Days Of Angst In Rosenbaum Case

As federal prosecutors mull their next step in the Crown Heights murder case, the brother of Yankel Rosenbaum is vowing to stay in the United States until a decision is made while blasting both New York senators for what he considers disinterest in the case.
A retrial of the two men convicted in the case appears increasingly likely, with a deadline for the decision extended to March 29.
“The whole thing is just bewildering and ridiculous,” said Norman Rosenbaum, who has logged 1.8 million frequent flier miles between his home in Melbourne, Australia, and New York to monitor the case.
His latest trip was prompted by a federal appellate tribunal’s decision Jan. 7 to void the convictions of Lemrick Nelson Jr. and Charles Price on charges of violating Yankel Rosenbaum’s civil rights during the 1991 Crown Heights riots.
The judges ruled 2-1 that race-conscious jury selection in the 1999 trial, agreed upon by both sides, was unconstitutional.
On Friday the U.S. solicitor general, Theodore Olson, who must approve all federal appeals, announced that he would not seek a hearing on that ruling before the entire 13-member appeals circuit. Such a hearing, known as en banc, is granted in only a handful of cases per year.
That leaves the acting U.S. attorney for the Eastern District, Alan Vinegrad, with two options: presenting additional arguments before the same three judges, or prosecuting Nelson for the third time on charges that he attacked Rosenbaum as part of an angry mob shouting “Get the Jew” following a car accident in which a black child was killed. Rosenbaum was stabbed to death. Nelson was acquitted of state murder charges in 1992.
Price, who was convicted of inciting the mob that attacked Rosenbaum, never faced state charges.
Norman Rosenbaum said that during the early 1990s, when he was fighting for a federal probe of the murder, New York’s senators at the time played an important role. Republican Al D’Amato and Democrat Daniel Patrick Moynihan gathered a bipartisan Senate resolution that Rosenbaum believes helped convince Janet Reno, who was then attorney general, to take up the case.
But he said the current senators, Charles Schumer and Hillary Rodham Clinton, both Democrats, had yet to meet with him to discuss the case, as several local officials have.
“They say we’ll get back to you, but by the time they get back to me Lemrick Nelson will be walking the streets again,” said Rosenbaum. “Unfortunately these two senators don’t appreciate the significance of my brother’s case the way their predecessors did.”
After meeting with Schumer aides in Washington recently, Rosenbaum reportedly caught the senior senator on his way into the office but was unable to schedule a meeting.
“He fobbed me off,” said Rosenbaum, using an Australian term that denotes dismissive behavior. “He could have seen me the next day. But I haven’t heard from them since.”
Schumer spokeswoman Jenni Engebretsen blamed poor timing.
“They wanted to meet with the senator while he was completing a deal with the White House on $21.4 billion in aid for New York,” said Engebretsen.
But Rosenbaum said the encounter with Schumer occurred after the White House press conference in which President Bush announced post-Sept. 11 aid for New York.
Clinton spokeswoman Nina Blackwell said the senator was “unable to meet with [Rosenbaum] on short notice last week” but would try to arrange a future meeting.
Federal officials have until March 29 to decide how to proceed, although they could take action sooner. Rosenbaum said he understood that Olson could still reverse his decision not to seek the en banc hearing, and hoped he would do so.
“Why would he tie the hands of prosecutors in such a way?” asked Rosenbaum, who is an attorney. “I will debate any member of the Justice Department, the solicitor general or the attorney general, point by point, not as the brother but counsel to counsel about this.”
But Marc Stern, an expert on legal affairs for the American Jewish Congress, outlined several reasons why an en banc hearing would not be in the interest of the prosecution.
“[Olson] made a wise decision, if not a popular one,” said Stern.
Even if the case was accepted, it could be another year before it is heard, making an eventual retrial 11 or 12 years after the incident more difficult, he said.
“Now they can get started on the retrial immediately,” said Stern.
Stern further contends that an en banc hearing increases the likelihood that the case could make its way to the U.S. Supreme Court, where an examination of the federal statute that led to the prosecution of Nelson and Price could threaten future civil rights cases.
He also believes questioning the appellate tribunal’s ruling could have unintended ramifications.
“The holding that juries should not be manipulated for racial or religious considerations is a development the Jewish community should welcome, even if it has unfortunate consequences in this case,” Stern said.
Nathan Lewin, a Washington constitutional lawyer who is consulting with Rosenbaum on the case, calls the decision by Olson “foolish.”
“This is clearly the kind of case that should not be concluded without having all the active judges consider whether there is any basis for Judge [Guido] Calabresi’s ruling,” Lewin said, referring to the judge who wrote the majority opinion.
In the event that prosecutors seek a hearing before the same tribunal, they would only have to convince one judge to change his mind. In his dissenting opinion, Judge Chester Straub agreed that the jury formation was improper, but wrote that “requiring a retrial needlessly prolongs the pain of the community and families who were victimized by the defendants’ crimes.”
Either of the remaining justices, Calabresi or Fred Parker, could shift the majority.
But like the en banc hearing, a second hearing by an appeals panel is rare, and a reversal even more uncommon.
Rosenbaum noted that the March 29 deadline coincided with the second day of Passover, making it unlikely he’d spend the seders at home.
“There is every chance this is really going to interfere with my family,” he said.