Nancy Gertner

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.”  

After six days of evidence heard from 16 witnesses in the St. Paul’s School rape trial, the jury has acquitted 19-year-old Owen Labrie of three felony charges of sexually assaulting a now 16-year-old fellow former student at the New Hampshire prep school. ... As of 1995, the state determined that a person is guilty of sexual assault if “the victim indicates by speech or conduct that there is not freely given consent.” “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,” Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, told The Daily Beast.

The federal agency that enforces workplace discrimination regulations ruled that civil rights law protects gays and lesbians, citing a Massachusetts lawsuit filed more than a decade ago, among other cases...In a ruling in 2002, US District Court Judge Nancy Gertner denied the Postal Service’s bid to have the suit thrown out on the grounds that Title VII did not specifically mention sexual orientation...Gertner, who has retired from the bench and teaches at Harvard Law School, said Tuesday night that the commission ruling in the Miami case is the first time the agency has explicitly said the Chapter VII provision against sex discrimination applies to sexual orientation. “It is a big deal,” she said, adding that while the ruling does not affect Massachusetts, which has protections for gays and lesbians, “it would matter nationwide.”

Former Federal Judge Nancy Gertner was appointed to the federal bench by Bill Clinton in 1994. She presided over trials for 17 years. And Sunday, she stood before a crowd at The Aspen Ideas Festival to denounce most punishments that she imposed. Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said...No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

An op-ed by Nancy Gertner. The government focused on the claim that Boston Marathon bomber Dzhokhar Tsarnaev did not show remorse for his heinous, unimaginable crime until last week’s sentencing proceeding. That, counsel suggested, was too little, too late. Why was Tsarnaev silent during the penalty phase, when his life was on the line, only to speak after the jury chose death, when it no longer mattered? The sealed docket entries, the arguments of counsel, the documents that have been kept from the public, may hold the clue.

This is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?...“If there’s no social consensus about what the lines are,” says Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, then affirmative consent “has no business being in the criminal law.”...“It’s an unworkable standard,” says the Harvard law professor Jeannie C. Suk. “It’s only workable if we assume it’s not going to be enforced, by and large.”

Retired federal Judge Nancy Gertner joined WBUR to discuss Dzhokhar Tsarnaev’s apology to bombing victims and Wednesday’s sentencing hearing.

More than two years after he and his brother planted two bombs on the Boston marathon finish line, and following a months-long trial that sentenced him to death, Dzhokhar Tsarnaev broke his silence for the first time—to apologize....But will his last minute apology save his life? Former federal judge Nancy Gertner says maybe. “He couldn’t make it worse. He could only make it better,” says Gertner, a professor at Harvard Law School. “The defense really has to humanize Tsarnaev at every turn.”

An op-ed by Nancy Gertner. In 1924, Clarence Darrow represented Nathan Leopold and Richard Loeb, men accused of a senseless, thrill killing of a young man. The defendants were well off, raised in comfort; Leopold was about to enter Harvard Law School. They were 19 and 18, respectively, at the time of the homicide. The victim was Robert “Bobby” Franks, just 14 years old. Given the publicity, which was unheard of for the time, Darrow counselled his clients to plead guilty and throw themselves on the mercy of the judge, rather than have a jury decide their fate. He conceded that he did this because he was afraid to submit the case to a jury. (Each received a sentence of life imprisonment plus 99 years.) Dzhokhar Tsarnaev did not have that option. The federal death penalty statute that was reinstated in 1988 (and expanded in 1994) required a jury to decide the aggravating and mitigating factors that determine the death penalty. A defendant can waive the death penalty jury and go before a judge, as Darrow’s clients did, but only with the prosecutor’s agreement. The prosecutors in Tsarnaev’s case would not agree.

Former Judge for the U.S. District Court for Massachusetts Nancy Gertner and former U.S. Attorneys for the District of Massachusetts Donald Stern and Michael Sullivan form our legal caucus and discuss the aftermath of the death sentence for Tsarnaev in Boston.

An op-ed by Nancy Gertner. We all chose death for Dzhokhar Tsarnaev. Make no mistake about it. The death penalty law was passed in our name. Attorney General Holder and US Attorney Carmen Ortiz are employed by the government we elected. They sought death for Tsarnaev for the victims, including the Richard family, whose tragedy they highlighted, even though the Richards were opposed to Tsarnaev’s death. The government sought it for Boston — also a victim — even though the majority of the citizens of the city opposed it. The verdict in the United States v. Tsarnaev was literally brought in our name.

