Nancy Gertner

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.

Here is the Radio Boston rundown for Oct. 16. Tiziana Dearing is our host. This week was about the pandemic, politics and policing. There are now 63 cities and towns designated as high risk for the coronavirus in Massachusetts, which is 23 more than last week. In Washington, just three weeks before the presidential election, the Senate Judiciary Committee started Supreme Court confirmation hearings for Judge Amy Coney Barrett, while the presidential candidates held dueling town halls. Back here in Boston, Mayor Walsh announced that he would adopt all four prongs of a police reform task force report, making changes to police oversight, addressing issues of diversity and inclusion, the use of force and police body cameras. We take listener calls and discuss it all with our Week in Review panelists: retired federal judge Nancy Gertner and Joe Battenfeld, political columnist at the Boston Herald.

An op-ed by Nancy Gertner: In his 2016 book “The Undoing Project,” Michel Lewis described the work of psychologists Daniel Kahneman and Amos Tversky as “undoing” assumptions about human decision-making. The title is also apt for what is unfolding before the Senate today: the Republican Party’s efforts to remake the Supreme Court into a conservative branch, first with the addition of Justices Neil Gorsuch and Brett Kavanaugh, and now with the nomination of Judge Amy Coney Barrett. This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Barrett, in an article entitled “Catholic Judges in Capital Cases,” distinguished between a judge’s obligations in death penalty cases and abortion cases. Abortion, she said, was “always immoral,” the church’s teachings constituting a “flat prohibition.” In contrast, the church treated the death penalty as permissible in cases of “absolute necessity.” Barrett’s mentor, the late Supreme Court Justice Antonin Scalia, whose originalist judicial philosophy she touts, stridently dissented when the court ruled that the state cannot criminalize homosexual conduct or prohibit same-sex marriage. On the Affordable Care Act, Barrett accused Chief Justice John Roberts of having “pushed” it “beyond its plausible meaning to save the statute.” But this undoing project is broader — it’s a return to an era decades ago, when a conservative pre-New Deal Supreme Court used a contested constitutional doctrine about freedom of contract — the right of workers and bosses to contract for the terms of employment — to invalidate statutes requiring improved working conditions, higher wages, and limited hours. Recently, the court’s conservative majority held that the requirement that public employees pay agency fees to support their union violated the free speech rights.

We bring you live coverage of the developing news regarding President Donald Trump and First Lady Melania Trump testing positive for the coronavirus, and take your calls with our panel of experts. Guests: Shira Doron, infectious disease physician and hospital epidemiologist at Tufts Medical Center. Anthony Brooks, WBUR senior political reporter. Michael Curry, Deputy CEO & General Counsel of the Massachusetts League of Community Health Centers, former head of the Boston NAACP, and a member of the national NAACP Board of Directors. Nancy Gertner, WBUR legal analyst, retired federal judge, and senior lecturer at Harvard Law School. David Gergen, advisor to presidents Nixon, Ford, Reagan and Clinton, and founding director of the Center for Public Leadership at the Harvard Kennedy School.

Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As a judge on the Seventh U.S. Circuit Court of Appeals, Ms. Barrett wrote a 2019 decision that revolutionized how courts consider Title IX claims from accused students. Lawsuits in this area have multiplied since 2011 guidance from the Obama administration, which pressed universities to adopt biased procedures to favor accusers, hoping that doing so would increase reporting of campus allegations. Several other courts of appeals embraced Judge Barrett’s standard, which now applies to claims in 22 states. Beyond its importance to Title IX law, the opinion speaks to Judge Barrett’s quality as a jurist. The case involved a relationship between two Purdue University students...The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint. As Nancy Gertner, a Harvard law professor and a former federal judge, recently observed, “Judges of all stripes around the country have been concerned with fairness in these proceedings.” It’s unlikely that Judge Barrett’s nomination will rise or fall on her decision to join scores of her colleagues in issuing a ruling favorable to a student accused of sexual misconduct. But to the extent that concerns such as intellectual quality or judicial temperament still play a role in the confirmation process, Judge Barrett’s Purdue opinion should serve her well.

