Means, Ends, and Murder

The murder itself could hardly be more famous. One evening in August 1991, a Jewish man lost control of the station wagon he was driving through Brooklyn’s Crown Heights neighborhood and wound up injuring two black children, one of whom later died. Around 11 o’clock that night, after a crowd of nearly 700 people had gathered on the scene, a man named Charles Price delivered an impromptu speech. “Let’s get the Jews,” he proposed. “An eye for an eye.” A riot then broke out: Cars were burned and a number of Jewish passersby were beaten up. Specifically, a man named Yankel Rosenbaum was set upon amid cries of “Kill the Jew!”

Rosenbaum was subjected to a prolonged, brutal assault before police arrived, whereupon his attackers attempted to flee. But Rosenbaum grabbed hold of one of them by the shirt and wouldn’t let go. This was Lemrick Nelson, who freed himself from Rosenbaum’s grasp by stabbing him in the chest, only to be arrested–still carrying the knife–moments later. Before he was taken to the hospital, where he would die after botched emergency treatment, Rosenbaum identified Nelson as his assailant. And DNA tests subsequently confirmed that it had been Rosenbaum’s blood on Nelson’s weapon.

In October 1992, however, despite overwhelming, un-contradicted evidence of their guilt–Price’s speech had been videotaped, for example–Nelson and Price were acquitted of murder and incitement charges by a mostly black and Hispanic Brooklyn jury. Janet Reno’s Justice Department then came under intense public pressure to set things right. And two years later, the Department did authorize federal indictments against Nelson and Price for violating Rosenbaum’s civil rights. This time, on these charges, a unanimous jury supervised by U.S. District Court Judge David Trager convicted both defendants. Price was sentenced to 235 months in prison. Nelson got 262.

But early last month a three-judge panel of the U.S. Second Circuit Court of Appeals reversed both men’s convictions, citing constitutional violations in Judge Trager’s jury selection procedures. The Second Circuit judges ordered the government to retry Nelson and Price. And the government is now trying to decide what move to make next.

None of its options are attractive.

Yankel Rosenbaum’s family, along with a fair number of prominent New York politicians, want John Ashcroft’s prosecutors to appeal last month’s panel ruling to the full Second Circuit or directly to the Supreme Court. The pressure will be difficult to ignore: Price did give that speech, after all, and Nelson did stab somebody to death. Trouble is, who’s responsible for Rosenbaum’s death isn’t an open legal issue at the moment; should Justice resolve to proceed with an appeal, it will be arguing only that Judge Trager’s jury was not so infected with bias as to constitute a constitutional violation requiring retrial. And that argument–though it has a certain commonsense fairness on its side–is nevertheless very likely to fail.

“I have an agenda here,” Judge David Trager announced during jury selection at the original Price-Nelson federal trial. Trager wanted “to end up with a jury that represents the community,” a jury that would consequently “have moral validity.” Which was Trager’s fancy, roundabout way of saying he intended to seat equal numbers of blacks and Jews. Except that there were very few Jews in the available pool–and too few of them left, for Trager’s taste, at the end of voir dire. So the judge openly expressed his hope that someone might drop out of the empanelled jury. And when a black juror got sick and had to go home, Trager had his chance.

First the judge arbitrarily shifted a white juror off the panel, too, leaving a pair of vacancies. Then he selected one black and one Jewish juror to fill them. Both these jurors were chosen out of order from the list of alternates, in violation of federal criminal-procedure rules. Moreover, the Jewish juror, “Juror 108,” had already been the subject of significant dispute. Under questioning by defense counsel, he’d admitted being “disappointed” with Nelson’s state-court acquittal, and he’d answered “I don’t know” when asked whether he could manage to assess the defendants equitably. Price and Nelson’s lawyers had wanted Juror 108 bounced from the pool. Trager had rejected their arguments. And now Trager was insisting that 108 be seated on the final jury, though he confessed “I’m not sure I can get away with that.” At this point, perhaps because the basic racial makeup of the jury hadn’t been affected by the judge’s manipulations, Price and Nelson’s lawyers acquiesced.

Or perhaps it was because Trager’s behavior struck them as an excellent basis for subsequent appeal should their clients be convicted. Sure enough, that was the appeal before the Second Circuit panel last month. One of the panel’s judges, Chester Straub, was plainly offended by the cynicism of it all. That defense counsel had agreed to Trager’s scheme, Straub concluded, was an “absolutely exceptional fact”; the Constitution, he wrote, “does not require that we reward defendants for constitutional violations in which they themselves participated.” Straub thought the unique circumstances of the case made retrial unnecessary.

