When Ray Kelly was sworn in as police commissioner the first time on Nov. 10, 1992, his new job was darkened by the horror of Crown Heights. Barely two weeks before, a Brooklyn jury had handed down a verdict acquitting Lemrick Nelson, a young black man, of the murder of Yankel Rosenbaum, a young Hasidic student. The jury concluded that Nelson had been framed by a racist police force.
The terrible story still shocks. A car in an unofficial motorcade to a rabbi's gravesite ran a red light on Aug. 19, 1999, went out of control, and struck two black children, killing one and seriously injuring the other. A black mob formed and rampaged through the streets, assaulting people, burning cars, and looting stores. During the riot, a visiting Hasidic scholar, Yankel Rosenbaum, was pulled from his car, beaten, and stabbed. He identified his attacker, and died at the hospital.
Despite the victim's identification and his own confession, Lemrick Nelson was acquitted of murder by a jury of six blacks, four Latinos, and two whites in a New York State Supreme Court trial in Brooklyn. (The jury held no Jews.) Nelson's lawyer had hammered away at small discrepancies in the stories of the nine cops, eight of whom were white. He put the justice system on trial, and the jury went with his theory that a racist police force had framed the nice-looking young man. The identification was disregarded as prompted, and the confession as coerced--the defense theory.
At the urging of New York officials, including Brooklyn prosecutor Charles Hynes, the federal government brought charges of civil rights violations against Nelson and another man, Charles Price, who was accused of inciting the mob to violence. The federal trial after the state acquittal raised some hackles about double jeopardy, but was not controversial for long. Under the Reconstruction-era Civil Rights Act of 1870, the federal government can on its own try cases in which a federal interest--such as a civil rights violation--has not been vindicated in court due to a nonexistent, cursory, or bungled state prosecution.
In 1996 both Nelson and Price were convicted by a racially mixed jury in federal court of violating Rosenbaum's civil rights by singling him out for his religion.
CROWN HEIGHTS ONCE AGAIN
On Jan. 7, 2002, a week after Ray Kelly was sworn in as police commissioner a second time, the U.S. Court of Appeals (2nd Circuit) vacated the Lemrick and Price convictions. At first glance, this looks like one of those nightmare American legal situations in which a procedural error has undermined a just verdict. Two violent men, convicted of heinous crimes, may be released from prison because a judge made a mistake during trial.
Pretty much everyone seems to agree that the defendants were guilty of the crimes charged, and that the verdict was substantively correct. The Court of Appeals itself said "The evidence was sufficient" and "overwhelming" that Nelson stabbed Rosenbaum, and that Price "transformed" the mob "into an explosive mass" to hunt down Jewish victims. (Price was seen on videotape yelling, "Let's get the Jews" and "Eye for an eye. No justice, no peace.")
And everyone also agrees that a serious procedural error occurred during the trial. The error was that federal Judge David Trager "jurymandered," that is that he deliberately and systematically empanelled a jury according to his standards of the proper racial and religious composition. He was straightforward about his goals. "I have an agenda here," he said, "which I have made clear from the very beginning, to end up with a jury that represents the community [and] that will have moral validity." He went so far as to warn that if there were a hung jury, "that itself will be a statement to both sides about both what is the process and [what] the problems are with our society."
But in the words of the Court of Appeals, Judge Trager manipulated jury selection "to prevent the final jury from containing too many African Americans and too few Jews." He did this for the best of reasons--to ensure, in his words, "a moral jury that renders a verdict that has moral integrity." This high motive is consistent with the Constitution, whose framers saw the jury as both a protector of individual rights and a means of ensuring communal support for judicial procedures. The jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings.
So Judge Trager was not wrong in seeking a moral jury that would render a moral verdict and satisfy community standards. Where he went wrong was in choosing jurors by race and religion, including a Jewish juror who warned repeatedly that he wasn't sure he could be fair. This, said the Court of Appeals, was evidence of "actual bias," that simply could not be permitted to stand.
What is to be done? Two men were convicted by a jury selected for race and religion, improper under constitutional principles. As remedy, the Court of Appeals has remanded the case to the district court for a new trial before a "properly selected, impartial jury." Lawyers for Nelson and Price are now preparing legal arguments that their clients should be released from prison while awaiting new trial.
But Justice Charles Straubb, who dissented, has a better idea: affirm the convictions both because they were correct and because the defendants and their lawyers repeatedly acquiesced in the composition of the jury, trading black jurors for Jewish jurors. "The Constitution does not require," says Justice Straubb, "that we reward defendants for constitutional violations in which they themselves participated."
He points out that the courts do not permit defendants to challenge evidence which they themselves introduced, or challenge the admissibility of hearsay statements of a non-appearing witness when the defendants themselves prevented the witness from appearing. These defendants, argues Straubb, do not deserve a second trial given their own conduct.
What will the Justice Department do? It can appeal to the U.S. Supreme Court. It can prepare for a new trial, 11 years later. The practical problems of witnesses and evidence would be enormous.
Or it can return to the Court of Appeals, asking that all 12 justices hear the case, and arguing that Justice Straubb's dissent was right. The prosecutors will be reluctant to do this because it is bound to annoy the court. Though seldom taken, this route is the right one.
Meanwhile, Commissioner Kelly faces the same problem in 2002 he faced ten years ago: building a racially and ethnically diverse police force to serve and protect his racially diverse city.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
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