An op-ed by Nancy Gertner. The anti-shackling bill passed last year abolished the barbaric practice of putting restraints on incarcerated women who are pregnant and sought to create a minimum level of care for pregnant women in correctional facilities. When the bill was signed into law, Marianne Bullock of the Prison Birth Project said the next challenge would be to ensure the law is enforced. That challenge still needs to be met.

A Massachusetts man imprisoned for 30 years for a crime he says he didn't commit is asking for a new trial after the FBI admitted making serious mistakes with one of the few pieces of physical evidence in the case. ...Retired federal judge Nancy Gertner, who has written about faulty forensic science, called the FBI's review of old hair analysis cases "extraordinary." She credited the FBI for launching the nationwide review. "We're not talking about a minor mistake. We're taking about a mistake that implicated a man's liberty," Gertner told 5 Investigates' Karen Anderson. "Before DNA we didn't know what the truth was."

Relatives of Boston Marathon bomber Dzhokhar Tsarnaev are under federal government protection in a Revere hotel, officials said Friday, and are widely expected to assist the defense team as it prepares to present its case next week that Tsarnaev should be spared the death penalty....“So far Dzhokhar Tsarnaev is a cardboard figure for the jury,” said former federal judge Nancy Gertner, who now teaches at Harvard Law School. “Anything that humanizes him is a good thing for the defense.”

An op-ed by Nancy Gertner and John Reinstein. DNA testing and videotaping of police-citizen encounters may have more in common than you might think. Both show not what arguably happened but what is true (or as close to true as we can get). DNA exonerations have enabled us to examine the behavior of lawyers, judges and prosecutors in order to understand how a wrongful conviction happened. Videotaping of police-citizen encounters could well do the same for policing and civil rights challenges to police misconduct.

The same federal jury that convicted Dzhokhar Tsarnaev for bombing the 2013 Boston Marathon must now decide his sentence: life without parole or death by lethal injection...."He's going to be on death row for decades," says Prof. Nancy Gertner, a former federal judge who teaches at Harvard Law School. "There will be multiple appeals. Looking at it realistically, he's going to die in prison one way or the other."

For the second time in less than a year, the Yale School of Medicine is embroiled in charges of sexual harassment. A nephrology professor, Dr. Rex L. Mahnensmith, who worked at the university for over 20 years, has been accused of a pattern of sexual harassment while he was medical director of the New Haven Dialysis Clinic, where university physicians treat their patients...Nancy Gertner, a retired federal judge who teaches at Harvard Law School, said universities that might have looked the other way when confronted with such accusations were “all of a sudden finding that there’s a realistic risk of losing funding if they don’t take complaints seriously.”

When the jury in the trial of Boston Marathon bomber Dzhokhar Tsarnaev rendered their guilty verdict Wednesday afternoon, there was one thing that eluded even the most avid followers of the coverage: a look at Tsarnaev’s now-famous face...Harvard Law School professor and former federal judge Nancy Gertner finds the rule incredibly out of date and inconsistent with the modern media landscape, which relies on much more than a pen and paper. “It’s preposterous and it says something more about the power of the leadership of the federal courts to block this in the face of congressional pressure, public pressure, the pressure of some judges,” Gertner said. To Gertner, the arguments against cameras aren’t based on the realities of the situation. “Everyone sees the issue in terms of O.J. Simpson, which is absurd,” she says of opponents who fear that broadcasting a trial could result in a media frenzy that alters the outcome. “It’s absurd on so many levels. One, because that was a badly tried case. Two, because the cameras were much more intrusive in that case. It was 20 years ago.”

An op-ed by Nancy Gertner. The first phase of the trial of Dzhokhar Tsarnaev was supposed to be about liability. In reality, it felt like a penalty hearing, albeit in slow motion. Now that Tsarnaev has been found guilty for his role in the 2013 Boston Marathon bombing, the jury will deal directly with the only critical question — should Tsarnaev get life in prison or the death penalty? But, even at this late stage, the real question is: Why was this trial necessary? Why did the US attorney general insist on the death penalty here, while calling for its moratorium elsewhere? Why did the US government press for the death penalty when the defendant would have pled to life without parole? That was, after all, the defense message from the outset with the opening statement of Judy Clarke, Tsarnaev’s lawyer — “it was him.” “We will not sidestep Tsarnaev’s responsibility for his actions,” she said, actions which were “incomprehensible” and “inexcusable.”