Nancy Gertner

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.

An article by Nancy Gertner and Paul Butler: If equal justice under the law had applied to George Floyd — justice equal to what the four cops now charged with his murder have received — he would never even have been arrested. The tale of these arrests — one of a black man and that of four police officers — explains why there is justifiable rage on America’s streets. On May 25, a store clerk in Minneapolis called the police because he suspected that Floyd had paid for a pack of cigarettes with a counterfeit $20 bill. But the store owner later said: “Most of the times when patrons give us a counterfeit bill, they don’t even know it’s fake.” The call should have started an investigation; that’s not what happened to Floyd. Instead, within minutes of the police officers’ arrival, Floyd was facedown on the street, hands tied behind his back, with Derek Chauvin pressing his knee into his neck for nearly nine minutes, while two other cops restrained Floyd by pressing down on his back and legs, and the fourth officer kept distressed passersby from intervening. Floyd begged for his life, telling them that he couldn’t breathe. Soon, his body went limp and silent. He was declared dead at the hospital. Chauvin was caught killing a man on video, while several eyewitnesses pleaded with him to stop. Yet he appeared completely calm, bored even, one hand nonchalantly in his pocket as Floyd died beneath his knee. So casually did the cops arrest, brutalize and kill Floyd for nothing. And just as easily did Chauvin and the other three officers leave the scene of their crime. No police cars swarmed the scene to arrest the four officers. Chauvin went home that night a free man, and for the next three nights as well. The other officers were not arrested until Wednesday.

An article by Nancy Gertner: True to form, President Donald Trump appears poised to blunder into an area fraught with constitutional, not to mention human peril. He has threatened to deploy the United States military if “a city or state refuses to take actions that are necessary to defend the life and property of their residents,” to, as he says, “stop the rioting and looting.” There is an irony here. Trump was unwilling to deploy the considerable authority he had under the Defense Production Act of 1950 to do what needed to be done in the face of the pandemic, but is willing to deploy authority he may well not have — or should not exercise — in the face of protests and civil disorder. Trump refused to invoke the full power of the Defense Production Act, which would enable the government to direct private companies to ensure the procurement of vital equipment needed to fight the coronavirus pandemic. Governors and members of Congress pleaded for its invocation. He relented only to get General Motors to step up ventilator production and 3M to manufacture N-95 masks, but no further. It would be, he said, the equivalent of “nationalizing our business,” which we should not do. “Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well,” he said. But, of course, it’s OK to be Venezuela when Trump threatens federal military force to quell domestic disputes.

As coronavirus cases have spread, law firms across the nation have been stepping up to help, from providing pro bono legal assistance to fundraisers and donations. Law360 rounds up some of the latest charity efforts from the legal community in response to the pandemic. Clyde Bergstresser, a malpractice attorney at Boston-based boutique Bergstresser & Pollock PC, has launched a charity with the support of other attorneys in the community to raise money to support the frontline health care workers battling the coronavirus. Joining Bergstresser in the effort are his colleague Russell Pollock, Choate Hall & Stewart LLP partner Joan Lukey, Prince Lobel Tye LLP partner Walter Prince, Morgan Lewis & Bockius LLP partner Jonathan Albano, Smith Duggan Buell & Rufo LLP partner Christopher Duggan and former U.S. District Judge and current Harvard Law School lecturer Nancy Gertner.

A group of two-dozen former federal judges on Friday defended Judge Emmet Sullivan’s refusal to immediately approve the Justice Department’s bid to drop the prosecution of Michael Flynn, stepping into a politically fraught case that has raised fresh questions about the extent of the judiciary’s authority over criminal prosecutions. In a 24-page friend-of-the-court brief, the former judges asserted Sullivan has full authority to review the government’s effort to abandon the prosecution of Flynn, who has twice admitted to lying to federal investigators about his past discussions with the Russian ambassador to the United States...The former judges behind Friday’s brief had been appointed by Democratic and Republican presidents, and they said they “represented centuries of judicial experience and have presided over thousands of criminal cases.” The signatories included Nancy Gertner, a Harvard Law School professor and former federal judge in Massachusetts, along with former Manhattan federal judge Shira Scheindlin and Howard Matz, who served as a federal trial judge in Los Angeles from 1998 until 2011. In their brief, the former judges defended Sullivan’s inquiry into the Justice Department’s abrupt abandonment of the case, more than two years after Flynn initially pleaded guilty and agreed to cooperate with the special counsel investigation into Russian interference in the 2016 election. Flynn subsequently fired his lawyers at Covington and Burling, and his new legal team has spent months arguing that Flynn should be allowed to walk away from his guilty plea.

