Nancy Gertner

It’s the stuff Hollywood movies are made of: In 2003, Elizabeth Holmes created a startup with audacious claims that through a simple blood test, she could revolutionize medicine. The only problem? The technology did not work, and Holmes now faces trial for fraud. Here & Now‘s Tonya Mosley talks with retired Judge and current Harvard Law School professor Nancy Gertner about Holmes’ legal defense.

Elizabeth Holmes, the disgraced founder and former CEO of Theranos, is set to go to trial this week, more than three years after being indicted on multiple federal fraud and conspiracy charges over allegations she knowingly misrepresented the capabilities of her company's proprietary blood testing technology. ... Legal experts say central to the trial will be questions about what Holmes knew, when she knew it, and whether she intended to deceive. "Either she had a device that could never work, or that couldn't work yet. The latter is a more murky situation," said Nancy Gertner, a former US federal judge and senior lecturer at Harvard Law School.

Police Commissioner Dennis White, fighting for his job on the eve of a termination hearing, released a sworn statement Tuesday in which he recounted telling former mayor Martin J. Walsh that he had been the subject of a restraining order when he was accused in the late 1990s of threatening to shoot his former wife...The sworn statement was released in the form of an hourlong video of White being interviewed by his attorney, the latest part of an effort to dissuade Acting Mayor Kim Janey from ousting White at an administrative hearing scheduled for Wednesday...Employment experts described White’s series of video affidavits as a public relations campaign designed to pressure City Hall. But ultimately, experts said, Janey must decide if she wants White as her police commissioner, not whether he was guilty of domestic violence in the 1990s. “How could he possibly assume the position, so tainted by the controversy?” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School, in an e-mail. “For sure, he had every right to want to clear his name, and a legal right to do so, but ... having done all of this, how confident would Janey or any other mayor be in his taking a position of such responsibility?”

On Tuesday, a Superior Court judge refused to block the city of Boston from firing its police commissioner, Dennis White, over decades-old domestic violence allegations. The next day, the same judge also ordered a stay on her own ruling, and on the city's termination process, while White appeals the decision. WBUR's Ally Jarmanning brings us the latest on this still developing story. We also break down the legal arguments with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst.

A Suffolk Superior Court judge on Tuesday rejected Boston Police Commissioner Dennis White’s attempt to block his firing, a decision that clears the way for Acting Mayor Kim Janey to resume her effort to dismiss White following decades-old domestic violence allegations. Judge Heidi Brieger denied White’s motion for a preliminary injunction, in a ruling that had been anxiously awaited by City Hall and by White since a hearing on Thursday...Beyond his lawsuit, White has limited legal options, said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “The ruling today is essentially a prediction by Judge Brieger that he’s not likely to succeed,” she said, noting that the law is also ambiguous about the kind of hearing White could expect before he is removed. Janey “offered a hearing, but he’s saying that’s not enough,” she said. “What he’s really saying is, I want a forum where I can defend myself.” White could also use his suit as leverage for a settlement with the city, Gertner acknowledged. In the interim, Janey could also move forward with another commissioner, though her legal standing to do so might be in question, she added.

Legal battles from the city of Boston to the Supreme Court could affect our future here in the Commonwealth. We'll get caught up on what's happening with retired federal judge and WBUR legal analyst Nancy Gertner.

A man convicted for the 1991 bombing death of a Boston police officer will return to Massachusetts after a federal judge reduced his life sentence. A federal judge granted Alfred Trenkler's request for compassionate release — with some conditions — and allowed him to move from a federal prison in Arizona to the federal prison in Devens...The judge reduced Trenkler's sentence to 41 years with five years of supervision, in part because he found that the sentencing judge did not have the authority to impose a life sentence. His ruling also cites the federal First Step Act, passed in 2018, which gives judges the power to reduce sentences... "I do regard this as a victory," said Trenkler's lead attorney, retired federal judge Nancy Gertner. "Any time a life sentence is set aside, even for a number of years, that means the man has hope." ... Gertner said Trenkler will be eligible for parole in eight years.

The Biden administration’s aggressive timeline for vetting potential judges while seeking nominees who would bring experiential, racial, and gender diversity to the federal bench is proving difficult for several Democratic senators to meet. Senators from at least six states represented by two Democrats, including California, Virginia, and Massachusetts, have missed deadlines set by White House counsel Dana Remus. She had asked senators from states with vacant district court seats to submit recommendations by Jan. 19—the day before President Joe Biden’s inauguration—and within 45 days of the announcement of a new vacancy. “We said we couldn’t do that—that if you want a more diverse pool, and to tell people who never envisioned they could apply that they should apply, we needed more time,” said Nancy Gertner, a former federal district judge and chair of Massachusetts’ vetting commission set up by Democratic Sens. Elizabeth Warren and Ed Markey. The administration wants to speed the pace of nominations compared to prior Democratic presidents and make sure there’s enough time to fill what’s already grown to 100 district and circuit court vacancies before midterm elections threaten the party’s narrow Senate majority.

