Judge Nancy Gertner launched her career by defending Susan Saxe, an anti-war demonstrator accused of robbery and felony murder. Judge Gertner reveals the details of how she achieved the “win of the century” in the Saxe case, much to the surprise of herself, her client, the prosecutors and the press. She goes on to describe her pioneering work as a woman lawyer in the 70′s and 80′s, including the astonishing lack of respect she experienced as a young female lawyer, her decision to take on abortion cases, her experience as one of the first women serving the defense in murder cases, her significant work in anti-discrimination cases and how she managed to balance both her career and her family.

Judge Nancy Gertner joins Massachusetts School of Law Professor Diane Sullivan on this episode of The Massachusetts School of Law’s Educational Forum. Judge Gertern and Professor Sullivan discuss the judge’s new book, In Defense of Women-Memoirs of and Unrepentant Advocate.

This episode of The MSL Educational Forum has been nominated for a Boston/New England  Emmy Award, and is the recipient of a Gracie Award.

Educational Video from The Massachusetts School of Law.

Below is a very rough transcript of the Judge Nancy Gertner Video courtesy of YouTube Captions

well first there was
Sonia Sotomayor wo
went first
and uh… she’s a little younger than me
and she said
first you go to this wonderful law school
you do very well
you and graduate and and then you for the
government
US Attorney’s Office, district attorney’s
office
then you work for a firm
you care about issues but you’re cautious
about how you say that
and then you become a judge
and they turned to me
and i said
first you represent the first lesbian
feminist radical revolutionary accused
of killing a cop
you could find that would be your first
case on prime time and then you do every
abortion cases in the commonwealth of
massachusetts you speak out in the
boston common
and for the final coup de grace
you marry the a_c_l_u_
and then you become a judge
they didn’t know what to say
That was Federal Judge Nancy Gertner
telling us of one of the many
wonderful and interesting stories of her
book
in defense of women
memoirs of and unrepentant advocate
hello and welcome to the education;
reform
produced by the massachusetts school of
law at andover i’m your host diane
sullivan
and in defense of women is the topic for
the day’s show
in her earlier years nancy gertner
wanted to go into politics she want to
run for the senate and one day yes be
president
she attended yale law school and her
dreams changed she wanted to write she
wanted to be a professor
during those years in law school the antiwar
movement and the woman’s movement began
law student Nancy Gertner planned to spend a
few years in practice and then to teach
or so she thought
her few years well they turned into
twenty four years practically
We begin our journey with judge gertner
after she has graduated from law school
and begins her first case which was the
very famous susan saxe case
susan being one of only eight women
ever to be listed on the f_b_i_’s most
wanted list
the sax case was
involved a robbery in nineteen
seventy the anti-war movement
had been largely non-violent
and then around the seventies the early
seventies
when the war was not ending and the
passions were rising all of a sudden
they were people across the country
who were doing things like
add uh… you know there were explosives
that were found in a townhouse in
greenwich village
it was suddenly taking a very different
turn
then civil disobedience so
susan was charged with
participating in a bank robbery the
state street bank and trust company in
brighton
uh… there were five people involved
three men and two women
the two women were susan who
was a brandeis senior and kathy
power
and uh… the idea was that they were
going to rob the bank
for the purpose of getting money for the
antiwar effort and there had been other
banks that they had robbed and as well
three people were in the bank one was
guarding the entrance and one was in the
switch car
when the robbery was over
they got into the switch car but man
who was guarding the bank
for them
didn’t realize the robbery was over
and he shot a police officer a very
well-known police officer in the back
so susan was charged with not just
robbery
but murder felony murder
i didn’t know her
although we probably were in the same
demonstrations on the new haven green
some years before
uh… but she figured the
three men had been
prosecuted and convicted
and really very quickly she figured
she had no hope
this is not a great way to
and great vote of
confidence in a lawyer but she figured she had no hope
that there was no way that
she was gonna get out of this
with her life
there was no death penalty but she was surely
going to get life imprisonment and so
the story was that
for her last
moment on the stage she wanted to be
true to her
values
and true to her values meant
uh… by that point
a woman lawyer in and and all women team
I had never ever expected that she was
going to ask me i had been a supporting
player when the
case was in another another city
so when she asked me i
write that didn’t know how to say no
it was it was very interesting and i
said yes because i
had to come to grips with my fears uh…
i just couldn’t say no i
couldn’t say
oh i’m sorry i’m afraid of doing this
or
oh I don’t have experience
i stay in the book I told her
i had no experience but it was perfectly
obvious i mean i was twenty nine and she
was twenty five
so i
you know i took the case on on those
terms but she wanted women to be in the
lead
and it was a little bit of a contrivance
because we were all
new lawyers
leading i had a talk to myself everyday to
get myself to you know argue with the
judge and argue with the lawyers and get
myself to a position of power
but that’s what she that’s what she
wanted and we were all doing it together
i write in the book that you know i
didn’t look much like a lawyer then
but none of us did so it was
I just couldn’t turn it down and
i was also you know kind of case
when you represent someone
who’s not unlike you
uh… i felt like i was saving our
lives we were both in this together
uh… life was everything i had in front
of me and
she as well so i couldn’t turn it
down
at one point uh… it was interesting
the prosecution has called twenty four
witness
witnesses and they rest
you do not call a single witness