Actress Lori Loughlin and her husband Mossimo Giannulli have pleaded guilty to conspiracy charges in the college admissions case known as Varsity Blues. Via video conference on Friday, the California couple admitted that they funneled half a million dollars through a bogus charity to get their two daughters into the University of Southern California as fake athletic recruits. Loughlin agreed to serve two months in federal prison; Giannulli five. The couple will also pay more than $400,000 in fines. Sentencing was set for July 30. During the video conference, Loughlin and Giannulli barely spoke, sitting shoulder to shoulder with their attorneys in what appeared to be their home. Each said they are high school graduates but did not graduate from college. Retired federal judge Nancy Gertner argues this plea agreement represents overreach by federal prosecutors. “If you look at the early papers in the case, everything that the government knows now they knew in the beginning,” Gertner said. “Is this genuine additional misconduct or is it [they] just fought the case?” Gertner, a long-time critic of federal sentencing guidelines, thinks the government is using Loughlin and Giannulli as examples for the other parents charged in the case, and they’re being punished for simply defending themselves. “The sentencing guidelines make more culpable the parents who paid more,” Gertner said. “That may mean that they were just stupid — not very good bargainers — not necessarily that they were more culpable.”

Judge Emmet G. Sullivan, who is presiding over the case against President Trump’s former national security adviser Michael T. Flynn, has appointed a former mafia prosecutor and retired federal judge, John Gleeson, to argue against Attorney General William P. Barr’s attempt to drop the case. The case against Mr. Flynn was developed by the F.B.I. agents working on the Trump-Russia investigation, brought by the office of the former special counsel, Robert S. Mueller III, and is now being attacked by Mr. Barr as illegitimate. It has raised a complex stew of issues for Judge Sullivan to sort through...Is Mr. Barr’s attempt to drop the case unusual? Highly unusual. Legal experts have struggled to identify any precedent for the Justice Department dropping such a case after obtaining a guilty plea, and more than 2,300 department veterans accused Mr. Barr in an open letter of subverting a justice system that is supposed to treat everyone equally. “I would be astonished if the Department of Justice made these arguments in any other case in the country,” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “This is the Flynn rule.” ...Did the F.B.I. set out to see whether Mr. Flynn would lie? There are reasons to believe agents did so — raising the question of whether that would be an abuse, as Mr. Flynn’s supporters maintain, or a normal investigative step...Hundreds of people every year are charged and convicted of lying to federal authorities, and in the courtroom, entrapment defenses rarely work. Ronald S. Sullivan Jr., a former federal defense lawyer who teaches criminal law at Harvard Law School, said that he objected to the way the F.B.I. treated criminal suspects, but that if Mr. Flynn’s case was tossed out on that basis, legions of other cases should be, too. “The F.B.I. did what the F.B.I. normally does,” he said. “General Flynn is getting a form of special justice that is repugnant to the very foundation on which our justice system rests.”

Here's the Radio Boston rundown for May 12...The Supreme Court heard arguments today in three cases that could potentially transform the power of the executive branch. We break them down with WBUR's legal analyst and retired federal judge Nancy Gertner. Loneliness was a growing concern in the U.S. even before coronavirus lockdowns. We speak with Dr. Vivek Murthy, the former surgeon general of the United States under President Obama, on his biggest worries about loneliness in the U.S. now.

The fate of former national security adviser Michael Flynn lies in the hands of a federal judge with an established reputation of being a fiercely independent thinker. U.S. District Judge Emmet Sullivan, who was appointed to the bench in 1994 by former President Clinton, will determine whether to grant the request by the Department of Justice (DOJ) to drop charges against Flynn, who pleaded guilty in December 2017 to lying to federal agents about conversations he had with then-Russian ambassador Sergey Kislyak. On Tuesday evening, Sullivan pulled a surprise, announcing in a court filing that he would allow interested parties to weigh in on the case with amicus briefs, an unusual move for a criminal prosecution, and enter a scheduling order “at the appropriate time.” The move was opposed by Flynn's lawyers, who argued that it would be inappropriate to allow third parties to weigh in on the case...Nancy Gertner, a former judge for the U.S. District Court in Massachusetts who was appointed to the bench in 1994 and now teaches at Harvard, said she expects Sullivan to press the DOJ on their decisionmaking. “I actually expect him to call witnesses and demand that the government justify taking what is an extraordinarily unusual position, extraordinarily unusual, and find out why,” said Gertner... “Defense lawyers all across the country are salivating about this memo because if this applies in other cases, a lot of people are going to walk free. But of course, it won’t apply in other cases,” said Gertner. “I think people are certainly going to try to use it, but the point of this is Shea distorted the law in order to move to dismiss the accusations against Flynn.”