Google parent Alphabet has agreed to commit $310 million to diversity, equity, and inclusion initiatives as part of a settlement for a series of sexual harassment and misconduct lawsuits filed against some of the company’s officers and directors. As part of the settlement, filed on Friday in California Superior Court, Alphabet will establish a diversity, equity, and inclusion advisory council featuring outside experts, which include retired judge and Harvard Law School professor Nancy Gertner and former member of the Equal Employment Opportunity Commission Fred Alvarez, as well as company executives including CEO Sundar Pichai and Google chief legal officer Kent Walker. The settlement also ends Alphabet’s mandatory arbitration for harassment, discrimination, and retaliation-related disputes between employees or contractors and the company. It limits Google’s use of nondisclosure agreements and ensures that the recommended consequences for misconduct are equal across business units. “This settlement will not only change and improve the culture at Google, but it will set the standard for culture change at tech companies throughout Silicon Valley,” Ann Ravel, an attorney from Renne Public Law Group who led parts of the settlement negotiation, said in a release. "Recent years have involved a lot of introspection and work to make sure we’re providing a safe and inclusive workplace for every employee," said Google vice president of people operations Eileen Naughton in a blog post Friday. "That doesn’t stop here and you’ll receive reports on our progress as we move forward."

Witnesses appearing before a congressional subcommittee Tuesday warned of the conservative influence on the federal judiciary under the Trump administration, as Senate Republicans on the other side of the Capitol appeared to have enough votes to confirm President Donald Trump’s forthcoming nominee to the U.S. Supreme Court. The hearing, which included topics such as the influence of groups like the Federalist Society on judicial selections, has long been in the works, but the vacancy caused by Justice Ruth Bader Ginsburg’s death cast the proceeding in a new light...Sen. Sheldon Whitehouse, one of the Senate Democrats leading an investigation into conservative legal groups’ use of “dark money” in supporting judicial nominations, spoke at the start of the hearing. “The sooner we clean up this mess, the sooner courts can escape the grimy swamps of dark-money influence and return to their place in the broad and sunlit uplands of earned public trust,” he said in his remarks. Other witnesses invoked Ginsburg’s vacancy in their testimony, as they warned that even the perception of outside political influences on the courts could undermine the judiciary. “There are, or at least I fear the public perceives that there are, ‘Trump’ judges. The administration has explicitly said as much. These are, after all, ‘his judges,’” former U.S. District Judge Nancy Gertner testified. “The unique judicial selection process has produced them. And the public’s perception of Trump judges could undermine the rest of the bench.”

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. But over the decades that followed, Ruth Bader Ginsburg built a remarkable career as a legal and cultural icon who used her intelligence and courage to fight fearlessly for social justice. And after her death was announced on Friday, entire generations of lawyers — women and men alike — grieved for a jurist whose legacy somehow transcended even the highest court in the nation. “Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career. “I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. Justice Ginsburg also showed that it is possible to build deep and meaningful friendships with people despite severe disagreements. At this time of deep social and political divisions, there is much to learn from her life and her commitments,” Minow said in a statement...Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.” “Ruth Ginsburg was more than just a brilliant scholar, and a liberal, which is what the press reduced her to,” Gertner said by phone. “She essentially created the law of gender and race discrimination. From the time she was a lawyer, a litigator, she was raising issues about the nuance of discrimination.”

Supreme Court Justice Ruth Bader Ginsburg is known as a trailblazer for gender equality and equal rights, and her death has reverberated around the nation. Former Boston federal judge and WBUR legal analyst Nancy Gertner knew Justice Ginsburg personally, and spoke with WBUR's Sharon Brody to share her thoughts and memories of a woman she calls "the model of what we wanted to be."

An op-ed by Nancy Gertner: I was in my late 20s, attending a conference for women lawyers in the 1970s. I sat in the front row of a large auditorium for the keynote address. The speaker was Ruth Bader Ginsburg, the founder of the American Civil Liberties Union Women’s Rights Project. I was mesmerized. She was all that I wanted to be. To devote one’s life to the fight for civil rights, to use legal skills to effect justice, better yet to make a difference — I could think of nothing greater. And I was not alone; generations of civil rights lawyers looked to emulate her. Ginsburg’s vision of gender equality was decades ahead of her time. It went beyond just empowering women to compete for “men’s” roles. While stereotypes distorted women’s view of what was possible, they also impeded men, no less trapped in gender-based assumptions. Equality meant that both sexes should be free to assume all of society’s roles without preconceptions. My son can be a caregiver; my daughter can be an executive. When the school administrators wanted Ginsburg to come to school to discuss her son’s misconduct, she famously said, “This child has two parents.”

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. ...“Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” ... Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career.“I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. .. At this time of deep social and political divisions, there is much to learn from her life and her commitments.” ... Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.”