why the all-or-nothing gamble
it evolved one of the things that
is very hard for a new lawyer is to do
anything at the last minute to do
anything
to sort of be flexible
this really evolved
uh…
when the case began we had
a reasonable doubt defense which was
you know the the they really had not
honed on the woman in the bank they
really could not identify her in fact one
witness identified me
as the women in that bank which was
really troubling
so the government’s case
was not as strong as we thought it would be
and it was going to be a reasonable
doubt defense
but as an alternative
we were
considering
not very seriously to be sure
trying the anti war effort
so while we were attacking the
government’s case
people were coming in from all around
the country
who were the icons of the antiwar movement
for the purpose of representing of being
the defense of the defense would have
been
you know this is the the war
was terrible and this is why you needed
to
do these kinds of actions
in truth there was not
a singled doubt that i would never put
on such a difference
there was simply no way to justify
the felony murder charge
with the war it just was unimaginable
but we were keeping our
options open and more significantly
uh… we were everyone
underestimated us so the
press and the prosecutor all believed
that we would try this
really crazy defense
and they as a result of that the
government had
two pieces of evidence
that were that they reserved
they had witnesses who could not
identify susan and note that it was pre
d_n_a_ nothing like that but they had two
letters
which were the kind of plaintive letters
young girls sometimes write it was
to knife father and it was to my father and to
my rabbi
by the time you receive these letters
you will know what your little girl has been
doing
so the government have those letters
which were essentially confessions
but they reserved them
because they thought gertner was
about to do this
ridiculous antiwar
defense
and so I
when they rested without
those letters
it was clear that the most effective
strategy
was to rest because then the letters
would be kept out letters wouldn’t
come in brilliant brilliant it was
i was scared out of my mind i mean I
conferred with my partners but it was
this moment of
actually i describe it was this perry
mason moment you know where all of
a sudden
the government says the
government rests and i get up and
when i got nervous i sounded like minnie
mouse and I go in that case in that case we rest as well
and then people rushed out of the
courtroom
it was great
except that
at that moment all of uh…
all of the the lack of confidence in me came
out
the press
didn’t see it is brilliant initially
figured that this was a young woman who
had made a very serious
mistake
and when
the jury was nine two three for
acquittal and then ten to two and then
eleven to one
all of a sudden they started to look at
me as someone who may be maybe i did
know what i was doing you
know it so it was really quite a change
and it was funny one of the prosecutors
says well you know
it was really he doesn’t say it directly but it
was really brilliant because no one
expected you to win so
if you won it would be the win of the
the century i think is what he said
you know it’s a lesson for one of the
things that young women lawyers can do
is to take advantage of being
underestimated you know you
on the one hand you get all of the
the sort of lack of confidence in
who you are but on the other hand there
is the
you don’t think i can do it well
let’s just show you that’s right so
that’s what that was about
you mentioned in the book that once
you started practicing law you in fact
found harder than you ever envisioned
when you were at yale how so
when we were in law school
at this time
it was the beginning of the women’s
movement the second wave of the women’s
movement and we were constantly
correcting people who were
you know calling women girls and
making sexist comments and you would
go
up to the to the other law students and say
oh you know you shouldn’t say that or
go up to the judge by the way i think
that that’s an inappropriate way of
describing it
and we were incredibly out there
when i got into court
suffix superior court the boston
municipal court
people were saying things to be
that were so outrageous
it wasn’t in a matter of a minor
correction as we were doing with our
colleagues at yale
it was a profound lack of respect that i
was feeling that
i had never felt
before i mean i described in the book
about people do you know you go to the
judge with a
now the woman sitting next to me it’s a
judge can she sit with me and he’d say
out loud gee i thought one woman in a
courtroom is bad enough
and i can’t tell you how
discombobulating that was because
it’s like he is at such a distance
from respect
that you don’t even know how to begin
and you’re now a lawyer supplicant
in his court
what do you do do you know tell him
them that this is an outrageous
thing and you just start
you know how do you confront him in and
then look like a humorless feminist
uh… what happened the good news of
that is that i figured out
that my best
was to be funny
and i could
i could be funny you know i could make
fun of that situation and that was the
best way sometimes fun with funny is
not exact its funny with an edge
i had actually forgotten this but
someone reminded me that once when a
judge said
what shall i call you
miss missus or mizzzzzz
and i said counselor would be fine
and there were titters in the courtroom and
the judge justice slink in his seat but that
you you had to figure out the
strategies
and as i said it was such an
distance from
respect
that we saw in yale was just minor
in comparison
i describe in the book it was like sitting
in in back of the guy with a hat
and at yale you tap the guy on the shoulder
and you see your hat i can’t see
the screen
and he’ll go oh i’m terribly sorry let me take
the hat off
court felt like you tap the guy and say
excuse me you know i can’t see
because of your hat
and he would go
i’m keeping it on uh… and it was a
whole different scene
so that is why it was much much more
difficult
you grew up on the lower
east side of manhattan introduce us to
your family a delightful family
well there were four of us and
my father uh… was born in this country
but could not speak english until the
second grade
uh… he spoke yiddish uh… neither
went to college my father i think did six
