Shortly after midnight EST on March 2, Judge Nancy Gertner issued the following order in the case of accused peer-to-peer infringer Joel Tenenbaum:
Notice: It has come to the Court's attention that there was a factual error in the Court's notice of January 13, 2009. Twenty five years ago, five attorneys were subpoenaed in the litigation referred to in In re Grand Jury Matters, 593 F. Supp. 103 (D. N. H. 1984). While Mr. Nesson, counsel for defendant Tenenbaum, did not represent Judge Gertner in the district court proceedings, as was noted in the January 13, 2009 entry, he did represent all of the Massachusetts defendants, including the Court, and filed a consolidated brief filed on their behalf on appeal in In re Grand Jury Matters, 751 F. 2d 13 (1st Cir. 1984). New Hampshire lawyers were separately represented. Briefs supporting the defendants were also filed by the New Hampshire Bar Association, the National Association of Criminal Defense Lawyers, among other national and local organizations. The Court also wishes to point out that Judge Gertner had been a partner in the firm serving as local counsel to the plaintiffs, Dwyer & Collora (then known as Dwyer, Collora & Gertner). Daniel Cloherty, who joined the firm after Judge Gertner became a District Court judge, has entered an appearance on their behalf.(Gertner, Nancy)
First, kudos to Judge Gertner for confessing error. Federal judges are not known for admitting mistakes, and she deserves credit for doing so, and quickly.
But...second, Judge Gertner maintains, as she did in her original Jan. 13 order, that Harvard Law School Professor Charles Nesson, Joel Tenenbaum's counsel, did not represent her in District Court proceedings in the 1984 criminal case in which she was subpoenaed by a federal grand jury. I have no hard evidence that Nesson did represent her in District Court (and never said so). But if not Nesson, then who? As I pointed out last week, the District Court's opinion lists counsel for 4 of the 5 defense attorneys who received subpoenas -- but not for Gertner. Why not? I suspect it was a clerical error. Nesson is listed as counsel for attorneys John Wall and Albert Cullen in the District Court, and for Wall, Cullen and Gertner in the First Circuit. It's speculation on my part, but wouldn't it seem logical that if: 1) Nesson represented all 3 of Wall, Cullen and Gertner in the Court of Appeals; 2) Nesson clearly represented Wall and Cullen in the District Court; and 3) Gertner's counsel listing is inexplicibly missing from the District Court's opinion; then 4) one could reasonably conclude that Gertner was erroneously left off the list of Nesson's counsel in the District Court? Perhaps there is another explanation (Gertner had no counsel in the District Court? She had another attorney in the District Court -- who for some reason was left off the opinion's counsel listing -- and then switched to Nesson for the appeal?) but those seem less plausible than my speculation.
Lastly, Judge Gertner's order states, "It has come to the Court's attention that there was a factual error...." Well, how? Judge Gertner writes blog posts. Is she afraid to admit that she reads them?