A federal judge overseeing the criminal case of President Trump’s former national security adviser Michael T. Flynn opened the door late Tuesday for legal experts and other outside parties to oppose the Justice Department’s motion to drop the case, suggesting he has at least some skepticism about the government’s argument that Mr. Flynn should never have been charged. In a brief order, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia said he would set a schedule for outside parties to present arguments about the government’s request to dismiss the case. He did not directly address the Justice Department’s motion to drop the charge, but legal experts said he appeared open to considering not only the department’s arguments but also those who have challenged its move as politically motivated...But its reversal raised serious questions about whether the Justice Department was treating Mr. Flynn differently from the hundreds of other defendants who are convicted each year of lying to federal authorities. “The judge could be concerned this is cronyism,” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “I would predict that he holds a hearing and has the prosecutors justify the decision they made.” “When a defendant has gone all the way down the line to pleading guilty, the bar to dismiss has to be high,” she said.

The Department of Justice decided last week that it was dropping all criminal charges against Donald Trump’s former national security advisor, Michael Flynn. In 2017, Flynn pleaded guilty FBI for lying to the FBI about his conversations with the then Russian ambassador and made a plea deal with special counsel Robert Mueller. During her many years of working within the legal system, retired federal judge Nancy Gertner told Jim Braude on WGBH News' Greater Boston that she has never seen the DOJ drop a case like this. “I’ve seen the DOJ dismiss cases, but not after someone pleaded guilty to them, twice,” she said. Attorney General William Barr rationalized the DOJ’s decision during an interview with CBS NEWS Thursday. "People sometimes plead to things that turn out not to be crimes, and the Department of Justice is not persuaded that this was material to any legitimate counterintelligence investigation. So it was not a crime," he said. Gertner said she would not let either Flynn or Barr off the hook if she was presiding over the case. “I would have certainly held a hearing. Bring Barr into the court room,” she said. “Who put their thumb on the scale here?” Gertner is worried that this decision could hold precedent for future criminal cases. “If the standards that Barr used in this memo were applied to other cases across the country, they would all be thrown out,” she said.

An article by Nancy Gertner: Even with the coronavirus spreading in prisons, even though incarceration could be fatal and the crime rate during the pandemic has cratered, some officials will not listen to public health experts. In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy. In a second federal courtroom, another judge refused pretrial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.

Hull’s David Maglio says he began to feel ill on April 2, shortly after being transferred from a prison in Massachusetts to the Donald W. Wyatt Detention Facility. He put in sick slips, but his complaints went unanswered, he says...On April 21, Maglio, of Hull, became the first Wyatt detainee to test positive for COVID-19, the illness caused by the novel coronavirus. At the time, Maglio was one of three inmates tested for the potentially deadly virus out of about 580 being held at the quasi-public prison. Since then, seven others -- one a 43-year-old Mexican national in U.S. Customs and Enforcement custody -- have tested positive. So far, no staff been found to be positive for COVID-19...Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard Law School, was aghast by the prison’s treatment of Maglio. “Taking care of business now is like closing the barn door after the horses escaped,” Gertner said Monday. “Eight inmates is an outbreak. ... It’s clear they didn’t do the things they needed to do before an outbreak.” Prisons face the unique challenges of confronting the virus while housing a vulnerable population with acute health risks who cannot socially distance with medical care that is often not up to snuff, she said. An additional obstacle is that inmates may be reluctant to report symptoms due to the punitive nature of isolation; there must be incentives, she said. She urged that reducing Wyatt’s numbers is the only way to ensure that detainees can socially distance, as has been seen at prisons elsewhere. Wyatt is now at 75% capacity.

Around the country, protesters have started pushing back against stay-at-home orders and advisories, calling for a reopening of normal business operations. On Saturday, hundreds of people reportedly assembled outside the New Hampshire statehouse to protest Gov. Sununu's handling of the coronavirus crisis. We'll hear from a protester and talk about the intersection between our civil liberties and public safety with WBUR's legal analyst and retired federal judge Nancy Gertner. Plus, we'll get perspective from Dr. Shira Doron, an infectious disease physician and hospital epidemiologist at Tufts Medical Center, who will explain why our leaders have turned to such extreme measures in combating the coronavirus.

