Retired federal judge turned professor contradicts years of her own advocacy, risking integrity of Manafort’s deliberations

(T.S. Ellis, III, Senior U.S. District Judge for the Eastern District of Va. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.)

Harvard Law School Professor and retired federal judge Nancy Gertner took to the Washington Post op ed-pageon Thursday to attack current Federal Judge T.S. Ellis III, claiming that he has been biased in favor of the defense while presiding over the Manafort trial.

Gertner’s op-ed going after Judge Ellis is likely startling and baffling to anyone familiar with her career, especially given its timing and where it was printed, coming as it did while the jury is deliberating on the Manafort case and being published in a paper which is distributed in their area where the jurors are especially likely to see it and to be influenced by it, possibly tilting the verdict in favor of the prosecution. Now, it’s not too often that the folks at the Washington Post are able to shock me anymore, especially with their op-ed page. Nor am I easily stunned nowadays when the whims of partisan politics cause those who I previously considered to be unimpeachable to betray their once-vaulted ideals.

However, for one federal judge to do this to another in an apparent attempt to put her hands on the scales of justice while the jury is literally still out is astonishing and nearly unthinkable, even more so here where Nancy Gertner – like Judge Ellis – was once a defense attorney before rising to the federal bench. Indeed, many of Gertner’s recent readers in the Washington Post are likely unaware that she is usually known for speaking out against federal prosecutors.

Indeed, during the 2 ½ years that I’ve spent on the inside of our revolving door justice system for defending Justina Pelletier, I’ve met many of the defendants and the defense attorneys whose lives have been touched by Judge Gertner. They affectionately refer to her by just her first name, “Nancy.”

It would be an understatement to say that Nancy is adored and that her presence has been sorely missed on the bench in Boston’s federal courthouse, which is widely-perceived as perhaps the most unfair venue for defendants in criminal cases in the country.

“Nancy gave me my life back,” I was told by one very deserving gentleman who always looked out for me in here and who the feds continue to target, perhaps seeking to undo Judge Gertner’s prior benevolence.

You see, Judge Gertner was known to demonstrate mercy that is far too often absent in the federal system and to set aside the often rigid and illogical federal sentencing guidelines, which are used to calculate the length of a convict’s federal prison term.

Indeed, the deck is quite firmly rigged against defendants, especially defendants like Mr. Manafort who go through trial in custody, as Judge Ellis in fact made Manafort do. Practically everyone with any experience in the federal justice system seems to know this, from current and former judges like Ellis and Gertner to defense attorneys (as again both Ellis and Gertner each were before they donned their black robes) to prosecutors, clerks, paralegals, and right on down to the court security officers. In fact, it is not uncommon on the inside to see tattoos of the number “13½,” which stands for “12 jurors, 1 judge, and ½ a chance.”

For this reason, it is normal for innocent defendants to plead guilty, as the Washington Post also recently noted, and as I myself was unduly but unsuccessfully pressured to do. In fact, federal juries are becoming increasingly rare as fewer defendants are willing to face much longer prison sentences in order to go through what are effectively show trials. Though the odds for defendants do improve somewhat at the federal appellate level, and Gertner is technically correct that if Ellis were to err to the side of the prosecution then any such error that he might make could be appealed by Manafort, it could still take years for an appeal to be prepared, heard, and then decided. Meanwhile, prosecutors and judges go about their lives while defendants languish behind bars.

I’m sure that Gertner knows all of this all too well. She once awarded $101 million to 4 men who spent over 30 years each in federal prison after the Boston FBI framed them for murder. Incidentally, Mueller was involved in that case too when he was formerly the director of the FBI. He bitterly resisted admitting the coverup and releasing the men that the Bureau had framed.

For all of these reasons and more, it is truly astonishing that Gertner would choose to disregard the sovereignty which judges customarily afford to one another and do as she has done while the jury is deliberating in the Manafort case. Her recent action begs the question as to why. It also begs the question as to whether Gertner would be speaking out if Judge Ellis were instead a former federal prosecutor and if he were demonstrating what she felt was a clear bias against the defense – which is to be sure a hypothetical scenario, but one with real life parallels which are almost certainly far more common and which are clearly more consistent with Gertner’s experience, yet in which she rarely if ever speaks out against her fellow judges.

And this is not to say that I’m advocating against current and former judges speaking out when they sense that something is wrong. On the contrary, I wish that they would do so more often as more accountability is clearly needed.

In this particular instance though, I am left to wonder to what extent Professor Gertner might be being influenced by political ideology and perhaps by Harvard’s apparent war on the Trump administration, especially since Judge Ellis revoked Manafort’s bail — hardly the choice one might expect from a biased judge who could have issued a warning instead of incarcerating him. I also hope that Professor Gertner has not been learning through osmosis 2 of the subjects for which Harvard has now sadly become well-known: selective outrage and liberal hypocrisy. Or more concerning still, I hope that she is not doing this to climb the Harvard social ladder.

If any of the above are relevant factors, then I hope that Professor Gertner can pull herself back. I know a lot of people in here with me, perhaps myself included, who need Nancy Gertner out there – with her soul and integrity intact.

Prior to publication Judge Ellis did not immediately return our request for comment as to whether Professor Gertner’s op-ed in the Washington Post on Friday as well as CNN’s request to publish the identities of the jurors in the Manafort case might necessitate the sequestration of the jury.

Marty Gottesfeld is considered a prisoner of the Massachusetts Democratic establishment for helping to save the life of medical kidnapping victim Justina Pelletier when she was endangered by Harvard-affiliated Boston Children’s Hospital (BCH). To donate, learn more about him, or follow him on social media, go to www.FreeMartyG.com.