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Normally, defense lawyers would be ecstatic when the 2nd U.S. Circuit Court of Appeals reverses their clients’ convictions. But for attorneys Darrell Paster and James E. Neuman, the reversal on Jan. 7 of the civil rights convictions of Charles Price and Leck Nelson Jr. for the stabbing death of Yankel Rosenbaum during the 1991 Crown Heights riots was far from a complete victory. And the reasons for the ruling could make a real difference for their clients. The problem for the defense was that the appeals court, after ordering a new trial based on Eastern District of New York Judge David Trager’s well-intentioned but unconstitutional effort to have a racially and religiously balanced jury, upheld the statute on which the prosecution was based. The 2nd Circuit found that the law, 18 U.S.C. � 245(b)(2)(B), is a valid exercise of Congress’ power to eliminate slavery under the 13th Amendment of the U.S. Constitution. Had the 2nd Circuit struck down the law — as Paster and Neuman believe the current U.S. Supreme Court would be inclined to do — Eastern District U.S. Attorney Alan Vinegrad would not have the option of retrying Price and Nelson. “You can’t be disappointed when you get a good decision out of the 2nd Circuit reversing a conviction in such a politically charged case,” said Neuman, who represents Nelson. “So certainly, this is victory, but at the same time, we do feel that the case should have been dismissed altogether.” The defense argues that the statute under which the two men were convicted far exceeds the scope of congressional authority under the 13th Amendment, which was passed to address slavery and its aftereffects but not religious discrimination, and in any event, the evidence was insufficient for conviction. After Nelson was acquitted in state court of murder charges, the Eastern District U.S. Attorney’s Office filed federal civil rights charges against both him and Price. At trial before Judge Trager in 1997, the prosecution was able to proceed on the theory that Nelson, accused of stabbing and killing Rosenbaum, and Price, who incited the attack, violated Rosenbaum’s civil right to use a public facility, the streets of New York City. The statute forbids injuring or intimidating a person because of his race, color, religion or national origin because they are “participating in or enjoying any benefit, service, privilege, program, facility or activity provided by or administered by any State or subdivision thereof.” On appeal, Nelson and Price argued that the statute, at least as applied to them, was an improper exercise of congressional power under the Commerce Clause because the crime at issue was a local crime and not related to interstate commerce. The defendants also argued that the prosecution failed to prove that they displayed the “dual intent” required by the statute: attacking Rosenbaum because he was Jewish and because he was using the streets of Brooklyn. They claimed that the statute could not be applied to them because a public street is not a “facility” under the statute. COMMERCE CLAUSE At first, the government argued that the statute was constitutional under the Commerce Clause, � 5 of the 14th Amendment. But prosecutors changed their course while the appeal was pending when the Supreme Court decided the latest in a series of cases restricting the scope of Commerce Clause power, United States v. Morrison, 529 U.S. 598, (2000). In Morrison, the high court ruled that certain civil remedies in the Violence Against Women Act exceeded Congress’ power to regulate interstate commerce because domestic violence was primarily a concern of local law enforcement, and the connection to interstate commerce was too attenuated. In light of Morrison, the 2nd Circuit asked for supplemental briefs. Vinegrad and Assistant U.S. Attorney Valerie Caproni preserved their 14th Amendment argument, but emphasized that the law was also a proper exercise of congressional power under the 13th Amendment, which abolished slavery and gave Congress the power to enforce that ban by “appropriate legislation.” They cited case law supporting broad congressional authority to eliminate the “badges and incidents” of slavery. The 2nd Circuit agreed. In spite of this, however, Paster, who represents Price, said the government’s new argument still fails because the 13th Amendment was passed to address slavery of blacks and not discrimination based on religion. He also said the 13th Amendment cannot be extended to cover crime that is strictly local in nature. “In Morrison, in its discussion of the commerce clause, the Supreme Court said the problem was that Congress was regulating a local crime, and the same thing happened here, the federal government is prosecuting the local crime of murder in the second degree,” Paster said. The government also contended in its supplemental appellate brief that the justification under the 13th Amendment had been made before the appeal, and reiterated in the first set of briefs filed with the 2nd Circuit prior to Morrison. To the amazement of Paster, who claimed the prosecution had no right to change its argument so late in the game, the 2nd Circuit