Nancy Gertner

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.

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.”