With the death of Massachusetts Supreme Judicial Court Chief Justice Ralph Gants, Gov. Charlie Baker will do what none of his most recent predecessors have done. He'll be the first governor in recent memory to appoint all seven state supreme court justices. Baker has already appointed five justices, all of whom were elevated to the high court in the last four years. And he was scheduled to replace Justice Barbara Lenk, who will reach the mandatory retirement age and leave the bench in December. With a nomination for a new justice after the loss of Gants, all of the court's members will have been named by Baker...Gants' influence on the court was evident, according to many court observers who praised his commitment to fairness and equity — especially fairness to those without resources and racial equity. Defense Attorney Jamie Sultan, who frequently argues before the SJC, said most of the current justices have strong backgrounds as prosecutors...The SJC is known for historic rulings on issues such as gay marriage and criminal justice reforms. Retired federal judge and WBUR legal analyst Nancy Gertner said she hopes the governor isn't too cautious in making his nominations. "It's a remarkable court and that's what Baker should be aiming for," Gertner said. "Baker should be aiming for excellence and not just avoiding controversial picks." Gertner said she hopes Baker nominates someone with a legal mind like Gants, who was known for a sometimes unconventional approach to improving the justice system.

A new study out of Harvard underscores the extent of racial disparities within the Massachusetts criminal justice system, showing that Black defendants account for 17 percent of the state’s criminal caseload, and Latino defendants account for 18 percent — despite making up just 6 and 9 percent of the state population, respectively. The study also shows that people in those groups receive longer sentences on average than their white counterparts — a finding that remains when controlling for other factors, like an individual’s past criminal history. To discuss, Jim Braude was joined by Suffolk County District Attorney Rachael Rollins and retired federal judge Nancy Gertner, now a senior lecturer at Harvard Law School.

Chief Justice Ralph Gants of Massachusetts' Supreme Judicial Court has died. He suffered a heart attack earlier this month. He was 65. The court announced his death in a statement this afternoon. We get reaction from WBUR legal analyst Nancy Gertner, who is also a retired federal judge and senior lecturer at Harvard Law School.

An article by Nancy Gertner:In this summer of our racial discontent, with nationwide demonstrations against police shootings of Black people and systemic racism across all institutions, a study released Wednesday by the Criminal Justice Policy Program at Harvard Law School, where I teach, could not be more significant. Harvard researchers were enlisted in 2016 by Massachusetts Supreme Judicial Court Chief Justice Ralph Gants to look at the factors that contribute to the large racial disparities in incarceration rates. The Massachusetts Sentencing Commission had found that, in 2014, Black people in the state were imprisoned at a rate nearly eight times that of white people, and Latinx people nearly five times that of white people. In fact, Massachusetts had the dubious distinction of outpacing national disparity rates, ranking the highest in disparities for Latinx and 13th highest for Black people. Though hampered by the poor record-keeping of public agencies, the bullet points were jaw-dropping: White people make up roughly 74 percent of the state’s population while accounting for 58.7 percent of cases in the Harvard study’s data. Black people make up just 6.5 percent of the population and account for 17.1 percent of cases. Black and Latinx people were not simply overrepresented in the criminal caseload, they also received more severe treatment. They were less likely than white people to have their cases resolved through less severe dispositions like pretrial probation. They received longer sentences than their white counterparts — an average of 168 days longer for Black people and 148 days longer for Latinx people. The differential treatment could not be explained by the nature of the charges: Black and Latinx people charged with drug offenses and weapons offenses received longer sentences than white people charged with similar offenses. Even when Black and Latinx people were charged with offenses carrying mandatory minimum sentences, they were more likely to receive longer sentences than white people facing identical charges.

Andrew Lelling has put almost two dozen parents behind bars in the U.S. college admissions scandal. On Friday a federal judge sentenced the most famous of them all, “Full House” star Lori Loughlin. The massive prosecution, which also snared top financial and real estate executives as well as a Napa Valley vintner, is one of the most high-profile led by Lelling, the U.S. attorney for Massachusetts and a self-described “red dot in a blue state.” Appointed by President Donald Trump in 2017, he has brought an ambitious series of controversial cases and drawn sharp criticism from liberals who say he’s sometimes more driven by conservative politics than by crime-fighting. The 50-year-old lawman outraged top Democrats, including Massachusetts Attorney General Maura Healey, last year by bringing obstruction of justice charges against a state court judge for allegedly helping a man slip out the back door of a courthouse to evade federal immigration agents. Last month he defended a new administration rule that barred foreign students from remaining in the U.S. if their universities offered only online classes... His critics see Lelling as a self-righteous foot soldier for the Trump administration, prone to overreach and grandstanding. Nancy Gertner, a senior lecturer at Harvard Law School and a retired U.S. district judge, called the federal case against the state judge “an abomination,” saying in an interview that “there were other ways of doing it without doing violence to the constitutional structure.” ...On Friday he saw Loughlin -- unjustly the “face of the national scandal,” as her lawyer described her -- sentenced to two months in prison for paying $500,000 to get her daughters into the University of Southern California as purported crew stars. But the college case has had mixed reviews, too. Some legal pundits, including Harvard’s Gertner, criticize Lelling’s decision to flip William “Rick” Singer, the corrupt admissions strategist at the top of the scheme, against nonviolent offenders with no criminal records on the lower rungs of the racket. “The way it was handled was overreach from beginning to end,” she said.

