The federal judge who socked the FBI with a bill for damages totaling $101.7-million for railroading five men to prison where they spent 20 years for a murder they didn’t commit has retired from the bench and looking about for new challenges. “I have loved being a judge,” said U.S. District Court Judge for Massachusetts Nancy Gertner, “but I want another adventure.”
Gertner, who steps down this month after 17 years on the bench during which she presided over many landmark cases, made her comments in a pre-recorded interview to air at 11 A.M. Saturday, September 10th on New England Cable News and at 11 A.M. on Sunday, September 11th on Comcast SportsNet. The broadcast will also be shown nationally.
“I actually have a book in me about judging, which I can’t write until I leave the bench,” she said. Speaking about her future, Judge Gertner said, “I want to be able to write, and think, and speak, and do something different. I’m of a generation that believes retirement is going to happen perhaps when I’m 90. I’m not close.”
Judge Gertner is the guest of “Educational Forum” of Comcast’s SportsNet, produced by the Massachusetts School of Law at Andover and hosted by Assistant Dean Diane Sullivan.
The eminent jurist noted for her legal victories in the fields of civil rights and feminism prior to her appointment to the bench in 1994, said, “If I wanted to do other things, international human rights work, I need to do it now. And given that opportunity that’s what I’m going to do.”
Judge Gertner was interviewed in connection with her book “In Defense of Women: Memoirs of an Unrepentant Advocate”(Random House), which has received lavish praise from critics and authors. Legal writer Jeffrey Toobin described it as “fascinating, fearless, and fun,” and author Scott Turow termed it “A wonderfully readable and involving memoir.”
Gertner, who planned initially after graduating from Yale Law School to spend a few years practicing law before teaching the subject became so engrossed in her legal practice that she spent 24 years at it. Her first notable legal victory that turned heads was representing Susan Saxe, charged with participating in the robbery of the State Street Bank and Trust Company in Brighton. Saxe at the time was a senior at Brandeis who got involved with another woman and three men with the idea “that they were going to rob the bank for the purpose of getting money for the antiwar effort.” When one of the men shot and killed a police officer, Saxe and others were charged with felony murder.
Only 29 at the time and unused to trying capital cases,Gertner recalled, “I said yes because I had to come to grips with my fears. I couldn’t say, ‘Oh, sorry, I’m afraid of doing this,’ or, ‘Oh, I don’t have the experience.’” Saxe was 25 and wanted an all-woman defense team and turned to Gertner. “I had to talk to myself every day to get myself to argue with the judge and argue with the lawyers and get myself to a position of power. But that’s what (Saxe) wanted and we were all doing it together. I write in the book that I didn’t look much like a lawyer then, but none of us did. So it was that I just couldn’t turn it down.”
Judge Gertner goes on to say that the prosecution expected her to mount a defense that rationalized the bank robbery on grounds that the Viet Nam war was raging and anti-war activists believed they needed the money to push their cause. Accordingly, the prosecution held back two Saxe letters that were essentially confessions of guilt and rested its case, even though they lacked an ironclad identification of Saxe at the scene. In a surprise maneuver, lawyer Gertner, instead of putting a parade of anti-war activists on the stand, got up and, she recalled, speaking in a nervous voice that sounded like Minnie Mouse, said, “We rest (our case) as well.”
Host Sullivan of MSLAW interjected at this point that one of the prosecutors thought the maneuver by Gertner “was really brilliant because no one expected you to win, so if you won, it would be the win of the century.”
Judge Gertner said her victory in the Saxe case changed her life because “the experience of pouring your heart into something and of winning…not for gobs of money, but winning for a person, was seductive, and I couldn’t give it up.” After the Saxe case, she said, “my phone rang off the hook.” The people who called largely were men accused of rape and they were not calling her because she was the best lawyer in Boston, she says, “but because I was a woman and they wanted my symbolism, not just my skills, and I was going to use that symbolism in the cases I cared about. I didn’t want to use it in every case. What I say is that if these guys couldn’t have gotten a lawyer anywhere in the galaxy, then ethically I would have had to represent them. But that really wasn’t the case.”
Saxe said that when she began practicing in the Boston Municipal Court and the Suffolk Superior Court that people were saying “outrageous” things to her that exhibited “a profound lack of respect” for her as a woman. Once, when lawyer Gertner asked a judge if another woman could sit by her, the judge replied, “Gee, I thought one woman in the courtroom was bad enough.’ “And I was a lawyer, a supplicant in his court. What do I do? Do I tell him this is an outrageous thing (to say)?”