months in college and that was it my
mother never graduated high school
the prototype of the jewish family
is you know valuing education
they would have valued education if i’d been a boy
yes uh… valuing an education for girls
was another question my father
had a fight with my sister my older
sister who’s really paved the way for me
uh… the fight was that he wanted her
to take the commercial course
in high school so she wouldn’t be
taking up the place of a man
oh-boy and she told him she
gave him what for for that but
you know he was not about to
pay for me to go out of town to school
i went to barnard he wanted me
i wanted to go to to radcliffe or
he didn’t want me to do that because
a girl shouldn’t leave her
father’s home except with a husband
and so the book is filled with what i
described as moishisms and
also quotes from my mother
you know i mean
my mother when i got into yale law
school told me that i had priced myself
out of the male market and you know i
mean
again there was such a
distance between where i was
going and where they
were
uh… but i adored them
uh… and I write about um…
how did i become a lawyer from this
well
my father and i would have debates
every night turn on the news
whatever was on the news we would debate
for the rest of the night so it’s
it’s it’s that you know although he was
telling me women should do this or that
what he was communicating
through his
attention to me
was something completely different
and i think that that you you get this
dual message oh women should be you
know you should be having children and
getting married but there was
wow
there’s these ideas that i really am going
to engage with because we’re going to be
talking till two or three in the morning
and for my mother it was
let me finish dinner and get up and
she would say go do your homework
not help me clean
so i would again i was getting a
very different message from her
you know i was speaking with somebody
about your book just this week and they
said the passages with your parents were
their favorite parts of the book so I
share that with you I
also think that
uh…
it made a difference in my lawyering
because i had this
audience at home that i had to persuade
a very conservative audience
and an audience that i loved and
what I
described is that you learn how to
fight and love
you learned how to you know respect and
struggle with someone
and to some degree that was the template
up what i was doing in court i’d go
before judge people
used to think that the judge in this saxe
case and i were having a
a father daughter relationship not
unlike my father you know he’d be
angry at what i was doing
disagreeing with me but engaged
you know and and he’d like the
engagement particularly so
there’s a wonderful story I tell that my father
when i got the saxe case i called him
him up because
i was concerned that the press might
embarrass him
I don’t know what i would’ve done if he’d
said no that he didn’t think i should do
it because i was going to do any how
but i called him up and he um
and he said nance
i want you to take the case
i want to work your heart out
i want you to win
i want her to be
exonerated
then i want her to cross the street and be
hit by a car
it was
in a nutshell
that says it all does’t it
what is significant about your wearing of red
well
every trial lawyer has
uh… you know these kinds of
practices something you know you won
when you were wearing red and so therefor
you wear it all the time that was a
little bit of that was a little bit of
that i was wearing red in the sax case
part of it also was
very soon after practicing I used
to go into court with mini skirts and
pretty soon you realize that
that really wasn’t cool
um… but the courtrooms were heated for
men
so i would go in some you know frufru
dress and
uh… i’d be freezing so i started
to get suits but my
the way i translated mens suits was that
they would be red
so i’d be wearing suits but they would
be
my kind of suits
and that’s how it happened and then
after that i just you know
just my favorite color
it’s also by the way a very fast way to
shop
you go into a store
you don’t have to spend very much time
you just pull off all the red
tell us how you build your practice a
young woman in the seventies trying to
build a practice you take abortion cases
tell us a little bit about that
well what happened after the saxe case
before the sax case i was a total unknown
and every time i walked into
uh… i ran into a male lawyer in town
literally people would say
hey honey your in over your
head and literally with that voice I
wrote down all the people who said that
to me
but but when it was over
my phone rang off the hook
and all of a sudden i had the
opportunity to choose
to choose which is really unusual for
what a thirty-year-old lawyer
so i chose
the cases that i thought i
could make a difference in much like
that saxe case
at that time roe v wade had just been
decided in nineteen seventy-two and there was a
uh… really uh… torrent of attacks on
it not unlike today
actually
uh… a public hospital that refused to do
abortions not providing abortions to
prisoners
and then the usual the medicaid
stopping medicaid funding of abortion
and it was they were all
emergencies
and they were and they all engaged me i
i can say without hesitation that as far
as i was concerned here i was a
thirty-year-old
lawyer uh… dating
not wanting to
have children yet not even clear i
wanted to have children ever but
certainly not yet
and uh… uh… roe v_ wade and the
right to choose was me
i wanted to be the equivalent be like my male
colleagues
be able to date and be able to you know
function in the world
uh…
and the notion that that wouldn’t be
available to me was went to my
core i mean it was not
abortion was not just uh…
you know an interesting issue it went to
the core of being able to choose all of
life’s roles and
i was
making those choices so
i’ve volunteered for the
a_c_l_u_ to to do abortion cases
and then i would do i would actually do
interesting cases theres a story in the book
about
how i was reading in the paper one day
about uh… a judge who sentenced to
gay woman
and said it in the sentencing
you don’t deserve to be in the
animal kingdom
and that was written up in the press and
i
went to visit her the next day
uh… an offered to represent her free
uh… because i thought that
you know uh… whatever she had done she
didn’t deserve to be treated that way
i went in and entered my appearance and
