Nancy Gertner

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.

A group of 38 Harvard Law School professors have signed a letter “in support of” Law School professor emeritus Alan M. Dershowitz, who was recently accused of having sexual relations with a minor who was allegedly trafficked by billionaire Jeffrey E. Epstein...A group of three Law School faculty members—Nancy Gertner, Charles J. Ogletree, Jr., and Philip B. Heymann—began the effort to write the letter in support of their colleague late last week, Gertner and Heymann said...In an interview, Heymann said he took issue with how “Jane Doe No. 3’s” lawyers presented their allegations against Dershowitz. "[The allegations have] been set up, either purposely or by accident, I don't know which, in a way that denies him all opportunity to defend his reputation [in court]," Heymann said, adding that "he can say it, but to have the [charges] resolved officially [in court] has been put out of reach."

Two Harvard Law School professors -- one a former federal judge -- and a national defense lawyer organization want to help former governor Bob McDonnell win bond pending his appeal...Nancy Gertner, a former federal judge in Massachusetts now a senior lecturer at the Harvard Law School, and Charles J. Ogletree, who also teaches there and is the executive director of the Charles Hamilton Houston Institute for Race and Justice, filed papers Tuesday siding with McDonnell...In their brief filed Tuesday, Gertner and Ogletree wrote that they intend to file a brief urging McDonnell's convictions be reversed and argue that the "official act" question is a substantial one.

One by one, the remaining potential jurors in the case against Boston Marathon bombing suspect Dzhokhar Tsarnaev will go before the court for questioning beginning Thursday...“The idea is to find out the jurors that have opinions that really will be an obstacle to being fair,” says Harvard Law professor Nancy Gertner, who has years of experience questioning prospective jurors as a criminal defense attorney and then as a federal judge.

An article by Nancy Gertner. Campus sexual assaults are horrifying, made all the worse because the settings are bucolic and presumed safe—leafy campuses, ivy-walled universities. Assaults are reported in dormitories, off-campus apartments, and fraternity houses, in elite and non-elite institutions, from one end of the country to the other. Title IX (of the Education Amendments of 1972) was supposed to promote equal opportunity in any educational program receiving federal money. But until recently, Title IX was dormant and largely ignored....Just as the complainants must be treated with dignity and their rights to a fair resolution of their charges be respected, so too must those accused of sexual misconduct. You don’t have to believe that there are large numbers of false accusation of sexual assault—I do not—to insist that the process of investigating and adjudicating these claims be fair. In fact, feminists should be especially concerned, not just about creating enforcement proceedings, but about their fairness.

The man charged with the terror attack near the finish line of the 2013 Boston Marathon goes on trial Monday in a federal courthouse less than two miles from where two bombs, concealed in backpacks, exploded with devastating force...Nancy Gertner argues that legal appeals would take years and that executions are on hold because of uncertainty about lethal drugs. "He's going to be on death row for decades. There will be multiple appeals," Gertner said. "Looking at it realistically, he's going to die in prison one way or the other if he's convicted. So this really is a ceremony that doesn't make sense." Under such a scenario, the judge would conduct a sentencing hearing, which Gertner said would give those most affected by the bombings a chance to speak: "It would enable the victims to have a platform to talk about the extraordinary pain that they endured, which is a different platform than would be at a trial."

A letter by Nancy Gertner. Judge Jed S. Rakoff’s article “Why Innocent People Plead Guilty” [NYR, November 20, 2014] is spot on, but doesn’t go far enough. True, we have a federal plea system, not a trial system. True, to call the process “plea bargaining” is a cruel misnomer. There is nothing here remotely like fair bargaining between equal parties with equal resources or equal information. The prosecutors’ power—as Judge Rakoff describes—is extraordinary, far surpassing that of prosecutors of years past, and in most cases, far surpassing the judge’s. Judge John Gleeson, a federal judge of the Eastern District of New York, made this clear during a case involving a charge for which there is a mandatory minimum sentence. As a result of the prosecutor’s decision to charge the defendant with an offense for which there is a mandatory minimum sentence, no judging was going on about the sentence. The prosecutor sentenced the defendant, not the judge, with far less transparency and no appeal.

Seasoned judges like Wolf and Ponsor, who oversaw the only two death penalty trials in the state in modern times, and veteran judges Rya W. Zobel and Joseph L. Tauro recently went on senior status, creating the vacancies that allowed for the appointments. Retired federal judge Nancy Gertner, who stepped down in 2011 and now teaches at Harvard, said she chose to leave the bench entirely so that she could speak more openly about judicial matters, something she wouldn’t be able to do as a judge. She recently wrote a Globe column criticizing the legal process used in the Ferguson, Mo., police shooting investigation. She has also has given media interviews, and said, “I feel freer now to be critical.” “Do I miss the bench? Yes, there’s something very special about being able to assess a just result, in your courtroom,” she said.