Abandoning Lemrick Nelson Jr.’s longtime insistence that he did not stab Yankel Rosenbaum during the Crown Heights riots, the defense team in his federal retrial this week insisted the murder was the act of a drunken, misguided youth, not a racial attack.
But prosecutors said they would prove Nelson was part of an angry but "cowardly gang" that preyed on Rosenbaum to "even the score" after a black child was accidentally killed by a chasidic driver.
The unusual defense strategy took the 12-year-old case in a strange, new direction in which guilt or innocence will depend not on whether Nelson killed Rosenbaum but whether he intended to violate his civil rights.
"This is not a homicide case, not a manslaughter case, and not an assault case," attorney Richard Jasper told the jury, before Judge Frederic Block at Brooklyn’s federal courthouse. "It is a civil rights case, and one of the critical issues will be why that attack took place."
Nelson was acquitted of murder charges in 1992 but indicted on federal civil rights charges five years later.
The federal statute that allowed the government to prosecute Nelson requires authorities to prove that the victim’s freedom to use a public accommodation was violated on the basis of race or religion.
In their appeal of Nelson’s 1997 conviction, his attorneys tried unsuccessfully to invalidate that statute. An appellate court did, however, order a retrial because it said the presiding judge chose jurors on the basis of race or religion.
The new jury consists of eight blacks, two Guyanese immigrants, two whites and no Jews. Defense lawyers used several of their allowed objections to keep Jews off the jury.
Prosecutors seemed buoyed, but not overly surprised, by Nelson’s defense strategy, which will save them the burden of presenting forensic experts and DNA evidence. Legal experts said the strategy was a risky gambit that may give the impression of desperation. (See accompanying story.)
Another factor that could aid the government’s case is the guilty plea by Nelson’s codefendant in the last trial, Charles Price.
Although his conviction for inciting the crowd that attacked Nelson also was overturned, Price accepted a plea agreement rather than face another trial.
Showing two videotapes of the accident scene on the night of the murder, the prosecutors sought to establish that Price whipped the crowd into a frenzy of anti-Semitism and that Nelson was present in that crowd.
"On Aug. 19, 1991, the system of law broke down in Crown Heights and for a few hours violence and lawlessness took over the streets," Assistant U.S. Attorney Lauren Resnick told the jury. "A gang of angry thugs took the law into their own hands … You will see that Lemrick Nelson was a member of that angry crowd."
Jasper depicted Nelson as a young man "straight out of Brooklyn, 20 days after his 16th birthday," who was not sophisticated enough to have a political agenda. He said Nelson had been drinking 40-ounce bottles of malt liquor all day on the day of the attack and was caught up in "the excitement" of the nascent riots when he joined the mob that attacked Rosenbaum.
Witnesses, Jasper said, would testify that Nelson consistently said he attacked Rosenbaum because he was drunk and never, in conversations with police or with friends, mentioned a racial motive.
"You will hear statements he made to experienced homicide detectives," said Jasper. "’I was high and got caught up with the excitement.’"
Although courts have ruled that voluntary drunkenness is not a defense for criminal behavior, prosecutors seemed concerned about how the impression that Nelson was not fully cognizant of his actions would impact on the jury.
In questioning two police officers on Tuesday, Resnick and her co-counsel, Christina Dugger, repeatedly asked if Nelson was responsive and able to walk unassisted, and if they detected any sign of alcohol use.
Both officers, former patrolmen who are now detectives, said there was no indication Nelson was drunk.
"He seemed fine," said Lt. Richard Sanossian. "Nothing out of the ordinary."
The repeated questioning led to an objection by Jasper that was upheld by the judge. In his cross-examination, Jasper asked Sanossian if it was possible that Nelson seemed able to walk only because police officers were assisting him.
"I don’t recall anyone holding him," said Sanossian.
Witnesses for the prosecution on Monday and Tuesday included a Jewish Crown Heights resident who saw the attack on Rosenbaum; a man who videotaped the angry crowd who gathered at the corner of President and Utica streets following the accident and an NBC cameraman who was at the scene and testified via satellite from Baghdad.
The scene in the courtroom was subdued, with a handful of relatives and supporters of Nelson mingled in the gallery with an equally small number of chasidim and other spectators, including a young yeshiva girl from Long Island who is writing a class paper on the Crown Heights saga. Media presence was heavy during the opening but the news vans, cameras and many of the reporters disappeared Tuesday.
Either verdict may not bring closure to the case, which has been a sore point in black-Jewish relations for more than a decade. Nelson is considered likely to again appeal a conviction. It would be more difficult, but not impossible, for the government to bring further action if he is acquitted.
But some Jewish leaders were gratified that whatever the outcome, Nelson’s involvement in the murder was no longer in question.
"After 12 years of accusing the police and prosecutors of fabricating evidence, Lemrick Nelson has finally, through his attorney, admitted to killing Yankel Rosenbaum," said Michael Miller, executive vice president of the Jewish Community Relations Council.
Miller said he was confident the evidence would prove Nelson "voluntarily joined the crowd shouting ‘Kill the Jews’ and stabbed Rosenbaum in exactly that spirit."