After five extensions of a deadline, federal prosecutors no longer have the option of seeking to reinstate the conviction of Lemrick Nelson Jr. in the death of Yankel Rosenbaum during the Crown Heights riots a decade ago.
The clock ran out Friday, with no request from the Justice Department to present further arguments before the Second Circuit Court of Appeals.
A three-judge panel had ruled that Nelson was convicted by a racially gerrymandered jury.
The appeals court will now return the case to Federal District Court in Brooklyn for a retrial.
But while prosecutors and trial attorneys prepare for another go-round, Nelson’s appeal lawyer, James Neuman, says he will ask the United States Supreme Court to review the statutes used to convict his client.
If the high court ruled on Nelson’s behalf, it could destroy the ability of prosecutors across the country to try the perpetrators of hate crimes.
"An important civil rights statute could go down the tubes," said Marc Stern, associate director of the American Jewish Congress and the organization’s legal expert.
Nelson was acquitted of state murder charges in 1992.
But five years later, he and Charles Price were convicted in a federal trial of violating Rosenbaum’s civil rights.
Among the multiple arguments in a petition to be filed by May 8, Neuman will say that the 13th Amendment, which outlawed slavery and is the basis of civil rights law, was intended to protect racial, not religious groups. "The indictment says [Rosenbaum] was attacked because of his religion," said Neuman in an interview Tuesday.
He will also argue that Congress did not intend for the statute to be used to prosecute attacks on local streets.
But the Second Circuit has already rejected those arguments, ruling instead that the jury was improperly impaneled with racial considerations, agreed upon by both sides.
"We have stated at length in court papers that the statute used in this case is constitutional and the Court of Appeals agreed," said the acting U.S. attorney for the Eastern District, Alan Vinegrad.
Jewish groups, joined by the legal defense fund of the NAACP, had expressed concern to the Second Circuit court about preserving the hate crimes laws.
"In the Nelson case, the state prosecutors may have botched the prosecution, but at least there was a prosecution," said Stern. "If you don’t have a federal statute, there is no basis for federal prosecution when the state is unable, or unwilling, to bring about a vigorous prosecution."
Stern said Neuman may be faced with two opportunities to seek a Supreme Court hearing: one now, and one if Nelson is convicted at a new trial. "He could get two bites from the apple," said Stern.
Nathan Lewin, a Washington-based attorney specializing in Constitutional law, who has advised the Rosenbaum family on the case, said a Supreme Court petition would present prosecutors with a new opportunity.
"I would hope that if Nelson files a petition for review, the government will file a cross-petition to reverse the Court of Appeals on the jury issue," said Lewin, who has argued cases before the high court. "It’s likely the court would take up the issue because of the credibility of the defendants. First, they say they agree with the procedure, and then they turn around and appeal on that basis. It’s ridiculous."
Last month Price, after admitting he incited the mob that attacked Rosenbaum, had his sentence cut in half, to 11 years, avoiding a retrial. Prosecutors discussed a plea deal with Nelson until last week. "Ultimately my client decided he did not want to plead guilty," said Neuman.
On Sunday, Rosenbaum’s brother, Norman, headed back to his home in Australia after 10 weeks here waiting for a Justice Department decision.
Before leaving, he said he was "bewildered" by the refusal of Solicitor General Theodore Olson and Attorney General John Ashcroft to seek a new hearing that might have reinstated the convictions.