Here is the Radio Boston rundown for April 21. Tiziana Dearing is our host. Today we spend the hour discussing police accountability and reform, and how the guilty verdict in the murder trial of former Minnesota police officer Derek Chauvin, for killing George Floyd is resonating in our community...We touch on the legal implications of the guilty verdict against Derek Chauvin with Kimberly Atkins, senior opinion writer for The Boston Globe, and Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst. Listener callers join Imari Paris Jeffries, Executive Director of King Boston, and Kimberly Atkins, senior opinion writer for The Boston Globe, to discuss how this verdict is resonating around our community, and what it means for police reform locally and nationally.

An op-ed by Dean A. Strang and Nancy Gertner: Caron Nazario had a newly purchased SUV with a temporary plate taped to the back of the vehicle, properly and lawfully, until his new plates arrived. Daunte Wright had an expired license plate and an air freshener hanging from his rear view mirror. Police officers in both situations said that’s why they were stopped. Nazario was held at gun point and pepper sprayed, but survived. Wright, who had an open arrest warrant for missing a court appearance on a misdemeanor charge, was fatally shot by police. Although Nazario’s stop happened last December, in rural Virginia, and Wright’s last Sunday, in suburban Minnesota, the patterns are clear. Both are Black men. Both were stopped for minor traffic offenses, or for no offense at all. Of course, we don’t know the actual intentions of the police officers who stopped both men. We don’t know what racial attitudes or suspicions or anger they harbored, if any. But that is the point: According to the Supreme Court, the real reason for the stop — even if it was blatant racism — doesn’t matter. The court’s 1996 decision in Whren v. United States held that a traffic stop is lawful if police can come up with some traffic infraction to justify it, however trivial. The subjective intentions of the police — which could be the real reasons for the stop — are irrelevant.

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say...Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School. Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said.

Attorneys all seem to agree: When a prosecutor dismisses charges against a defendant, that's an ultimate win. The defendant can heave a sigh of relief, and walk free without the burden of a trial and the potential costs associated with it. But to criminal defendants who allege police misconduct and plan to file civil lawsuits, a dismissal could mean doom. A case involving a Brooklyn man who sued the New York Police Department on misconduct allegations in 2014 presents a compelling case in point: the man, Larry Thompson, was arrested and charged with misdemeanors...If the high court embraces the majority rule, prosecutors will have too much power in crushing the ability of individuals who have been arrested and prosecuted without any real basis to bring lawsuits to seek damages, Rudin said. Nancy Gertner, a retired federal judge and professor at Harvard Law School, agreed. "That would mean that prosecutors essentially are the gatekeepers. All they have to do is dismiss the charges," said Gertner, who served in the District of Massachusetts between 1991 and 2011. Gertner said civil rights law has been "gutted" by judicial interpretations, particularly on qualified immunity. For that reason, it's significant that the high court is stepping in to provide guidance. "The underlying issue is terribly important," she said.

A first-of-its-kind study of Suffolk County criminal cases found that declining to prosecute some low-level offenses can actually lead to less crime. We discuss the results with Suffolk County District Attorney Rachael Rollins, who made this a central issue while running for the office in 2018. We also break down the study's findings with WBUR's Ally Jarmanning, and hear legal analysis from Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst. Historian Tobey Pearl tells a deeply personal history of a 1638 murder trial in Providence. Her new book is: "Terror To The Wicked: America's First Trial By Jury That Ended A War And Helped To Form A Nation."

The U.S. Supreme Court said on Monday that it will consider a federal government request to reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, reopening a case at the heart of one of the most terrifying and dramatic chapters in Boston history. It is the latest twist in a long legal battle, and experts on both sides of the court decisions say they hope to avoid retraumatizing the victims’ families and survivors of the deadly 2013 bombing...But Harvard Law School Professor and retired U.S. District Judge Nancy Gertner argues the continued pursuit of the death penalty by the federal government in this case runs the same risk. “Given that Mr. Tsarnaev will never leave prison, the government should consider whether continuing to pursue a death sentence for him is unnecessarily traumatizing for the victims’ families and the City of Boston,” said Gertner in a statement. “The First Circuit carefully reviewed Mr. Tsarnaev’s case and concluded that the trial judge made errors that undermined the fairness of his death sentence.”