The federal judge overseeing the criminal case against Roger J. Stone Jr. refused on Thursday to grant him a new trial, rejecting the defense’s argument of juror misconduct that President Trump has also repeatedly trumpeted. Judge Amy Berman Jackson of the United States District Court in Washington ordered Mr. Stone to surrender to the federal Bureau of Prisons as soon as he is notified to do so. She also released him and his lawyers from a gag order she imposed months ago. The judge’s decision appears to end one of the most politically fraught federal criminal cases in recent years. In a last-ditch effort to keep their client out of prison, Mr. Stone’s lawyers had claimed that the jury forewoman had improperly concealed a bias against Mr. Stone, justifying a new trial...Prosecutors argued that the defense motion for a new trial was “nothing more than an attempt to fuel its public campaign to undermine the jury’s verdict through a frivolous juror misconduct claim.” Nonetheless, in an unusual move, Judge Jackson held a four-hour hearing on the motion, summoning a dozen jurors back to the courtroom in February, three months after they had rendered a verdict. Nancy Gertner, a retired federal judge who now teaches at Harvard Law School, said she believed the judge was being especially careful because the case had been so high-profile, not because the president was “breathing down her neck.” “I would have done what she did,” she said.

It's clearly not time now, but a big question on everyone's minds, including the President Donald Trump's, is how and when the country reopens. President Trump claimed Monday night he has "total authority" over the decision, but two groups of state governors, including a seven-state coalition with Massachusetts, say they'll make that call. We discuss with WBUR Senior Political Reporter Anthony Brooks and WBUR Legal Analyst Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

Here's the Radio Boston rundown for April 14. Tiziana Dearing is our host. President Donald Trump says he has the authority re-open the country for business. But Gov. Charlie Baker has joined the east coast states making their own plan. WBUR's Anthony Brooks and WBUR legal analyst Nancy Gertner break down the tension. We take listener calls and speak with people who are struggling to care for people at home during the coronavirus pandemic and what support they need most.

To prevent the spread of the deadly coronavirus that’s killed more than 20,000 Americans, at least 316 million people across the country have been urged — and in some cases, ordered — to stay home. While most have voluntarily complied in an effort to protect themselves and others from COVID-19, scofflaws put police in a pickle: How do you enforce public health directives at a time when jails and prisons incubate the very disease you’re trying to suppress? “There’s the dilemma — you don’t want to put anyone in prison,” said Judge Nancy Gertner, a professor at Harvard Law School. “Detention facilities are petri dishes. You send someone to jail, it could be a death sentence.” Jail as capital punishment is no hyperbole: Cook County Jail in Illinois is the hardest-hit per-capita COVID-19 site in the country, with more than 350 cases and at least two inmate deaths. Rikers Island in New York City has had over 700 cases between inmates, staff and health care workers, including seven jail employee deaths and two inmate deaths.

Debate over efforts to head off a disastrous coronavirus outbreak inside Massachusetts prisons and jails intensified Tuesday, as several attorneys for and against the wide release of inmates presented arguments in a four-hour telephone hearing, the first in the history of the state’s supreme court. With the rate of coronavirus infection rising, and most of the state relegated to working in isolation, justices and attorneys appeared via phone to debate a petition, filed last week, for inmates’ release. The coalition, which includes the Committee for Public Counsel Services (CPCS), the American Civil Liberties Union of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers, says that crowded and unsanitary conditions make COVID-19 “virtually impossible” to stop in prisons and county jails...To some observers, keeping people in cramped, possibly unsanitary conditions could amount to a death sentence. “These people were sentenced, but not sentenced to death,” a retired federal judge, Nancy Gertner, said in an interview. “This is a tragedy in the making.” So far, the department’s efforts to prevent a wide outbreak of the virus have mostly worked. Only 17 of the estimated 8,000 inmates in state custody have turned up infected with the virus, all of them housed at the Massachusetts Treatment Center in Bridgewater. Five Department of Correction staff have tested positive.

An article by Nancy Gertner and John Reinstein: Prisons are Petri dishes for disease in the best of times, but they could become incubators for COVID-19 now. Prisoners sleep, eat, and shower in enclosed quarters with limited ventilation. Social distancing is impossible. Prison populations also have greater rates of serious health problems than the general population. Many are elderly, and have diabetes, cardiovascular disease, asthma, and cancer, conditions that, if they become infected with COVID-19, make them more likely to require intensive care and especially vulnerable to dying of the disease. On Saturday, officials announced the first case of COVID-19 at the Massachusetts Treatment Center in Bridgewater. An inmate serving a life sentence and his roommate have been quarantined from each other and the rest of the inmate population. We don’t have to speculate about what will happen as the disease hits the general prison system. We have seen it.