Gertner says when she was in practice she dressed in red suits and was known for keeping files on the remarks of sexist lawyers that disgusted her. If nothing else, she was a stunning-looking advocate for the feminist clients she represented. The title of her book, “In Defense of Women,” she added, also has to do with “the notion of putting women in places that you didn’t anticipate that they would be, and the criminal and felony courts, and the murder cases, were the last bastion of male domination and I wanted to be there. I wanted to be there.”
Gertner became a leader in knocking down barriers to women’s progress in the work place and fighting sexual harassment. “You don’t change something by suddenly taking the signs down off the door. It takes education, it takes affirmative changes and sexual harassment was a classic example of that.”
“The signs were down on the door,” she noted, “but if you’re going to keep on demeaning me, I’m not going to feel welcome or comfortable here, and I’m not going to stay. And the courts began to realize that sexual harassment was a form of discrimination against women, and provided an impediment for women’s progress, that’s when the law began to change.”
Gertner, typically, represented a woman partner in the brokerage firm of Merrill Lynch that, at the time she joined, was all male, and the parties “would have cakes in the shape of penises, or there would be a stripper who would come out of the cake.” Gertner recalled, “She was a tough lady and would say, ‘All right, I’m going to take this but she shouldn’t have to take it’ and thought it didn’t matter in terms of money until one day she realized that ‘to some degree the same attitudes…put their finger on her scale in terms of her money.’” What would happen is that male brokers could invite their clients to parties for the Bruins or the Celtics and the woman broker would not be invited. “There would be offerings to the men but not to the women, and when brokers left their book, as it was called, their accounts would be distributed, and she would not get as much (as the men) and all of a sudden she realized it really was affecting the bottom line, so she sued,” Gertner said.
Gertner told how she created a narrative for the court room that began with “the penis cakes and strippers,” and ending up with this difference in her client’s pay, and that her client felt compelled to leave (the firm) when she realized that these differences had been going on. “The judge didn’t award us damages but awarded a quarter of a million in punitive damages,” Gertner said.
When Gertner was interviewed by Senator Edward Kennedy for a court vacancy in 1994 she stood up at the end of the interview to leave but before doing so she told him, “’Senator, you know, I have a bone to pick with you.’ And his staff members around him who were trying very hard to get me this job, went (gasp) what is she going to say now? And I said, ‘Senator, just once you should reward a civil rights career. It doesn’t have to be me, but just once reward a civil rights career.’ And he didn’t say anything but I’m told that that’s actually what made the difference to him.”
Gertner passed along copies of the glowing letters she had received from prosecutors that she had opposed in court. “You couldn’t say that I had been underhanded or didn’t have integrity.” But the Boston Herald wrote an editorial comparing her to Lorena Bobbitt, which she paraphrased with the words, “Judge Gertner will do to justice with her gavel what Lorena did to her husband with a kitchen knife.” The editorial, however, “scuttled my nomination temporarily…there was the bitch metaphor that bore no relationship to the human being that I was.” In the end, though, some horse-trading on the Senate floor enabled Senator Kennedy to push through Gertner’s nomination.
In her Comcast interview, Judge Gertner said she liked to hear cases that “made a difference.” Perhaps the most prominent of these was the case brought against the Federal Bureau of Investigation(FBI) by a number of men who had been imprisoned for 20 years because the FBI had cultivated an informant who accused them of a murder they didn’t commit. “The premise of the law suit was that the FBI knew that he was lying and let him testify and, in fact, shored up his testimony and kept them from uncovering all of this. It’s a really horrible tale.”
Judge Gertner goes on to say that the case came before her which she heard alone without a jury and involved reading “thousands and thousands of pages of documents…You have to do it, and here the witnesses were these papers, so I wrote a lengthy decision awarding damages to them under the Federal Tort Claims Act, damages that were over $100-million and that was an extraordinary case.” (That decision was handed down in July, 2006, and the $101.7-million sum was a record.)
Throughout her legal and judicial careers, it is fair to say that Nancy Gertner didn’t “go along to get along” but hewed her own way and succeeded by dint of her hard work, innovative legal techniques and sheer chutzpah. As such, she has become a role model for women considering the legal profession as a career.
The broadcast “Educational Forum” is a presentation of the Massachusetts School of Law at Andover. The law school was founded in 1988 expressly for the purpose of providing a rigorous and practical legal education at an affordable tuition for students who would otherwise not be able to enter the legal profession. Through its companion television broadcasts, conferences and publications, MSLAW also serves the public by presenting information on the critical subjects of our times.