A letter by Nancy Gertner and John Reinstein: The Globe’s March 15 article — front page, above the fold — screams that 21 convicted murderers have been freed under the state’s compassionate release law (“Compassionate, but to whom?: As 21 murderers receive medical parole, critics and families demand change in law”). Quoting the law’s critics, it suggests that their release ignored their serious offenses, their real medical condition, and the victims’ concerns. Nothing could be further from the truth. Even before the pandemic, medical parole reflected the Legislature’s recognition that compassionate release was critical. Why? Because we have the highest percentage of prisoners over 55 in the country. Because the cost of housing them is three times that of an average adult prisoner. Because keeping them in prison diverts resources from other programs. We have more older prisoners not because of an elderly crime wave, but because we lead the country in the percentage of sentences of life without parole. And racial disparities — a scandal throughout the system — are worse for lifers. The real story is not how many have been released but how few, especially now. Nineteen people have died in state prisons since the coronavirus pandemic’s start, not including those who died after release. The notion that paroling those so debilitated threatens public safety is absurd. Piling on, there was the gratuitous reference to the release from prison of former House speaker Salvatore F. DiMasi (disclosure: we both worked on DiMasi’s case). Battling two forms of cancer, DiMasi was released early on an eight-year sentence. The article adds, “More than four years later, DiMasi is now a registered lobbyist,” as if he had gamed the system. No one who saw him in prison, emaciated, barely able to stand, would believe that. Now, his cancers in remission, his prison term over, he is a lobbyist. Who for? The Massachusetts Housing and Shelter Alliance, working on housing for the homeless. Punishment is one thing; cruelty is another.

It seems there’s no end to them. They are the recent videos and reports of Black and brown people beaten or killed by law enforcement officers, and they have fueled a national outcry over the disproportionate use of excessive, and often lethal, force against people of color, and galvanized demands for police reform...Alexandra Natapoff, Lee S. Kreindler Professor of Law, sees policing as inexorably linked to the country’s criminal justice system and its long ties to racism. “Policing does not stand alone or apart from how we charge people with crimes, or how we convict them, or how we treat them once they’ve been convicted,” she said. “That entire bundle of official practices is a central part of how we govern, and in particular, how we have historically governed Black people and other people of color, and economically and socially disadvantaged populations.” ... Retired U.S. Judge Nancy Gertner also notes the need to reform federal sentencing guidelines, arguing that all too often they have been proven to be biased and to result in packing the nation’s jails and prisons... “The disparity in the treatment of crack and cocaine really was backed up by anecdote and stereotype, not by data,” said Gertner, a lecturer at HLS. “There was no data suggesting that crack was infinitely more dangerous than cocaine. It was the young Black predator narrative.” ... At Harvard Law School, students have been studying how an alternate 911-response team might function in Boston. “We were trying to move from thinking about a 911-response system as an opportunity to intervene in an acute moment, to thinking about what it would look like to have a system that is trying to help reweave some of the threads of community, a system that is more focused on healing than just on stopping harm” said HLS Professor Rachel Viscomi, who directs the Harvard Negotiation and Mediation Clinical Program and oversaw the research.

While President Trump prepared to issue a spree of pardons, tens of thousands of troops prepared for a high-security transition of power. At least 12 Army National Guard members have been removed from inauguration duties due to ties with militant right-wing groups or extremist postings online. Retired federal judge Nancy Gertner, now a senior lecturer at Harvard Law School, and Axios politics editor Glen Johnson joined Jim Braude to discuss.

Suffolk District Attorney Rachael Rollins has emerged as a finalist for the job of United States attorney for the district of Massachusetts, a post overseeing more than 200 federal prosecutors, according to several people who have been briefed on the selection process. Rollins is one of four lawyers chosen by a search committee appointed by US Senators Edward Markey and Elizabeth Warren, the people said. The committee last week submitted the names for the state’s top federal law enforcement job to the senators, who interviewed candidates last week...The committee received dozens of applications by the Dec. 28 deadline, but winnowed down the list through interviews. Three of the four are non-white candidates. Besides Rollins, who is Black, Serafyn is half Cuban — her mother came to the United States from Cuba — and Shukla is of Indian descent, according to someone who has worked with them. The committee moved quickly in response to a request from the incoming Biden administration to submit top candidates for US attorney and judicial positions by Jan. 19, a day before his inauguration, explained Nancy Gertner, the former federal judge who led the search committee. “We were acting quickly because the White House counsel wanted names right away,”Gertner said. “Democrats were criticized under Obama for moving so slowly. We worked through the holidays. We made our selections.”

Law enforcement is tracking down and arresting extremists who participated in last week's violence at the U.S. Capitol. Congress is bringing new articles of impeachment to remove Trump from office, with a fight over them again breaking largely down party lines. With all that we've seen transpire over the last week, what's next after the attack? We take listener calls with retired federal judge Nancy Gertner, a senior lecturer at Harvard Law School, and WBUR's Legal Analyst; and WBUR senior political reporter Anthony Brooks.