told the judge is was going to enter my
appearance which is the way you begin as a
lawyer and the judge refused
so I excuse me judge
i’m not asking for an appointment here
uh… and the judge says no no you can’t do
that
judge I’m
volunteering to take the case
and he refused
so i sued the judge
i don’t know where this all came from
but i good for you wow gumption
you know to some degree things that were happening were so
outrageous that i couldn’t believe
that reasonable people wouldn’t look at
this and say really this is idiotic
so i sued the the judge got into the case
represented her
uh… but
so i would sometimes take cases
not with not with any calculation
about marketing
I was doing this because i thought it was
fun and important to do it was the
right thing yeah
as it happened
because i was there were still so few
women
as it happened many of these cases got
me into the press
as I said it was not my calculation but
many of them did and then that
enabled me to make
additional choices
uh… somewhere along the line I had
to figure out how to make a living and
you know we did
i did criminal defense work
that enabled me to make
a living and i also did stockholders
securities cases plaintiff stockholders
cases which
funded my house i want to come back
and talk about those but tell us why
murder cases
well sax was a murder case
there were no women or very few women
doing them
they are the most complex
uh… most uh… got wrenching cases that
you can
bring
and
uh…
I liked doing both murder
cases doing both criminal and civil
cases
as i write in the book civil cases were
often times more complicated you know the
the law was more complicated
but the stakes were
extraordinary in the criminal cases and
and in murder in in particular so
once i had the breakthrough in the saxe
case
I knew
how to do this
uh… and
you know
the book
is called in defense of women and people
sometimes think that the book is about
representing women but actually in
defense of women was also the notion of
putting
women in places
that you didn’t anticipate that they
would be
and the criminal courts
and the felony courts and the murder
cases were that last bastion of
male
domination really
and i wanted to be there
i wanted to be there
i wanna talk now about some of the
gender discrimination
cases that you were involved in
we’ll start with chapter five of your
book
where you talk about psychiatry
malpractice and feminism
and
i am glad that you have addressed the
issue of psychiatrists
and really doctors generally who may
breach their code of ethics and get
sexually involved with their clients how
common do you think this might be well
when i was doing this which was in
the late seventies and early eighties it
was very common
and it was very common then because women
didn’t know that it was wrong
they knew that it was wrong but felt powerless
not that they didn’t know it was wrong
they knew it was wrong but felt powerless to address
it
because you know we were
in the case that i describe there its
a low status woman who’s
reporting to a psychiatrist
because she needs help
so she’s already being labeled in the
society as a person needing help
and he is a high-class high status older
male
psychiatrist so
these were not you you couldn’t envision
doing something about it
uh… because you’re such a low status
and
people reported that as time went on
it happened a great deal in psychiatry i
didn’t know about other areas but it
certainly happened
in psychiatry so then it was not
only the
case of the woman whose uh…
psychiatrist you know had sex with her
there’s also the woman
i represented who
the psychiatrist midway through the
therapy said okay the therapy is over
can we date
and then they began to date
now that was
absurd
because
you couldn’t shut off this dependency
relationship like that
there was another psychiatrist that i sued
who
uh… became a guru to this woman and
gave her tapes
and essentially made her even more
subordinate in the psychiatric
relationship
and another one
the most shocking one of all is a
guy who did rolfing which is a
particular kind of massage
and he persuaded her that she needed
vaginal rolfing
the profession was only just coming to
grips with with this
and suing was enormously helpful to get
them to come to grips with this tell us
a little bit about the eliz elizabeth
levy case well
the abortion uh… debate
shifted after
my husband and i won this major case in
massachusetts which is
mow v hanley its called which is
uh… uh…
uh… established the right to choose
abortion in massachusetts under the
state
constitution
so to some degree the right was
protected
uh… in the ways we had been
dealing with the state had to
pay for it they couldn’t be criminalized
then all of a a sudden uh… levi and another
case pellegrini were cases of women
who were pregnant
who wound up he levi’s case
supposedly getting drunk hitting a
tree she’s eight months pregnant the
fetus dies
and she’s being prosecuted for the death
of the fetus
the other case is a woman in which
cocaine is found in her body
no one ever said these were good
situations or that this was the way one
ought to be which ones
fetus with one’s child it was just of
course it wasn’t great
but the problem was that if you
prosecuted
her levi and pelligrini
for the death of the fetus
you were now
creating women work being put
against their own
the their own body and all and
criminally prosecuted for
what was going for what they had done or
hadn’t done to
the fetus within them
what was frightening about that is that
it opened the door
to regulation of pregnant women it opened
the door to oh
you shouldn’t have sex in the third
trimester and oh
because if you do it will be criminal
and it opened the door to
uh… in fact there had been a woman who’d been
forced to have a c-section in california
so it opened the door to a
regulation of a woman’s body
and to me
that’s what it had always been about
in other words the genesis of sex discrimination
had always derived from
women insofar as they were mothers or could
be mothers
that’s where the core was
that the state believed it had a right
to intervene to keep us in that role and
in these situations it was the state
intervening
uh… for the purposes of saving the
fetus from the mother
uh… so i represented
elizabeth levy and did an amicus case in
the other case
saying again this was nota good
thing be no one was saying this was a good
thing but that criminal law
