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Gotham Gazette

The Place for New York Policy and politics

Citizens Union

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Internet resources for what you need to know about NYC Crime and Police
Five Favorite Sites For Beginners

The Topic
"Crime/Justice" refers to relationships among criminal activity, the police, the courts and community life.
The Context
The decline in the NYC crime rate may be the greatest story of the decade. But in the wake of the police torture of Abner Louima and the police shooting of Amadou Diallo, the practices of the New York Police Department have come under scrutiny. Accusations of racial bias, abuse of power and infringement on civil liberties abound. What is the balance between civil liberty and civil order? Who decides?
The Reporter
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.
The Archives
See past monthly updates for Crime and Justice.

by Julia Vitullo-Martin

Crown Heights

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.


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.

Five Sites For Beginners:

  • New York Police Department - Hoaky design but good substance, particularly the feature that allows you to check out your own neighborhood. The department has begun posting crime figures for each of the city's 76 police precincts on both its own and City Hall's official websites. The commissioner hopes to post precinct maps showing where crimes have recently been committed by the end of March. One drawback: the only official you can email is the commissioner. Still, that's better than nothing--if the commissioner reads and answers his email. Let us know what happens when you try.
  • Federal Bureau of Investigation, Unit for Crime Reports - The FBI's uniform crime reports are the nation's most useful tracking system for both violent crimes (murder and non-negligent manslaughter, forcible rape, robbery, and aggravated assault) and property crimes (burglary, larceny and theft, car theft, and arson.) In December, the FBI released the good news that the national Crime Index, composed of both violent and property crimes, had decreased by 0.3 percent during the first six months of 2000 when compared to figures from the first six months of 1999.
  • Vera Institute of Justice - Vera is a nonprofit organization, founded in 1961, that works collabortively with government officials to develop innovative approaches to problems and to improve the quality of urban life both here and abroad. It is currently working with both the New York City and New York State police departments to strengthen police accountability through civilian complaint review, community policing, and computerized management systems. A study called "Respectful and Effective Policing," which Vera released in March 1999, examined two Bronx police precincts where commanders, counter to trends in most of the city, had reduced civilian complaints about police conduct while still sharing the city's success in reducing crime.

Other Recommendations:

  • Mothers Against Drunk Driving - Long on policy positions and recommendations, short on data. If you want data, go immediately to the bottom of the home page and click on statistics, which will yield four drop-down windows: general statistics, fatalities, statistics by youth, statistics by race. Fairly cumbersome to get local and state data but can be done.
  • Families Against Mandatory Minimums - With the slogan "Let the punishment fit the crime," this national organization of citizens uses an effective combination of hard data and individual stories and photographs to argue for the abolition of state and federal mandatory sentencing laws. Its frequently updated "Latest News" section offers a concise, efficient way to learn about and track the issues of mandatory sentencing.
  • Community Justice Exchange - works to being together citizens and the criminal justice system to solve neighborhood problems. Their site is austere but well-organized. It provides information and asisstance to comunity justice planners across the country, and carries a useful section on Best Practices that includes project profiles, problem-solving strategies, and a recommended reading list. It works as a pretty good do-it-yourself course on effective community activism.

Visit the Topic Archives!

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Gotham Gazette is published by Citizens Union Foundation and is made possible by support from the Robert Sterling Clark Foundation, the John S. and James L. Knight Foundation, the Altman Foundation,the Fund for the City of New York and donors to Citizens Union Foundation. Please consider supporting Citizens Union Foundation's public education programs. Critical early support to Gotham Gazette was provided by the Charles H. Revson Foundation, Rockefeller Brothers Fund and the Alfred P. Sloan Foundation.

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