Nancy Gertner

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.

On Friday, a federal appeals court threw out Dzhokhar Tsarnaev's death sentence and ordered a new penalty-phase trial, with the three-judge panel ruling that prosecutors failed to properly vet the jury for bias. To discuss, Jim Braude was joined by Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

An article by Nancy Gertner, Martin F. Murphy, and Michael Keating: News reports following the First Circuit Court of Appeals’ decision granting convicted Boston Marathon bomber Dzhokhar Tsarnaev a new death penalty sentencing hearing rightly focused on the anguish of victims who may face another court proceeding and relive the trauma they experienced on April 15, 2013. Law enforcement was quick to express disappointment, some going so far as to blame the appellate judges for the victims’ ordeal should there be a second trial. Rick DesLauriers, who led the FBI’s Boston office in 2013, called the ruling an “unfortunate example of judicial activism.” The court’s careful, 224-page opinion tells a different story. At two critical moments in the 2015 trial, Tsarnaev’s defense lawyers made requests to ensure that the jury would be fair, and that jurors be given all the facts needed to decide whether Tsarnaev should live or die. Prosecutors objected to both. While their tactics may have helped win a death sentence, they also created a major risk that any death verdict would not stand on appeal, which is what happened last week. The two issues? The first concerned questions Judge George A. O’Toole Jr. asked potential jurors. The defense requested that the judge ask jurors a simple, open-ended question: “[w]hat did you know about the facts of this case before you came to court today (if anything)?” The answer would let O’Toole decide whether the juror could be fair. Prosecutors objected because hearing jurors’ answers to that question “would take forever.” O’Toole agreed, asking instead, “Whether as a result of what you have seen or read in the ... media you have formed an opinion” about the Tsarnaev’s guilt or the penalty, and whether you can set that opinion aside? That question left it up to potential jurors to decide whether they could be objective; the court would never know the information or misinformation to which they had been exposed.

On Friday, a federal appeals court overturned the death penalty verdict for Boston Marathon bomber Dzhokhar Tsarnaev, ordering a new penalty-phase trial be held. On Sunday, President Trump responded to the ruling, tweeting that "the federal government must again seek the Death Penalty in a do-over of that chapter of the original trial." So will Boston see another death penalty trial for the Boston Marathon bomber? We talk with Nancy Gertner, WBUR Legal Analyst, retired federal judge, and senior lecturer at Harvard Law School, and David Boeri, WBUR reporter emeritus.

Forcing open a painful chapter of Boston’s history, a federal appeals court on Friday overturned the death sentence of Dzhokhar Tsarnaev, who was convicted five years ago of collaborating with his brother to plant two bombs near the Boston Marathon’s finish line, and ordered a new trial to determine whether he should be put to death. In a 182-page ruling that infuriated some victims, the US Court of Appeals for the First Circuit ruled that George A. O’Toole Jr., the judge in Tsarnaev’s 2015 trial, “did not meet the standard” of fairness while presiding over jury selection. “A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully punished,” wrote Judge O. Rogeriee Thompson, who also called the bombings “one of the worst domestic terrorist attacks since the 9/11 atrocities.” The ruling does not impact Tsarnaev’s convictions in the 2013 bombings, which killed three people and wounded more than 260 others... But the ruling, which drew divided reactions from legal experts, raised the specter of another painful and protracted ordeal for the families of the injured and the dead, some of whom had warned against precisely this outcome...In challenging his death sentence, lawyers for Tsarnaev had argued that holding the trial in the city that endured the terrorist attack deprived him of his right to an impartial jury. Nancy Gertner, a former federal district court judge who now teaches criminal law at Harvard Law School, said, “The notion that a jury from Boston could fairly judge someone who made us all vulnerable seemed to me to be absurd.”

One area of significant contention in the state senate's recently passed police reform bill was whether to limit "qualified immunity,"a legal doctrine that protects police and other public employees from lawsuits. Qualified immunity has been both a lightning rod in local and national police reform debates, and a source of confusion about what it actually entails. We turn to Nancy Gertner, a retired federal judge, WBUR legal analyst and senior lecturer at Harvard Law School, on what qualified immunity is, and why many law enforcement officials are trying to hold on to it.

On Thursday, the Supreme Court released decisions in two of the most highly-anticipated cases of the term, both involving President Trump's personal financial information. We break down the rulings, and discuss the legal and political fallout with WBUR Senior News Correspondent Kimberly Atkins, and Nancy Gertner, WBUR Legal Analyst, retired federal judge and senior lecturer at Harvard Law School.