was not the way
uh… to address this and the principles
that were
coming out of these cases were
tremendously dangerous
there was also by the way a whole other
public health issue
which is
these women will not come forward for help
if they’re going to wind up in jail
so it may be it made no sense and that
i started to
do just before
i mean in the in the mid eighties
and she and she ultimately the levy
case
what was shocking as you know the
the district attorney’s office was
coming in to save the fetus well what
had happened was
when she got to the hospital the fetus
was alive
and was well it was believed
but because they smelled liquor on her
breath
they ignored her
the fetus died not because of her
directly but because of the hospital
so the case was dropped
and pellegrini wound up with the case
being dismissed as well
but it was you know it’s a complicated
issue it’s just
this is another issue that i will write
about
criminal law is not the way
uh… we should address these kinds of
very complicated social issues it’s like
it’s like using nuclear war
to deal with uh… . you know a
backyard battle
and it’s not the way we oughtta do it
so
thats levy
chapter eight of your book fighting city
hall tell us about john mcgrath
and so forth
well uh…
you know by
i don’t know I guess by the eighties
the mid eighties
I’d gotten pretty good at this
and uh… uh…
mcgrath was uh…
actually you see it in evidence books now
there’s that
picture of the brinks guard on the gurney
uh… identifying john mcgrath
who had been missing an eye
that was so you know you couldn’t have had a
better identification arguably right i mean he’s
missing and i and the brinks guard said
he’s the guy who robbed me
but this was a
this was an issue of craft uh… we
investigated when the robbery took place
the investigation we cross-examined the
police officers who all insisted
that it was bright light
at the time of that they could see
what was going and the brinks guard
could see
who had robbed him
other officers had conceded
that it was dusk
so when mcgrath was found a couple of
blocks away they said it was dusk
so there was something about
the robbery had taken place at one time
and his apprehension had taken place at
another time
unless they were in different time zones
they got the wrong guy
and then my investigator
who was susan saxes’ mother
she found
that there had been
there was one car that had left the bank
the brinks side of the
brinks robbery
and wound up being been caught in the
crossfire of the
shooting
and a second card which is where
mcgrath was found
a second car they would not and she
found
two separate cars
the one that had been caught in the
crossfire with a bullet in it and
then the one that mcgrath had been found
in and so he was
he was acquitted
and that had just happened it was
a big acquittal
and then.. when ted anzalone was
indicted
for extortion
the question of who should
be his lawyer
hardly silverglade and i he was my
partner represented him at the beginning
then there was a moment when he was
indicted and
a group of male lawyers got together
to figure out
who should represent him going forward
and we weren’t on the list
because at that point no matter how
much i had won
and how
how extraordinary the victories were
because i took
hard cases
i was still not in the mix
you were still a woman i was still a woman
and so
ted anzalone said to his enormous credit said
i want her I want them to represent
me in any event
and then the funny story of that is the
first day of that trial harvey sliverglade
my male partner is sitting next to me
i’m doing everything
he gives the news that night
had his face and my words and
i went up to them the next day because
i
have a big mouth and i said
what do you think i am harvey silverglade
in drag i mean this is idiotic
but
it was again this skepticism about
who you are that lasted even
in to the eighties and he was
acquitted two i only write in the book
about people who were acquitted of course
my book I can do whatever i want
you write in the book that you were deeply
skeptical
of love and work and lawyering and
motherhood and children but
you become pregnant at thirty nine so
tell us a little bit about your life as
a mother a wife and a lawyer
uh…
I uh you know I was not
i loved the work I loved the work
um…
and i was pretty good at it
and i did not
imagine that one could combine work
and family
and a marriage at the same time
my parents loved one another
enormously
and they were fabulous parents but she
didn’t work
and my father actually didn’t want her to
work
they were not a lot of models
uh… of people
there were models of women who had
careers
but not models of women who had
passionate careers
and I just didn’t think it was
possible to combine it and i was having
a god time
i was dating
you know but i just couldn’t envision
this could happen
it was bound to happen
that the person i was doing
the a_c_l_u_ work with
would be someone i would fall in love
with it was bound to happen because john
reinstein and i were working together
all the time
and he was someone who
was like no one i had ever met before
he um we’d work on cases together and
we’d walk into court and he’d say nancy
this is a woman’s issue you
should do the arguing
excuse me i should do the arguing
so i would do the arguing and then we’d go
out to face the cameras afterwards and
he would say
you you know i should not be
upfront on this you should be
upfront
of course he’s never been able to
whenever they’re cameras around he can’t
get a word in edgewise now going forward but
he may have reconsidered that
but i’d never met anyone like him
and so that the issue of the
uh… uh…
combining a family and a career
and not just any career but this career
was some thing he greatly
he greatly respected it was something he
greatly cared about so that made all the
difference in the world and then
you know in my late thirties and
biological clock was ringing off the
hook
i love to say that when i got pregnant
with steven
uh… you know menopause and
birth were neck-and-neck uh… how
but the
advantage in having children at that age
was first
i was unequivocal
i talk about getting steven
miranda warnings in the book
he was like you know that bit
and you go
ok sweetie
there’s good news and bad news about
having me for a mother
the good news is
I’m going to love you more than you ever can imagine
the bad news is i work
i work i love the work and we’ll have to
