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April 01, 2002

Human Rights Hero: Honorable Nancy Gertner

by Carol V. Rose

Not so long ago, the word "hero" was most often heard in connection with sports figures and celebrities. Since the attacks on September 11, 2001, however, the word has taken on new meaning. Most of us now associate the word "hero" with firefighters and others who rescue people in imminent danger, regardless of the consequences.

Standing at five-foot, three inches, Judge Nancy Gertner, of the U.S. District Court of Massachusetts, may or may not be physically able to carry someone from a burning building, but in her twenty-three-year career as a criminal defense and civil rights lawyer, and—since 1994—in her capacity as a federal judge, Judge Gertner has rescued an untold number of people from the imminent danger of unjust imprisonment. In doing so, she has become a human rights hero.

Born and reared on the Lower East Side of Manhattan, Judge Gertner tells a wonderful story of her family’s ambitions for her. "Picture this," she says. "I have graduated Yale Law School with all sorts of fancy credentials. I am slated to work for a judge, the chief judge of the Seventh Circuit Court of Appeals. But my mother and I are having a major fight in the small kitchen of our Flushing, Queens, apartment. What’s the fight about? My mother wants me to take the Triborough Bridge Tolltaker’s Test, just in case."

Judge Gertner has never forgotten her family or the distance they, and she, traveled, as she went on to graduate from Barnard College and Yale Law School, was named as a fellow of the American College of Trial Lawyers and Lifetime Honorary member of the National Association of Criminal Defense Lawyers, taught law at Yale, Harvard, and Boston College Law Schools and, ultimately, earned an appointment to the federal bench.

Throughout this luminous career, Judge Gertner has consistently championed the rights of the poor and underrepresented in our society. Her criminal defense practice included representing defendants in high-profile murder cases, those accused of white collar crimes, women accused of manslaughter for the death of fetuses they carried, and women raising battered women syndrome as a defense. She also litigated Fourth Amendment exclusionary rule issues before the U.S. Supreme Court and the state supreme judicial court.

An important focus of her criminal practice was the protection of attorney-client privilege. She litigated the obligation of a criminal defense lawyer to respect the privilege even after the death of the client. Twice she successfully fought subpoenas requiring her to disclose the payor of her client fees, first when subpoenaed by a grand jury in 1979 and again in 1995 when the U.S. Department of Justice attempted to force her to disclose her client’s identity.

Her civil rights practice was equally groundbreaking, with a caseload that included a suit challenging the limitation on Medicaid funding of abortions, one of the first sex discrimination class actions involving an academic institution, one of the first sexual harassment cases in Massachusetts, a comparable worth class action, and several cases involving discrimination against professional women.

Judge Gertner’s willingness to speak and act on the basis of her principles continued after President Clinton appointed her to the federal bench in 1994. The day after she was confirmed as a federal judge, for example, she was served with a summons in the above-mentioned DOJ civil enforcement proceeding. She came under intense pressure from the White House to postpone her swearing until the case was over. She refused, later saying, "I thought I would be valued for having acted on the basis of principle. I thought that was what judges were supposed to do."

She has been a vocal critic of the federal sentencing guidelines and has upheld her judicial duties while also seeking to "find some humanity underneath the categories, to find some human beings underneath the stereotypes." "There are stories underneath each of the stereotypes that pass in front of me each day," Judge Gertner has written. "So these kinds of sentencing policies have led to the United States having a higher proportion of this population incarcerated than any other country in the world. Now, maybe this is acceptable if it would make a difference . . . but it does not make a difference."

Judge Gertner’s sentencing decisions are required reading for defense attorneys and prosecutors alike. Her sentencing practices reflect her willingness to stand by her words. In the case of United States v. Leviner, for example, Judge Gertner was sentencing a man for the crime of "felon in possession of a firearm," whose criminal record scored high on the sentencing guidelines. Rather than mechanically apply the guidelines and impose a long prison term, however, Judge Gertner looked closely at the record, and realized that his other offenses were nonviolent traffic offenses. As she describes in her article in this issue of Human Rights, "Since no other traffic offense accompanied the license charges, how did the man get stopped? I strongly suspected ‘Driving While Black.’ I departed downward, refusing to give literal credit to the record."

This ability to uphold and enforce the law in both a human and humane manner is what distinguishes Judge Gertner as a dispenser not of punishment alone, but of justice. Asked how to prepare to be a judge, Judge Gertner responds: "Don’t prepare. Just make principled decisions, regardless of the consequences."

Calling her a "hero" does justice to the word.

Carol V. Rose

Special Editor