The Justice Department will seek to reinstate the death penalty against Boston Marathon bomber Dzhokhar Tsarnaev. A three-judge appeals court panel overturned the sentence last month, ruling that the trial judge did not adequately question jurors. In a statement released Thursday night, U.S. Attorney Andrew Lelling said the Justice Department will go directly to the U.S. Supreme Court and ask justices to review that decision. Lelling said the department hopes to reinstate the original sentence, and avoid a retrial of the penalty phase. Judge Nancy Gertner, a senior lecturer at Harvard Law School and a former federal judge, joined WBUR's Morning Edition to discuss.

Think of your opening statement like it’s a movie trailer. That was the suggestion of St. Louis, Missouri Circuit Court Judge Michael Noble during a webinar focusing on openings presented jointly by the National Institute for Trial Advocacy and the Courtroom View Network Tuesday...The hour-and-a-half presentation paired archival video footage of actual openings from civil jury trials with a panel discussion between Noble, retired Boston U.S. District Judge Nancy Gertner, and Philip Freidin of Miami’s Freidin Brown moderated by Reuben Guttman of Guttman, Buschner + Brooks in Washington, D.C...While Gertner said that as a practicing lawyer, she often employed standard openings similar to Lanier’s as a way of calming herself down, neither of the Texans’ approaches would have worked in her New England courtroom. “You have to know where you are. You have to know who you are,” she said. “As a young woman lawyer, I knew I couldn’t cozy up to the jury and say ‘in my experience,’ because I had none.” ...For her part, Gertner said that she thinks lawyers should argue their cases from the beginning, but do it with the evidence. The phrase “the evidence will show” she and the other panelists agreed, can help lawyers avoid the trap of a mid-opening objection. Getting a case down to its “gist” and to its “core,” she said, involves picking the evidence that’s most favorable to your side. “That kind of selection is inevitably argument,” she said.

When Shawn McClinton was released from jail in July, according to police, the twice-convicted rapist didn’t waste much time before he struck again. Awaiting trial on another assault charge, McClinton allegedly raped a woman at knifepoint in Dorchester. The attack came just a couple of weeks after a local nonprofit called the Massachusetts Bail Fund posted his bail, enabling him to leave jail after spending two years in detention without a trial. The law enforcement establishment didn’t waste any time, either: Attorney General Maura Healey called the fund’s decision to post the $15,000 bail “dangerous and irresponsible.” Police Commissioner William Gross called the bail fund a “detriment to society.” Even Suffolk County District Attorney Rachael Rollins, roundly considered a progressive prosecutor, criticized the organization, whose stated mission is to post bail for low-income defendants so they can await trial from home just as wealthier defendants do...According to the Suffolk County DA’s office, a dangerousness hearing was not held in McClinton’s case even though experts say his criminal track record makes him exactly the kind of defendant these hearings are designed for. “This is a prosecutor problem, not a judge problem or a bail-fund problem,” says Nancy Gertner, a former federal judge and Harvard Law professor. “The person who dropped the ball is the prosecutor who didn’t say ‘this guy is dangerous’” and request the hearing...Both Gertner and the Massachusetts Bail Fund, for its part, believe the narrative that the public is being fed about McClinton’s case is an attempt to maintain the status quo in law enforcement precisely at a moment of unprecedented mobilization demanding police and criminal justice reform. “The outrage and shock from stakeholders are disingenuous,” bail-fund board member Jessica Thrall says. “All of them know exactly how bail works.”

Bypassing Congress on Saturday, President Trump issued a set of executive orders and memoranda to deliver emergency pandemic aid. The actions are ambiguous and raise a lot of questions. We break down what they mean for Massachusetts with Marie-Frances Rivera, President at the Massachusetts Budget and Policy Center. We also hear from Michael Capuano, former Massachusetts Congressman and now the public affairs director for Foley and Lardner, and from WBUR legal analyst Nancy Gertner. She's a retired federal judge and a senior lecturer at Harvard Law School.