figure this out so
i mean and that that was
uh… i mean i had to figure it out
because i loved i was not about
to stop what i was
what i was doing and
i think that they
all there are three children now john had a
daughter
uh… who we raised as well part of the
time and
steven and peter and we
you know they and we all figured
out a way of
uh… letting them know how much we love
them and
trading off when you had to trade off if
i had a trial
he would be he’s a great cook he would
cook for them if it was the reverse you
know i would do it and
and the kids and then the kids once once
the technology came in and the kids could call
me anywhere
uh…
you know i’d get
i have a great texting relationship with
all three of them so
you know it is wherever you are how are
you
and there’s a wonderful story about when was i
was in china and uh…
uh… peter
uh… called me from china to
find out where his soccer shoes were
and i knew
i knew
so we had figured out a way of
mothering which was not my mother’s way
but was comfortable for us and and you
know i think it worked i think it’s a
question of how much you want it
yes you know how much you want it and
what your
uh… what your situation allows and
i like to tell young women that it’s
still shouldn’t be private negotiation
as a society we should support this it
shouldn’t be the happenstance of who i
happened to marry
and when i happen to have children
society should support women making
these choices i was just very lucky that
i could do this my favorite passage in
the book
i’m going to ask you to read you say that you
become your mother so if i may ask you
if you would read a paragraph from the
book
sure it goes that was then this was now
now i had that family sarah stephen
peter
rachel one dog then two a cat a bird two
fish named bush and quayle by steven
and in the twilight of the day
rattling around our house in brookline
making brisket of beef or cookies for
the recipes i had salvaged after sadie’s
death
reciting her words to my babies
i was my mother plain and simple
i could not be home in the afternoon as
she had been to cheer every grade
console every disappointment
she never taught me to cook or babysit
but she taught me how to love
and loving these children with abandon
was her greatest legacy
a wonderful wonderful passage
tell us about
the woman that you represented who was
accused of murdering her her husband and
then the battered women’s defense
lisa grimshaw called me when uh…
after
steven was born and i turned her down
she was in jail
uh… awaiting trial
and then she called me after
when i was pregnant with peter
and i turned her down
and she waited
here was the story
she uh…
she had been beaten by her husband by
boyfriends before her by her father
and she had left this particular
husband but
unlike usual the usual battered women
you know where women has has a hard time
leaving
she actually had left
but he kept on coming back and he kept
on
appearing and he would break in the window
through the window and he would break
down the door
so she never felt safe anywhere
they had a son together
and she had to interact with him and on
the evening of the murder
she went to pick up her son
and there was a fight over the son and
she
thought that he had gotten her keys
she grabbed her son and ran back to the
apartment
and she spent the evening
waiting for him to break in as he had
done countless times before
and
instead by a couple of hours
and at what she’s literally
trembling waiting for him to come in
a man that she’d been dating
not a very nice man but a man that she’d been
dating
comes in with a friend of his and she
tells him the story and he says
we’ll just do it
it was not at all clear what it meant
and they went to pick up the husband
and he was beaten to death by these
other guys
while she was there
it was a difficult battered women’s
syndrome
claim battered women’s syndrome had
never been
introduced in massachusetts at all
at all before then
and it was a claim that
for women who are beaten
who uh… expect violence at every turn
self defense
meant something different
then uh… uh…
something different then it did in the
usual case
it other words in the usual case self
defense is usually defined as male
in male terms
which is are you facing threat of
bodily injury have you used
all resources to avoid it
and usually uh…a man comes to that kind
of situation very different from a woman
a man would regard
a threat of imminent bodily injury very
different
he would also have different sense of
what he can do to escape
than a woman would
so battered woman syndrome was one way of
suggesting was a syndrome that women
much like
returning soldiers from vietnam
would have
where they would have
a different view of what the danger was
and what the alternatives were
based on what they had been through
and by that point in other parts of the
it was an effort to use this defense
yes to explain why they did
what they did
uh… and i waned to use it in in lisa
grimshaw’s case there was a difficulty
it was not easy because there had been a
period of time between the last
beating and the time of the murder
but it seems to me that that was for the
jury to decide let the jury hear what
her
her makeup was let them
understand what she had gone through
and then they can decide whether it was
first degree murder second-degree murder
manslaughter or an acquittal
it was for them to decide and luckily
that judge let me
uh… uh… use that defense
uh…
it was uh…
it was a stunning
defense because the
prosecutor in
fact challenged whether she had been
beaten at all
which was a very big mistake
so we were able to show to the jury
uh… describe to the jury
getting out of her car with a
friend of hers after they had separated
and him walking up to her and
punching her in the face
as if he was it was something he could do
with impunity
he could do that
or the story of him breaking through a
window
and you know punching her and she winds up
losing her teeth
uh… we had
doctors’ records we had
uh… witnesses
and we had an expert who talked about
what’s the impact
of this kind of life
on your perceptions
um…
and uh… the we went through that
the result was a manslaughter
conviction not first-degree murder which
i regard it is a victory
but then the judge gave her the maximum
which was
outrageous
uh… uh… no-one the man who
kills his wife after you
he finds out that she
has been sleeping with someone else
didn’t get twenty years
