Nancy Gertner

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now-famous face...Harvard Law School professor and former federal judge Nancy Gertner finds the rule incredibly out of date and inconsistent with the modern media landscape, which relies on much more than a pen and paper.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.”

An op-ed by by Nancy Gertner and Harvey Silverglate. According to the claims of the US Attorney’s office in Boston, the goal behind the continuing grand jury investigation into the Probation Department scandal is to get at the truth. Truth? First, let’s be honest about the grand jury. Despite its well-intentioned origins, the grand jury has become an instrument of the prosecutor, not an independent fact finder. To put “the truth” in the same sentence as “grand jury investigation” should surely raise some eyebrows, particularly after recent grand jury proceedings against police officers, some of which left much to be desired in terms of independence.

An op-ed by Nancy Gertner. The National Commission on Forensic Science was formed in response to widespread concerns that forensic evidence that lacked any meaningful scientific basis was being regularly permitted in trials. The concerns were not just about the “expert” witnesses, but about the judges who, according to the National Academy of Sciences report that led to the commission’s creation, have been “utterly ineffective” in assessing the quality of research behind the evidence. The evidence used to win convictions has often been based on bad science. In about half of the cases in which D.N.A. evidence led to exoneration, invalid or improper forensic science contributed to the wrongful conviction.

Khairullozhon Matanov deliberated with his attorneys three times before hesitantly pleading guilty yesterday to all four counts of obstructing the 2013 investigation into the Boston Marathon bombing. This was not an easy decision for him to make. “The whole case is mystery,” he wrote to The Daily Beast last fall. “FBI is trying to destroy my life.” If Judge William Young agrees to the deal, he’ll get 30 months in prison, including 10 months he’s already served. If he goes to trial and is found guilty, he could spend the next 20 years behind bars...“There is no obligation to turn in your neighbor,” explains former federal judge and Harvard law professor Nancy Gertner. “It is a crime not to tell on your neighbors in Soviet countries, but not here.”

An op-ed by Nancy Gertner. Suffolk County District Attorney Daniel F. Conley referred to himself as the “skunk at the garden party” at the Second Annual Massachusetts Criminal Justice Reform Coalition Summit, when he called for the continuation of mandatory minimum drug sentences. The summit was designed to bring together experts from all quarters, to look critically at incarceration, using advances scientific research to address issues that have too often been shouted in legislative sound bites or strident political debates. In this very thoughtful setting--with all voices decrying mandatory minimum drug sentence--Conley's "skunk" reference doesn't begin to describe his remarks.

Bob McDonnell suddenly has a lot of friends. An unlikely coalition of current and former politicians from both parties, prominent legal scholars, and even retired federal judges has gone to bat for the former Virginia governor in his appeal of federal corruption charges...Another brief, signed by retired judge Nancy Gertner and Charles Ogletree, a former professor of and mentor to President Obama and first lady Michelle Obama, argues that the definition of official acts used to convict the former governor is “ill defined” and “unconstitutionally vague.” Gertner told Politico that she believes the issue of what acts and what receipts constitute corruption raises an important constitutional question and could end up in the Supreme Court. Though she understands that people may be “uncomfortable” with the size of the gifts, she does not believe that the former governor’s actions met the quid pro quo requirement. “The theory of the prosecution was too broad,” Gertner said.

Former Virginia Gov. Robert McDonnell’s appeal has spurred some unusual alliances. John Ashcroft, attorney general under President George W. Bush, and Gregory Craig, who spent several years as counsel to President Barack Obama, found common ground in arguing that McDonnell was wrongfully convicted...Harvard Law School professors Nancy Gertner, a former federal judge, and Charles Ogletree Jr., along with John Jeffries Jr. of the University of Virginia School of Law, filed a brief together. Represented by William Taylor III of Zuckerman Spaeder, they wrote that previous U.S. Supreme Court cases showed the “erroneous breadth” of the trial judge’s jury instructions.

“Sir, when did you first meet Tamerlan Tsarnaev?” asks prosecutor Mary Kelly. It’s the fall of 2013 and Mustafa Ozseferoglu, then 29 years old, is sitting before the U.S. Immigration court in Boston with his hands cuffed behind his back and a chain tied around his waist. He’s representing himself...Even though the appeals court argued that Ozseferoglu had an “obligation” to come forward, failing to inform on your old co-workers is not a crime. “It is a crime not to tell on your neighbors in Soviet countries but not here,” according to former federal judge and Harvard law professor Nancy Gertner.

Dzhokhar Tsarnaev’s defense attorney, Judy Clarke, stunned a packed courtroom in Boston this week when she admitted that her client committed the Boston Marathon bombing and is responsible for a “series of senseless, horribly misguided acts.”...“Some juries come to a guilty verdict, but then exercise leniency in the second phase,” said Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School. “If you plead guilty, you lose that compromise possibility.” In federal death-penalty cases, juries must go through two related trials: the first to decide if the defendant is guilty and the second to decide if the defendant, once found guilty, should be sentenced to death.

While multiple requests by the defense team of Dzhokhar A. Tsarnaev, the main suspect in the 2013 Boston Marathon bombings, to relocate his trial have been denied, some Harvard Law School professors say the defense had legitimate qualms with the trial unfolding in Boston...“If there ever were a case for a change of venue, this is it,” said Nancy Gertner, a faculty member at the Law School and former U.S. District Court Judge for the District of Massachusetts. Law school professor Ronald S. Sullivan Jr. attributes the defense’s repeated requests to relocate the trial to the far-reaching impact that the bombing and the subsequent manhunt had on the Boston community...According to Harvard Law School professor Alex Whiting, judges deciding whether or not to relocate a trial must weigh a set of “competing interests.”

