A panel of lawyers working with the family of Yankel Rosenbaum was to formally call on the government this week to seek a stricter sentence for his killer than conventional law allows for civil rights violations.
Rosenbaum’s brother, Norman, said he was working on a memorandum to the U.S. attorney for the Eastern District, Roslynn Mauskopf, detailing theories that might prevent the expected release of Lemrick Nelson Jr. from prison within a year.
"We’re looking at the legal avenues to enable the judge to sentence Nelson beyond the 10-year maximum under the statute," said Rosenbaum, an Australian barrister who is consulting with a team of American trial lawyers. "We believe there exist legal options for the judge to do this and will be pursuing each of these options vigorously."
Yankel Rosenbaum was fatally stabbed on Aug. 19, 1991, at the dawn of the Crown Heights riots. A federal jury on May 14 found Nelson guilty of violating Rosenbaum’s civil rights but not of causing the 29-year-old chasidic man’s death.
Judge Frederic Block is to sentence Nelson on June 30, and is widely believed to have only 10 years at his disposal for the lesser charge. Nelson has served almost as many years since his arrest, and has credit for good behavior, which could mean his release in a matter of months.
A spokesman for Mauskopf, Bill Muller, said she would have no comment until the sentencing.
One of the lawyers advising Rosenbaum is Nathan Lewin, an expert on constitutional matters, who believes the judge may sentence Nelson for attempted murder, which carries stricter penalties.
Under a recent U.S. Supreme Court decision, any fact that could be used to increase a sentence must be decided by a jury to have been proven beyond a reasonable doubt. Under one theory expected to be included in the memo to Mauskopf, a separate jury could be convened to determine if Nelson intended to kill Rosenbaum.
But some experienced lawyers consider such a scenario unlikely.
"It’s a long shot," said one lawyer familiar with the case who requested anonymity. "All these things are long shots, but we owe it to Yankel Rosenbaum to try."
One of Nelson’s lawyers, Peter Quijano, said he was confident that his client faces no more than a 10-year sentence.
"Since the jury found beyond a reasonable doubt that [Nelson’s] conduct did not result in death, the maximum is 10 years," said Quijano.
Nelson was acquitted of state murder charges in 1992 but brought up on federal civil rights charges two years later. He was convicted in 1997 and sentenced to 19 years.
The conviction was overturned on appeal, and Nelson was retried last month.
Unlike the 1997 trial, prosecutors in this case needed to obtain a separate determination from the jury about whether Nelson’s actions caused Rosenbaum’s death because of the landmark 2000 decision by the U.S. Supreme Court in Apprendi vs. New Jersey.
The high court decision regarded the case of a white man, Charles Apprendi, who admitted firing shots into the home of a black family.
After Apprendi pleaded guilty, prosecutors filed a motion to enhance the sentence, evoking the state’s hate crimes law. Apprendi received a sentence of 12 years rather than five to 10 years on a firearms count because of the bias aspect, which was decided by the sentencing judge based on a confession (later retracted) that Apprendi committed his crime because he did not want blacks in his neighborhood.
Two state courts upheld the conviction, but the Supreme Court agreed to hear the case and ruled in June 2000 that only a suspect’s prior record may be taken into account by a judge to increase a sentence. All other facts must be decided by juries beyond a reasonable doubt.
In the Nelson case, the question of whether the prosecution had established beyond a reasonable doubt that the defendant caused Rosenbaum’s death seems to have provided the basis for a compromise verdict after a week of deadlocked deliberations. Jurors who wanted to convict were satisfied, while those who wanted to acquit knew he would soon be out of jail.
The jury forewoman later told The New York Times that she and other jurors considered the fact that Kings County Hospital has been accused of botching Rosenbaum’s treatment, although Block ruled that information irrelevant to the jury’s consideration.
Transcripts of meetings in Block’s chambers made public and examined by The Jewish Week show that he raised the issue of removing the forewoman from the jury and continuing deliberations without her. Federal law allows for a verdict from 11 jurors.
The forewoman, identified only by her designation in the jury pool as No. 32, had written in a note to the judge that other jurors "are beating up on me because I have said I have made up my mind and would not change."
This prompted Block and prosecutor Lauren Resnick to ponder whether Juror 32 had made up her mind about the case and was refusing to deliberate with an open mind.
"If we have a juror who refuses to deliberate, then we have the option of going with 11 jurors," said the judge.
Quijano then said he would "vigorously oppose that."
Juror 32 was called into the judge’s chambers and asked if she had made up her mind. She insisted she had written her note out of anger. "I was a bit upset, but there is room to change," the forewoman told the judge.
After saying "I am relying on you saying here that you have an open mind," Block escorted Juror 32 back to the jury room to continue deliberations, denying a request from Resnick to get an account from other jurors about whether Juror 32 had an open mind.
"People write things down that are often more candid than when things are posed to them," Resnick told the judge. "This is a juror who wrote down that she made up her mind and would not change."