Nancy Gertner

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.

President Donald Trump's desperate and conspiracy-ridden attempts to challenge President-elect Joe Biden’s election win went a step further this weekend when The Washington Post published a recording of him asking Georgia officials to “find” him the votes needed to win the state. The Hail Mary attempt comes as Congress prepares to officially count the Electoral College votes this Wednesday, with more than 100 Republican lawmakers planning to make a symbolic stand that day against the majority will of the American electorate. To discuss, Jim Braude was joined by Jennifer Horn, a co-founder of anti-Trump Republican organization The Lincoln Project, and retired federal judge Nancy Gertner, now a professor at Harvard Law School.

This past weekend was a big one for Republicans. Here in Massachusetts, party members re-elected Jim Lyons as state party chair, in a 39-36 vote over his challenger, State Representative Shawn Dooley of Norfolk. Lyons, an ardent Trump supporter, has frequently clashed with GOP governor Charlie Baker. Meanwhile, on Saturday, at least 10 Republican US Senators announced they will object to certifying the electoral college results this Wednesday. Also, the Republican Secretary of State of Georgia released the audio of an hour-long call with President Trump and some of his lawyers in which Trump repeatedly asked Secretary Brad Raffensperger to "find" exactly enough votes to declare him the winner there. We take listener calls with Judge Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. We also hear from WBUR senior political reporter Anthony Brooks and Amy Carnevale, an elected member of the Massachusetts Republican State Committee.

The search for Massachusetts' next top federal prosecutor is about to begin in earnest. Incoming President Joe Biden will appoint the next U.S. attorney for Massachusetts, but a local advisory committee expects to begin reviewing applications as early as next week. The committee was set up by Sens. Elizabeth Warren and Ed Markey, who will ultimately recommend who the next president should appoint to replace current U.S. Attorney Andrew Lelling. The chair of the advisory committee, retired federal judge Nancy Gertner, says the panel interested in talking with the candidates about the power wielded by prosecutors and whether changes might be needed, although that will largely depend on the next attorney general. "It's not an ordinary time," she said. "We've had demonstrations about the George Floyd killing and more attention to mass incarceration, and the criminal legal system is not going to have the resources due to the pandemic. I think all of that conspires to a moment of reform and the next U.S. attorney ... should be moving that."

The past 24 hours have been a microcosm of the past four years of President Trump’s time in office — with a sudden slew of self-serving and questionable pardons, a last-minute wrench thrown into a COVID relief bill on which many were relying, and a call for someone to challenge one of the top senators in the Republican party. David Gergen, who served as an adviser to Presidents Nixon, Ford, Reagan, and Clinton, and retired federal judge Nancy Gertner joined Jim Braude to discuss the legacy Trump leaves behind... “The optimist in me says that, in many ways, [Trump] has not forever changed the presidency, only because he is such a unique character,” said Gertner. “It’s not clear that someone can fill the job with his kind of blather, frankly, the way he has. But … [Trump] has shown us the weakness of the guardrails. I don’t think that anyone else could take advantage of them quite the same way he has, but we have to do something about those guardrails.”

The resurgence of COVID-19 in Massachusetts could prompt Gov. Charlie Baker to again impose aggressive restrictions on businesses using a decades-old statute, but legal experts say courts are likely to give him broad deference in combating the public health crisis. Baker was one of many governors to impose sweeping business closures and other measures in the spring when the virus first surged in the Bay State. Despite the governor's broad popularity, a number of the emergency orders enacted under the Civil Defense Act have drawn legal challenges. While Baker's record in these suits has not been perfect, experts told Law360 the courts are likely to defer to his authority should he decide to snap restrictions back into place. "While there are limits, the emergency powers mirror the nature of the emergency," said Nancy Gertner, a former federal judge and current Harvard Law School professor, adding that a crisis like COVID-19 would be reviewed by looking at the rational basis of the measures imposed. It's a standard she said the governor is likely to meet. "This is not like mandating motorcycle helmets, which is a public health issue but affects everyone else around the motorcyclist only tangentially in terms of insurance rates and visits to emergency rooms," Gertner said. "This is a direct link where what you do affects me."

Everything in our lives this past month has existed at the intersection of the coronavirus, or the election. In the past two weeks, there's been a slew of legal questions around both. President Donald Trump refuses to acknowledge his defeat by President-Elect Joe Biden. And his team and other Republicans have turned to the courts, citing unverified and unproven claims of voter fraud in key battleground states. Plus, as the coronavirus surges nationwide and here in Massachusetts, there are renewed legal questions about the balance between individual freedom and actions state and federal government can take to curb infections and hospitalizations. We take listener calls with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. And with John Fabian Witt, a professor of law and history at Yale University, is author of the new book "American Contagions: Epidemics and the Law from Smallpox to COVID-19."