Almost two years after a pair of homemade bombs brought terror and carnage to the Boston Marathon, the trial of Dzhokhar Tsarnaev opened on Wednesday with the dramatic admission by his lead defense lawyer that her client had in fact set off the blasts that killed three people and injured scores of others. ... Nancy Gertner, a former judge who teaches at Harvard Law School, called it brilliant. By conceding that her client had committed the crimes, Ms. Gertner said, Ms. Clarke was trying to limit the painful, graphic details the government could bring up to undermine any sympathy for Mr. Tsarnaev. Because Ms. Clarke is not disputing the crimes, Ms. Gertner said, those details are no longer relevant. “The question now is, how far will the government go to prove what she has essentially conceded?” Ms. Gertner said.

...As the courtroom drama begins this week, important questions of justice and of healing hang in the balance...I ventured to Harvard Law School to discuss them with Prof. Nancy Gertner, a civil rights lawyer, who served 17 years as a U.S. district judge in Boston. She recalls that agonizing week of shock, first responders and memorial services. "The city rose up to shore each other up at every public event, at every opportunity and the stories of people helping one another are legion. So it was remarkable in that respect and what I hope is that legal system lives up to those standards, this extraordinary admirable result."

Two high-profile trials are in the spotlight in Massachusetts, but one will be devoid of photographs and video from inside the courtroom. While cameras are documenting every move in the murder trial of former New England Patriots player Aaron Hernandez in Fall River Superior Court, artist’s sketches will offer perhaps the only visual glimpse inside the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev, a former UMass Dartmouth student. “I think it’s outrageous there are no cameras allowed in the federal courts,” said retired federal judge Nancy Gertner, who now teaches at Harvard Law School. “It doesn’t make sense, and in my view, it’s actually a scandal.”

The University of Virginia held a two-day conference last February on “Sexual Misconduct Among College Students.” One of the speakers was the Education Department’s Assistant Secretary for Civil Rights, Catherine Lhamon, who touted her office’s efforts to compel colleges and universities, under pain of losing federal funds, to adopt draconian policies on sexual harassment and assault. These policies have raised serious concerns about due process and basic fairness for the accused, and an audience member asked Ms. Lhamon how she planned to deal with such “push-back.” Her reply: “We’ve received a lot of push-back, and we need to push forward notwithstanding.” The recent experience of Harvard Law School demonstrates the value of pushing back...Most institutions yield to OCR’s pressure without significant dissent. But at Harvard, 28 law professors—including liberal luminaries Elizabeth Bartholet, Alan Dershowitz, Nancy Gertner, Janet Halley, Duncan Kennedy and Charles Ogletree —signed an open letter, published in the Boston Globe, in which they described the new policies and procedures as “inconsistent with many of the most basic principles we teach.”...Still, the law school’s new procedures are a significant improvement over the university’s, and they promise more fairness than the kangaroo-court systems many universities have adopted under OCR pressure. The investigation of Harvard College is still under way, and the university could do far worse than to follow the lead of Harvard Law, the school that pushed back.

While U.S. Supreme Court opinions are routinely examined through the political lens of the court’s nine justices, far less is known about the ideological makeup of the thousands of judges on the nation’s federal and state benches...Now, research from Maya Sen, an assistant professor of public policy with the Ash Center for Democratic Governance and Innovation at Harvard Kennedy School (HKS), and Adam Bonica, an assistant professor of political science at Stanford University, sheds some light on the opaque world of politics in the judiciary...[Nancy] Gertner said the research “comports” with her view that Republican presidents such George W. Bush selected conservative judges, but Democratic presidents, including Clinton and Barack Obama, J.D. ’91, largely pulled their punches in an effort to sidestep contentious confirmation processes...Charles Fried, the Beneficial Professor of Law at HLS, said the research documents what is already known: that politics has always played a decisive role in judicial appointments.

Virginians rightly disgusted by the sleazy behavior of ex-Gov. Bob McDonnell need to brace for the possibility that he and his wife could eventually be fully cleared on appeal even though they were convicted of a total of 19 corruption felonies....“None of the case law up until that point, nothing in the statute, would have suggested that introductions and access were criminal,” Nancy Gertner, a former federal judge who now teaches law at Harvard, said. She and a Harvard colleague wrote a brief supporting McDonnell. “The criminal law has to be clear. It has to give notice. Otherwise, every politician is vulnerable to an ambitious prosecutor,” said Gertner, who was appointed to the bench by President Bill Clinton.

An op-ed by Nancy Gertner. Questioning prospective jurors is tedious. The press usually ignores it. In Massachusetts, few judges or lawyers pay much attention to it. One judge bragged about the speed with which he picked a jury: “Ten minutes, tops, no matter what the case is.” But with the two high-profile cases of Dzhokhar Tsarnaev and Aaron Hernandez , all eyes are on jury selection. A new state statute and guidelines from the Massachusetts Supreme Judicial Court may forecast a new approach for state courts — permitting jurors to be questioned by lawyers, not just judges, and on a broad range of issues — but only for cases after Feb. 1.