But he also thought Trager’s jury tampering had been “highly unusual and improper” behavior for which vacated convictions would ordinarily be the “sensible remedy.” It might even be advisable, Straub conceded, to promulgate a rule requiring vacatur for such behavior in the future.

Judge Straub’s Second Circuit colleagues were of the view that the future should be now. Writing for the court, Judge Guido Calabresi was merciless about David Trager’s “unacceptable” and “illegal” departure from regular federal jury-selection procedures. Trager had “abused [his] discretion” in a fashion that violates central protections of the Sixth Amendment and “even the most minimal standards of due process” under the Fifth Amendment. Calabresi was unpersuaded by the government’s argument that Price and Nelson had waived their initial objections to Juror 108 by later consenting to Trager’s wishes that he be seated. Assuming such a waiver were technically possible–something Calabresi rather doubted–defense counsel’s consent would remain invalid anyway, because it was obtained in exchange for a plainly unconstitutional “benefit”: the empanelment of a polluted jury.

On this score, Calabresi has logic, caselaw, and Supreme Court precedent on his side. The Justice Department cannot like its chances on appeal.

But Justice cannot be looking forward to a district court retrial, either. Nelson and Price were convicted in David Trager’s district court for violating section 245(b)(2)(B) of federal law’s Title 18. That provision makes criminal any act of “force or threat of force,” attempted or successful, that “injures, intimidates, or interferes with . . . any person because of his race, color, religion, or national origin and [emphasis added] because he is or has been . . . participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by any State or subdivision thereof.” All three judges in last month’s Second Circuit panel accepted the self-evident fact that, inspired by Charles Price’s threats, Lemrick Nelson did actually injure Yankel Rosenbaum “because” he was a Jew. Section 245(b)(2)(B) requires more, though. To sustain their convictions, it also requires a finding that Price and Nelson acted “because” Rosenbaum was making use of services provided by the City and State of New York–“because,” in other words, they intended to deter Jewish people from walking around in public.

In the first federal trial, Judge Trager wasn’t much troubled by this second requirement. Trager told his jurors they could “infer” that the defendants intended “all the natural and probable consequences” of their deeds. Judge Straub of the Second Circuit appears to have agreed with Trager. And, here at least, Judge Calabresi agreed with Trager, too: Nelson and Price “should have expected” their actions to have a deterrent effect on Jewish people’s future exercise of the right to navigate urban sidewalks.

Does it matter what Nelson and Price “should have expected,” though? In his majority opinion last month, Calabresi allowed as how Section 245(b)(2)(B) requires an “intent to interfere with the victim’s use of public facilities.” Calabresi further allowed as how Judge Trager’s district court trial had produced “no . . . direct evidence that the defendants . . . had an intent to prevent or dissuade [Rosenbaum’s] use of the city street.” Still, Calabresi thought it possible–after a multi-page disquisition on the distinction between “intent” and “specific motive”–to establish that Nelson and Price had acted “because” Rosenbaum was using a city street, which “qualifies as a ‘facility’ for purposes of the law.”

All of which was too much for Fred Parker, the third judge on last month’s panel. Parker, too, was appalled by Judge Trager’s jurymandering. But Parker found an even more basic reason to invalidate the Nelson and Price convictions: He didn’t think they were guilty of the crimes alleged. Charles Price started a riot. Lemrick Nelson killed a man. But it is “abundantly clear from the evidence that the motivating force for the actions taken was religion-based animus, pure and simple.” And “there is no evidence whatsoever from which a jury could conclude that the motivating force behind defendants actions was to prevent, deter, or even retaliate against the use of a public street” by Jews. Anything else would be “pure speculation.”

This is not an insubstantial complaint. How confident can the Justice Department be that a new judge, at retrial, will instruct his jury as loosely as David Trager did? And if he doesn’t, how likely is it, given the evidence, that prosecutors will be able to persuade a second jury of this: that Lemrick Nelson, while or before he was plunging in the knife, was thinking how best he might redirect Jewish pedestrian traffic away from President Street, Brooklyn? Isn’t it more than a little possible, instead, that a second jury will look at Lemrick Nelson and see a simple street thug who got away with plain old murder?

That, too, is a problem for John Ashcroft’s prosecutors. If Lemrick Nelson got away with plain old murder, he is necessarily innocent of the civil rights charges still pending against him. Unless, that is, Section 245(b)(2)(B) of Title 18 is a generalized bias-murder statute, which federal prosecutors can use any time they think a state court not guilty verdict has disserved the cause of justice. The Lemrick Nelson case has disserved the cause of justice. But the Constitution says you can’t be tried twice for the same crime. So what’s an honest and responsible attorney general to do?

David Tell is opinion editor of The Weekly Standard.