Nancy Gertner

...“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.”  

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.