, was the center’s first of the year. “Our country is going through a profound movement toward the punitive,” said Nancy Gertner, a senior lecturer at the Law School.

A bill being considered in the House that would prohibit colleges from punishing students accused of sexual assault without first notifying law enforcement officials has provoked the first major wave of protests from student activists and advocacy groups since the school year began...But Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, argues that these campus sexual assault cases should be tried on campus. “I think there’s an overlapping jurisdiction—when you’re talking about a campus in a small community, you can talk about behavior that is beyond the pale in that small community for those four years,” she said. “Whether you follow that through in the larger, non-campus community with consequences is a different issue.”

The night out on Martha’s Vineyard in July 2014 probably seemed innocuous at the time — a gathering over lobster rolls, a documentary screening at the local film society, followed by a panel discussion about the film. But a year later, concerns about US Senior District Judge Mark L. Wolf’s interactions that night have disrupted perhaps the most high-stakes case pending in federal court in Boston: Wolf is weighing whether his involvement as the film panel moderator, and his interactions with a panelist who may now be a witness in the death penalty trial of serial killer Gary Lee Sampson, have created an appearance of a conflict of interest so strong that he should recuse himself from the case. ... Nancy Gertner, a retired US District Court Judge who now teaches law at Harvard University, said that “the rules of recusal have to be reasonable.” “Judges don’t live in a vacuum, and there are a range of issues that come up, and where does this sit on that range?” she said. “If appearance is interpreted as anyone might see a problem, that’s a standard that is way too big. It has to be a standard of reasonableness.”