There have been indications for a while now that some Massachusetts district attorneys do not like the way Suffolk DA Rachael Rollins does her job. Now they are trying to bully her. As for Rollins — let’s just say she’s not taking it. The district attorneys’ displeasure with Rollins burst into open battle last week, with a scorching crossfire of filings in a case with life-altering implications for some inmates: those who killed in their late teenage years and are now serving life sentences without the possibility of parole. District attorneys Michael O’Keefe, Jonathan Blodgett, Michael Morrissey, and Timothy Cruz correctly believe that Rollins will not take as hard a line in the case as they would, that she will seek to lift the the no-parole mandate for some inmates. So they filed an extraordinary motion to intervene in the case — to reach into her jurisdiction to head off an outcome they won’t like. In a rocket of a court filing, Rollins responded by accusing the four men of seeking to undermine her because she is a Black woman...So hard-liner Cape and Islands DA O’Keefe and his three colleagues sought to intervene in the Suffolk case — not to file amicus briefs arguing their case, which is the normal route for registering disagreement, but to actually join the case and argue in another district’s courthouse. Experts say that kind of intervention is unprecedented. “The four DAs have no basis to intervene in the criminal case of another DA. Period. None,” said retired federal judge Nancy Gertner, who now teaches law and neuroscience at Harvard Law School. “That is insulting, and over the top.” To be fair, Rollins’s rejection of their attempts to interfere was over the top too, as official court filings go. But Rollins, who says the other DAs never gave her the courtesy of warning her about the unprecedented step they were taking, is right to be angry.

When Amy Cooper, a white woman, called 911 from an isolated patch in Central Park where she was standing with her unleashed dog on Memorial Day, she said an “African-American man” was threatening her life, emphasizing his race to the operator. Moments before Ms. Cooper made the call, the man, Christian Cooper, an avid bird-watcher, had asked her to leash her dog, and she had refused. On Monday, Ms. Cooper was charged with filing a false report, a misdemeanor punishable by up to a year in jail, the latest fallout from an encounter that resonated across the country and provoked intense discussions about how Black people are harmed when sham reports to the police are made about them by white people...People are rarely charged with filing a false police report, legal experts said, because the authorities do not want to discourage the reporting of crimes and because it can be difficult to prove that a person made a false report knowingly. But experts said that the evidence in the case against Ms. Cooper was strong and that it could have broader implications in other instances of white people making false police reports against Black people. “To the extent that this woman was arguably deploying racial stereotypes and weaponizing them, it will make people think twice,” said Nancy Gertner, a Harvard Law School professor and a retired federal judge. “It is a big deal.”

Here's the Radio Boston rundown for June 29. Tiziana Dearing is our host. The Supreme Court struck down a Louisiana law that required doctors performing abortions to have admitting privileges to nearby hospitals. We're joined by a retired federal judge and WBUR legal analyst Nancy Gertner. According to a new report from MIT and City Life/Vida Urbana, communities of color in Boston are disproportionately impacted by evictions in Boston — and it could get worse with the pandemic. We dig into the report and its implications. In an effort to show how executives of color can lead on eliminating racial inequities, a group of Black and brown business leaders in Boston has come together to create the "New Commonwealth Racial Equity And Social Justice Fund." We speak with one of the women behind the effort. We "Check The Score" and dig into Cam Newton's move to the New England Patriots.

The Supreme Court on Monday ruled on a major abortion case to start the week. The court struck down a Louisiana law that required doctors performing abortions have admitting privileges to nearby hospitals — the effects of which could have left the state with a single abortion clinic. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's legal analyst.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct...But Ms. Devos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?” There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent... “I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard, who opposed the Obama-era rules. “These are fences I’ve straddled all my life.” ...Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.

An appellate panel's decision ordering a judge to dismiss charges against former national security adviser Michael Flynn could face review by the full D.C. Circuit over issues of judicial authority and questions about whether the appeals court overstepped its own bounds. The appellate court on Wednesday ordered U.S. District Judge Emmet Sullivan to approve the U.S. Department of Justice's move to drop the two-year-old case against Flynn, who had already pled guilty but sought to withdraw the plea over alleged prosecutorial misconduct. Legal observers noted on Wednesday that the full 11-member appeals court can revisit the question of whether it had the authority to weigh in before Judge Sullivan had even ruled on the motion. Nancy Gertner, a retired federal judge and lecturer at Harvard Law School, told Law360 that the appeals court had done the "unthinkable" by issuing a writ of mandamus forcing Judge Sullivan to make a ruling before he had gotten around to making one himself. The ruling could encourage parties to attempt end-runs around federal judges by asking appellate courts to weigh in, she said. "It is simply extraordinary to order mandamus when the district court judge has not made a decision," Gertner said. "What it invites is the functional equivalent of disqualification of a trial judge by the court of appeals — you don't like what the judge is doing, you go up for mandamus." Gertner is one of two dozen former federal judges who had filed an amicus brief in the case in support of Judge Sullivan.

In a landmark ruling Monday, the Supreme Court said the worker language of the Civil Rights Act of 1964 also protects LGBTQ Americans from discrimination. We dig into this ruling and what it means for workers and employers with WBUR senior news correspondent Kimberly Atkins and retired federal judge Nancy Gertner. We also touch on other news from SCOTUS today, as well as cases still pending.