Lawyers nationwide are demanding that their colleagues stop representing President Trump since he is falsely claiming widespread voter fraud and such unfounded allegations are in violation of his duties under the US Constitution. The Nov. 10 open letter is signed by more than 1,100 lawyers, many of them in with Massachusetts ties, including retired Supreme Judicial Court Justice Fernande RV Duffly, former federal judge Nancy Gertner, and Pamela Bergman, president of the Massachusetts Women’s Political Caucus. "There has never been a more important time for America’s lawyers to acknowledge the importance of these solemn commitments, and to demand accountability for those lawyers and federal officials who do not live up to their oaths and ethical obligations,'' the open letter demands. The legal profession has ethical rules that bar attorneys from filing lawsuits when they know the claim being made is false or untrue, according to Lawyers Defending American Democracy, the group leading the campaign. "We join in this letter to demand that public office holders and lawyers uphold their oath to defend the Constitution,'' the letter states. “To do that, they must cease making false or unfounded claims and implementing actions – including those actions taken by Attorney General William Barr on November 9 – that undermine our presidential election process.”

Supreme Court Justice Samuel A. Alito Jr. took aim at legal interpretations of a historic Massachusetts lawsuit, appeared to mock Cambridge, and slammed two New England senators as he offered an unusually blunt critique of coronavirus lockdowns and other measures in a speech to a conservative legal group. Alito’s Thursday address to the Federalist Society, which held its annual convention virtually due to the pandemic, overstepped the usual boundaries for a Supreme Court jurist and could undermine the public’s faith in the court, legal observers said. “This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again. Alito criticized the use of a 1905 Supreme Court decision in a Massachusetts case to justify COVID-19 restrictions — while taking a dig at Cambridge...Laurence H. Tribe, a Harvard Law School professor emeritus, said Alito’s remarks were “extremely unusual” and that it was “injudicious and highly inappropriate” for a Supreme Court justice to comment “on issues that are bound to return to the Court, like same-sex marriage and religious exemptions and restrictions on personal liberty designed to control the spread of COVID-19.” “He seriously compromised the integrity and independence of his role as a Supreme Court Justice by offering hints and intimations and sometimes all but explicit forecasts of how he would approach matters not yet briefed and argued before him in the context of a specific case or controversy,” Tribe said in an e-mail.

Before dawn on January 23, 2019, Mark McConnell arrived at the Key West headquarters of the military and civilian task force that monitors drugs headed to the United States from the Southern Hemisphere...On a computer approved for the handling of classified information, he loaded a series of screenshots he had taken, showing entries in a database called Helios, which federal law enforcement uses to track drug smugglers. McConnell e-mailed the images to a classified government hotline for whistle-blowers. Then he printed backup copies and, following government procedures for handling classified information, sealed them in an envelope that he placed in another envelope, marked “secret.” He hid the material behind a piece of furniture. McConnell had uncovered what he described as a “criminal conspiracy” perpetrated by the C.I.A. and the F.B.I. Every year, entries in the Helios database lead to hundreds of drug busts, which lead to prosecutions in American courts. The entries are typically submitted to Helios by the Drug Enforcement Administration, the F.B.I., and a division of the Department of Homeland Security. But McConnell had learned that more than a hundred entries in the database that were labelled as originating from F.B.I. investigations were actually from a secret C.I.A. surveillance program. He realized that C.I.A. officers and F.B.I. agents, in violation of federal law and Department of Justice guidelines, had concealed the information’s origins from federal prosecutors, leaving judges and defense lawyers in the dark. Critics call such concealment “intelligence laundering.” In the nineteen-seventies, after C.I.A. agents were found to have performed experiments with LSD on unwitting Americans and investigated Vietnam War protesters, restrictions were imposed that bar the agency from being involved in domestic law-enforcement activities. Since the country’s founding, judges, jurors, and defendants have generally had the right to know how evidence used in a trial was gathered. “This was undisclosed information, from an agency working internationally with different rules and standards,” Nancy Gertner, a retired federal district judge and a senior lecturer at Harvard Law School, told me. “This should worry Trump voters who talk about a ‘deep state.’ This is the quintessential deep state. This is activities beyond your view, fundamentally affecting what happens in American courts.”

The confirmation of Amy Coney Barrett as Supreme Court Justice on Tuesday cemented a 6-3 conservative majority that will shape the country for generations to come, starting with expected rulings on the Affordable Care Act, immigration, abortion, voting rights, and possibly even the results of the upcoming presidential election. To discuss, Jim Braude was joined by retired federal judge Nancy Gertner, who is now a senior lecturer at Harvard Law School.