uh… you know somehow it was clear
that the values that i’d been
struggling against all my life were now
come into play
in this courtroom
he gave a twenty-year she ultimately
gets out within less than that because
um…
there’d been a movement at this point at
framingham
there were numbers of women who were in
because of
killing their abusive
husbands or lovers
and she essentially a little bit more
detailed then that got out
got really early parole as a result of that
uh… so that’s the
lisa grimshaw story but by that
point I
you know i write about representing her
while i had now two children at home
doing the closing argument looking over
and seeing i had baby vomit on my
shoulder and you know you just
learn to get on through and then also my
I
could relate to the women that i was
talking to in a way that i actually
hadn’t been able to before you know they
were
he neighbors i could talk to her neighbors
while they were their kids are rolling
all over the place although i am
aching for my guys
at home so it was
i had changed
my skills had changed
and this felt
like the right thing to do even though i
had these kids at home
tell us about the young man you
represent who
is accused of
of rape
and
tell me why you
view rape as such a different type of a
crime
when i
won the sax case essentially or essentially won the saxe
case
all of a sudden
my phone rang off the hook and
people who were calling me in criminal
cases for the most part
were
men accused of rape
and this was now in nineteen seventy
and it occurred to me that this was they
were not
asking me to represent them because i
was the best lawyer in boston
they were asked me to represent me them
because i was a woman
and they wanted they wanted my
symbolism
and not just my skills
and what i felt was my symbolism my
essence
is mine
and i was gonna use then in the cases
that i cared about
i didn’t want to use it in every case i
wanted to align it with the cases that
i cared about
What i say is that if these guys couldn’t have
gotten a lawyer anywhere in the galaxy
then ethically i would’ve had to
represent them but
that really wasn’t the case there were
plenty of lawyers out there
then that when i had
uh… two baby boys and a daughter
the son of
uh…
the son of a friend of
a friend of mine
needed representation for having been
accused of raping
uh…a woman at college
uh…
the circumstances were
very troubling
uh… from the point of view of
him.. he was a virgin this
was his first sexual encounter
he’s very small he’s four eleven
um… the woman after this first sexual
encounter
uh… invited him to her
parents house
I mean behavior not just
incon not just a little bit
inconsistent with having been raped but totally
inconsistent of having been raped
and didn’t surface the accusation until
some ten months afterwards and even then
the circumstances we’re not clear
i talked to him
with my little boys running around
and I thought it wasn’t import
i felt
he needed help to get out from under
this really horrible accusation of rape
he at that point had been suspended from
school because even a hint of it happening
I still didn’t represent him at the trial
my partner represented him at that the trial
he was convicted
i was appalled
they went jury wave and the judge
literally said
i have no choice but to convict you
and that could only be interpreted as he
didn’t want to take
the heat that would happened if he
didn’t
because the evidence was unbelievably
thin
so he was convicted and i did the appeal
and i did a feminist brief
i did a feminist brief saying we
shouldn’t trade
all these years when women were were
were questioned and women weren’t
believed
to do the opposite
where in fact women were always believed
i mean we had to come up with something
in between and innocence matters
i write in the book that after this
case i was picketed for having
represented the guy who was
accused of rape but
we won the appeal
uh…
in a decision actually that went further
than i it wanted it
to go uh…
uh…
so that to some degree it
underscored my
feelings about not wanting to take rape
cases ’cause once you get in a case you
have to do everything
and this decision went
further
in the direction of of
making it harder to bring these
charges then i wanted it to be
you worked though on rape shield laws
after that yes before that before that
i had i had
when you know when
rape was sort of the crime that
embodied
all the worst attitudes about women
if a woman had been sexually
active before she was raped
she would be cross-examined uh… as if
she had consented once you were no
longer a virgin you consented to everything
you know and
her sexual history would become fodder
for the cross-examination so i worked to
stop that to make sure that the only
thing that could be surfaced was things
having to do with what
she did with that defendant
and not necessarily every sexual
encounter she’d ever had in her life
her prior sexual history shouldn’t be
fodder
for cross-examination because it embodied
really a different world
my father would tell me
don’t dress like that
you know i wouldn’t tell
my daughter that it was a different
world and the mores were different
and it no longer meant that once you had
sex
you were consenting to every sexual
encounter there after
the mores had changed the court had to
change
and the court had to change to be able
to recognize
date-rape
and the only way to do this was too
change the rape shield was to enact
the rape shield laws
rape shield suggests that you are shielded
certain information is shielded from
the jury’s view
one chapter in your book sexual
harassment pays sexual discrimination
does not
tell us about that truly horrific
sexual harassment
claims against the national brokerage
firm and your representation
i think i was in the middle of a murder
trial I was always in the middle of a murder trial
i was doing murder and discrimination at the same
time
and um…
a woman came to me
who had a case against merrill lynch
and she described that when she was
initially a young broker
merrill lynch was all male
and you would uh… there would be
parties when uh… a broker would
it was his birthday and the parties would have cakes
in the shape of penises or there would be
a stripper who would come out of the
cake
she was a tough lady
and she would say all right
i’m going to take this she shouldn’t
have to take it but i’m gonna take it as
long as it didn’t matter
to my ultimate the money i was making if