sided with the prosecution, finding that � 245(b)(2(B) “falls comfortably” within Congress’ power under the 13th Amendment as interpreted by the Supreme Court. Noting that the Supreme Court has interpreted the 13th Amendment as allowing legislation to eradicate “all forms and incidents” of slavery, 2nd Circuit Judge Guido Calabresi said the power has not been limited to protecting the most obvious and pertinent victims of slavery: blacks. He said the Supreme Court cases “not only extend the protections of Reconstruction Era civil rights statutes, now codified at 42 U.S.C. Sections 1981 and 1982, to Jews as a ‘race,’ they also implicitly rule that the 13th Amendment, the source of congressional power upon which the Court found that these statutes relied, protects Jews as a race.” “Finally, there is strong precedent to support the conclusion that the 13th Amendment extends its protections to religions directly, and thus to members of the Jewish religion, without the detour through historically changing conceptions of ‘race’ that we have just taken,” Judge Calabresi said. Calabresi then turned to the question of “dual motive” of attacking someone because of his religion and because of his use of a public street. The issue, the judge said, was “whether Congress could rationally have determined that the acts of violence covered by Section 245(b)(2)(B) impose a badge or incidence of servitude on their victims.” He concluded that the statute’s prohibition against private violence “motivated by the victim’s race, religion, etc. AND because of the victim’s use of a public facility,” falls well within Congress’ authority to fight the badges and incidents of slavery. Calabresi dismissed Paster’s argument that the streets of Brooklyn could not be considered a public facility. He then rejected the defendants’ claim that the prosecution’s evidence was insufficient on the issue of whether Price and Nelson had the motive and intent to punish Rosenbaum for his use of the public streets. “Here, the defendants’ actions clearly had the foreseeable effect of interfering with Rosenbaum’s contemporaneous and immediate use of the city street on which he was attacked … ,” he said. In dissent, Judge Fred I. Parker agreed that the convictions should be vacated because of the way the jury was seated, but disagreed with Calabresi’s interpretation of the word “because” in the statute, as well as the conclusion that the prosecution presented “sufficient evidence that this crime was committed because of the fact that Yankel Rosenbaum was using a public street at the time he was attacked.” “The only reason Judge Calabresi didn’t come to the same conclusion was his interpretation of the word ‘because,’” Neuman said. “He said that the word ‘because’ in the same sentence has two different meanings. One part, ‘because of religion,’ that refers to motivation, and ‘because’ of the use of a state facility, that was easier to prove and to infer from the circumstances.” “That’s why the case was not dismissed altogether,” he said. Judge Chester A. Straub dissented solely on the jury seating issue. Judge Trager, in an effort to have a credible and balanced jury, had seated a Jewish man who conceded he was disappointed in Nelson’s acquittal in state court. In return for the defense’s acceptance of the Jewish juror, Trager seated another black juror instead of a white juror, a process that Calabresi characterized as unconstitutional “jurymandering.” THREE OPTIONS Both sides in the case have the same three options: ask the three-judge panel to reconsider its opinion and rehear the case, ask all of the active judges on the 2nd Circuit to rehear the case en banc because the case presents issues of particular importance, or appeal to the U.S. Supreme Court. It is also possible that a petition for rehearing en banc could result in a new opinion by Judges Calabresi, Straub and Parker, issued sua sponte, without the en banc proceeding. But Neuman cautioned that “it would be foolish to predict,” what the 2nd Circuit might do. “We had three judges having three different opinions here,” he said. Neuman and Paster said the ball is in Vinegrad’s court, and that the prosecutor has to be concerned that any appeal to the Supreme Court might invite the same kind of restrictive interpretation of the 13th Amendment that the high court has made under the Commerce Clause and the 14th Amendment in Morrison and other cases. Vinegrad has 14 days from Monday’s opinion to ask for a rehearing in the 2nd Circuit, although he can apply for an extension. In the event that he moves to retry Nelson and Price, the defense lawyers would move to stop the prosecution by appealing to the Supreme Court. “They would have to confront a Supreme Court that has repeatedly struck down statutes very similar to this under the Commerce Clause and the 14th Amendment,” Paster said. Vinegrad said Jan. 10 he was pleased the 2nd Circuit agreed on the sufficiency of the evidence, but disappointed with the court’s ruling on the jury issue. Vinegrad said the Justice Department is “currently reviewing all available options for ensuring that justice is done in this case.”

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