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Boston-Based Judge Questions The Evidence

BOSTON — In her office at the Joseph Moakley Courthouse, Judge Nancy Gertner apologizes for the clutter on her desk, but admits it’s quite normal. She sits behind piles of paper wearing a red suit, her trademark since she was a defense lawyer.

“I think I came to want to be a lawyer because I really wanted to be president of the United States,” Gertner said. “I read about Abraham Lincoln– this is so goofy. I read about Abraham Lincoln, and he was a senator before he became president and a lawyer before that, and at an early age I fixed on wanting to be a lawyer.”

Judge Nancy Gertner (Monica Brady-Myerov/WBUR)

She started out in the early 1970s as a criminal defense and civil rights attorney. In 1994 she became a United States District Court judge. While most judges shy away from the press, she writes op-ed pieces and has even blogged on occasion. Gertner herself says she’s “bizarre” for the bench.

David Frank, of Lawyers Weekly, says her rulings draw attention because they often set precedent.

“It’s a gutsy thing to do for a judge to look at an issue that’s been well-argued and make a conclusion that’s different than what some of her colleagues have done in the past,” Frank said.

In the past she’s criticized the way federal courts pick jurors, she’s allowed cameras to live-stream a court proceeding and has calculated awards differently. In one case, her calculation resulted in one of the largest payouts ever in a wrongful conviction lawsuit.

In March, Gertner issued a procedural order — not connected to any case — about the evidence presented in courtrooms every day, including bullets and fingerprints. She says that in the past, this evidence was admitted without question.

“This is saying that, should this evidence be admitted at all?” Gertner asked. “What kind of standard should be imposed on it to make sure in fact it is real science?”

Gertner wants a hearing on the evidence if it’s needed before trial. Her order was based on a 2009 report by the National Academy of Sciences that questions the science behind the analysis of fingerprints, bullets, handwriting and other evidence.

“It’s so funny coming at a time when the public watches ‘CSI’ (and) somehow believes that every piece of evidence comes under ultra-violet light,” Gertner said, laughing, “and immediately discloses all sorts of details about people. It’s just funny because this is not ‘CSI’ — what I see in court is about as far from ‘CSI’ as you could imagine.”

Take handwriting, for example. In 1999 she ruled a handwriting expert couldn’t say definitively that a writing sample could only have been written by one person. Even testimony that everyone’s fingerprints are unique has not been scientifically proven, says Gertner.

“People who testify to matches in DNA include probability findings. And yet, fingerprint examiners and ballistic examiners in front of me would say, ‘This bullet matches this gun to the exclusion of all others in the world!'”

– Judge Nancy Gertner

“DNA doesn’t draw that kind of conclusion,” she said. “People who testify to matches in DNA include probability findings. And yet, fingerprint examiners in front of me and ballistic examiners in front of me would say, ‘This bullet matches this gun to the exclusion of all others in the world!’ This is way past the science that I understand.”

Police in Boston say Gertner’s evidence order will establish needed ground rules.

“As long as everybody knows what the rules are then you can plan accordingly,” said Miller Thomas, president of the Boston Police Detectives Union. “The police can get their expert witnesses that they need to get and have them all ready to go forward in cases so there’s no surprises. That’s a benefit for everybody, both the defendant and the prosecution.”

It’s highly unusual for a federal judge to questioned evidence in a procedural order. But courts are taking a closer look. The U.S. Supreme Court recently ruled lab technicians who prepare reports on drugs should be available for cross examination in the courtroom. Gertner says she issued her order because she’s concerned about how using evidence that’s been accepted for years could be putting innocent people behind bars.

“It’s not a game,” Gertner said. “It’s about convicting the right person and doing the best we can at every stage to make sure that’s what we are doing.”

What the judge wants to keep doing is push for better science, better evidence and convictions that she can have more faith in. At 63, Gertner jokingly says she’s now too old to follow Lincoln’s path to the presidency. But she certainly has a lot of material for her memoir — due out next year.

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