Nancy Gertner

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.

An op-ed by Nancy Gertner, Michael B. Keating and Martin F. Murphy. On Jan. 5, we are set to relive the Boston Marathon bombing when Dzhokhar Tsarnaev’s trial begins. For months after that, a cast of thousands — lawyers, court officials, jurors, police officers, survivors, evidence technicians, and an army of photographers and reporters — will gather at the federal courthouse in South Boston to recreate those days in April 2013. Prosecutors will show photos and videos of the bleeding, dazed victims. The wounded survivors at the finish line and the brave families of the four who died that week — two young women, an 8-year-old boy, and an MIT police officer — will be asked to re-experience the trauma that they (and we) can never forget. And round-the-clock news reporting will rekindle the emotions the event engendered. But the fact is, it is not inevitable: There need not be a trial at all.

Monday, a grand jury decided not to indict a police officer for fatally shooting an unarmed teen in Ferguson, Missouri. Protests have been held nationwide, and across New England, after people learned Darren Wilson would not be charged in the death of Michael Brown. ... Tuesday, retired U.S. district court judge Nancy Gertner weighed in on the decision when she joined Jim Braude on Broadside.

Twenty-eight current and retired Harvard Law School professors are asking the university to abandon its new sexual misconduct policy and craft different guidelines for investigating allegations, asserting that the new rules violate the due process rights of the accused. “This is an issue of political correctness run amok,” said Alan M. Dershowitz, an emeritus Harvard Law professor who was among the faculty members signing an article, sent to the Globe’s Opinion page, that is critical of the new procedures...The professors said the new policy fails to ensure adequate representation for the accused and includes rules governing sexual conduct between two impaired students that are “starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues involved in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.” In addition to Dershowitz, faculty members who signed the letter included Elizabeth Bartholet, Nancy Gertner, and Charles Ogletree.

The judge regretted it from the beginning. The 27-year prison sentence he gave Byron Lamont McDade was too long, he said, for a low-level player in an expansive cocaine enterprise. Years later, the punishment still nagged at him...“Every one of us has had cases where you absolutely had no choice but to sentence someone to a term that you experienced as unjust,” said Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard Law School. But even with a federal judge in your corner, she said, there are no guarantees for inmates like McDade. Friedman and others, she said, are “reduced to begging these other authorities to do the right thing.”

An op-ed by Nancy Gertner. At the 11th hour, the Senate Judiciary and Intelligence Committee received an extraordinary letter from U.S. District Judge John Bates of Washington purporting to represent the federal judiciary. In it, Bates criticized the Senate proposal to reform the Foreign Intelligence Surveillance Act (FISA) court and implied support for the House version. The Senate bill would create a permanent special advocate tasked with challenging the government’s presentations before the FISA court and is more protective of civil liberties and privacy than the House version. But whatever the merits of Bates’ concerns—and other judges have dissented from it—he most assuredly does not speak for the Third Branch.

For the past 29 years, Joel Cohen has been an accomplished litigator at Stroock & Stroock & Lavan in New York City. He is also the author of a regular column in the Law Journal. And he has somehow found time to write four works of fiction, three of which tackle religious subjects. Blindfolds Off is his first non-fiction work, and it sets out to "examine what goes on in a judge's mind that may not be reflected in the record."...Cohen's technique is the probing interview. Thirteen federal judges, all but two of whom are still sitting, agreed to be interviewed about a significant case over which they presided...Judge Nancy Gertner talks about awarding Peter Limone and others $100 million in their wrongful conviction lawsuit arising out of the FBI's insidious relationship with Whitey Bulger.

Olympic gymnast McKayla Maroney, one of a number of female celebrities whose private nude photos were posted online without their consent, has now taken legal action against several of the websites that posted her images. Maroney says she was under 18 at the time the photos were taken, which has some wondering whether the images constitute child pornography....A naked picture of a child does not always constitute child pornography, according to Nancy Gertner, a retired federal judge and current faculty member at Harvard Law School. "It depends on the pose, whether it's lewd or lascivious," she said over the phone. If the pose is lewd or if it can be construed to be lewd, Gertner said, "then those who are downloading it are downloading child pornography.

After 24 days dissecting public acts and private pain, closing arguments were scheduled for Friday in the federal corruption trial of former Virginia governor Robert F. McDonnell and his wife, Maureen. ... The wrangling over wording can appear esoteric but is critical because it is how a judge tells the jury “here is what I think is the framework in which you have to operate. It’s significant especially in white-collar cases,” which can be more nuanced than street crimes, said Nancy Gertner, a former federal judge on the faculty at Harvard Law School.

Despite progress on many fronts for women in the legal profession, the still-steep path to equality was a recurring theme at the annual Margaret Brent Lawyers of Achievement Awards Luncheon at the ABA Annual Meeting. At the 24th annual presentations Sunday in Boston's Hynes Convention Center, evidence of gains being lost added urgency to the mission. The Margaret Brent Awards honor women who overcame significant hurdles in pursuing legal careers or who brought positive change that affected many others. And yet, ABA President James Silkenat said at the luncheon's outset, "many are still making hard choices between professional success and personal fulfillment." For example, award recipient Nancy Gertner, who retired from the U.S. District Court of Massachusetts bench three years ago, told the luncheon crowd of hundreds, "I left a job that I loved, as a judge, so that I could speak."

…On Thursday, the Supreme Court unanimously overturned a Massachusetts law creating buffer zones around the state’s abortion clinics…“It was a bad law,” said Harvard law professor Mark Tushnet. “It would be astonishing if any lawyer won this case.” Tushnet credited the Massachusetts attorney general’s office with winning a small tactical victory, even in defeat. A majority of the justices, he noted, found that the law did not discriminate against antiabortion protesters for the content of their speech. Instead, the justices found, it impinged on the rights of everyone outside the clinics, whatever their views. Tushnet said the finding, that the buffer zone law was “content-neutral,” could provide an opening for new, more limited measures designed to protect clinic-goers and employees…Nancy Gertner, a former US District Court judge and now a law professor at Harvard University, said she is not surprised that the two unanimous decisions did not produce a simple “bad week for Coakley” narrative. “You can’t begrudge the attorney general of the state defending a statute that supports the right to choose,” she said.

An op-ed by Nancy Gertner. Anyone of a certain age remembers Willie Horton. Furloughed in 1986 from a life sentence for murder, Horton, who is black, raped a white woman and assaulted her fiancé. But Horton’s legacy extends beyond the horrific crime he committed. Many have blamed Governor Michael Dukakis’s failed presidential bid that year on publicity surrounding the case. Less often discussed is how far Horton’s crime set back criminal justice reform in Massachusetts — and still does to this day.

In a week of many developments in the world of law, Harvard Law School faculty were online, in print, and on-the-air offering analyses and opinions.

In a week of many developments in the world of law, Harvard Law School faculty were online, in print, and on-the-air offering analyses and opinions.

U.S. Senator Elizabeth Warren has announced the appointment of an Advisory Committee on Massachusetts judicial nominations to solicit, interview, and comment on applications for federal District Court vacancies in Springfield and Boston. The Committee is comprised of distinguished members of the Massachusetts legal community, including Harvard Law School Professor Andrew Kaufman, and will be chaired by former District Court Judge Nancy Gertner, who is now a Professor of Practice at HLS.