it didn’t matter in terms of money i
would take
and she took it
and she took it
and then she began to realize that in fact
the same attitudes that
privileged them
put their finger on the scale in terms
of her money
uh… she you know private there would be
parties
at uh… you know the bruins or the
celtics
she wouldn’t be invited
male brokers could invite there
there uh
you know their clients there would be
uh… offerings that were offered
to the men but not to the women
when brokers left
there book it was called their
accounts would be distributed
and she would not get as much as any and all
of a sudden she realized that it really was
affecting the bottom line so she sued
it was not an easy case because it was a
case about lost opportunities
you can’t translate that so
easily into dollars
so we told a narrative
it was narrative that i was familiar with
we told the judge
a story starting with
penis cakes and strippers
and ending up with
this uh… difference in her pay
and that she felt compelled to leave
when she realized
that uh… that these differences
have been going on
and she left and the judge
didn’t award us damages but awarded a
quarter of a million in
punitive damages
and as i write in the book i mean i
that that continues to happen
particularly in professions in which
uh…
which are sort of like cowboy
professions where
there is not a unified structure where
essentially
you make what you killed
and that’s brokerage even doctors are like
that and we see sexual harassment in those
situations as well yes we do and its
it’s wonderful that you expose in your
book the link between harassment and
discrimination
i mean the ultimate goal is
discrimination they just used the
harassment to discriminate its something
that has not been addressed by by
society at all well i think it it when
you think about it
it’s only
maybe a generation and a half ago
when women were formally excluded
from professions and jobs formally
excluded
so now the enterprise is to
try to figure out the ways in which
those obstacles remain 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
but if you’re gonna keep on
demeaning me
i’m not gonna feel welcome here
i’m not gonna feel comfortable here and
i’m not gonna stay
and sexual when 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
began to change
now tell us
you brought up education about your
suits against academic institutions of
which you’re going to join
its a little ironic
well the
someone once said that you know most people
can be introduced in terms of
the schools that they attended
but i perhaps should be introduced in
terms of the schools that i sued
along the
lines of these cases were
me and other words i was oftentimes
representing women
who were in situations that i
fully understood uh… and uh…
discrimination cases were like that
discrimination cases at academic
institutions were like that literally
the first case i brought was against tufts
university and this was about a year
after saxe
so i went from murder to discrimination
which always seemed easy to me
but these were very complicated cases
they took a lot of resources
uh…
women sometimes don’t bring these cases
because they’re too expensive
and if you’re
like me and willing to work for a song
suddenly you can do this
but i love the challenge on it
uh… universities
have the illusion of rationality
committees and paper and evaluations
and at the end of the day they may mask
the same kind of attitudes that
you see on the assembly line
you know t
one i quote in a book was a woman
who was going for a named chair
and one of the members of the committee
literally said you know I just
can’t see her in that position
i can’t see it
why can’t you see her in that position because
you envision a man that’s right
so
I sued
most of the
major institutions in the northeast not
yale because i was going there but
certainly harvard and than one of the last
cases i took
was representing claire darden
who sued harvard law school
for gender discrimination so there’s a
certain irony
about this
it is so crucial
that women are
on tenure track positions at academic
institutions
well it its
uh…
it when you talk about role model
it’s not an illusion
you feel confident if you’re a young woman who
can envision yourself
in these roles
and if you don’t have women in these
roles then you can’t expect young women
to
they’ll come to the school perhaps but
they won’t know where to go
after that so that so i think it’s
terribly
it’s really terribly important
many of the school
changed in terms of tenure
although the numbers are still not
fabulous
september twenty eleven concludes nancy
gertners time on the back
he’s been on the bench for seventeen
years but she felt that it was time to
do more things with her life before she
retires
we wish her great success in all that
he does
so until next time i want you to stand
up for those who can not advocate for
themselves believe in what you’re
doing and most of all you be well
you know i want when i finally got
sworn in
i wanted people to understand that
i was not born with a silver spoon
in my mouth and that
um… there are there so there are lots
of different roads to judging and
we ought to think about about that
in those ways
so i told the story and my father had
died three days before kennedy had called me
before the president had called me and
my mother had died when i was thirty
so this is the story i told him that i was
going to tell this story
i’m now at faneuil hall and they’re
all these people around
and i say you know i want to let you
know the distance that i’ve traveled
so its nineteen seventy one
and we’re in the kitchen of our small
apartment
we went from the lower east side
to flushing queens
uh… very small apartment
and i’m having a fight with my mother
the kind of fight
that only mothers and daughters can have
every
woman i ever tell this story knows these
kind of fights you only have with your mother
you say things to your mother that you would
never say to another human being in
this galaxy so we’re just going on and on
what was the fight about
sadie wanted me to take the triboro bridge
toll takers test
just in case you never know
i had graduated yale law school i was on
my way to clerk but you never know so i tell
the story and everyone laughs in
faneuil hall
and then when its
over and the laughters subsided i look at the
ceiling
and i say excuse me I have to talk to my
mother ma a government job