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The convictions of Lemrick Nelson Jr. and Charles Price for the death of Yankel Rosenbaum during the 1991 riots in Brooklyn’s Crown Heights area have been vacated by a divided 2nd U.S. Circuit Court of Appeals. Finding that Eastern District of New York Judge David G. Trager’s pretrial shuffling of jurors to ensure an appropriate racial mix and a panel that represented the “community” amounted to “racial and religious jurymandering,” the 2nd Circuit ordered prosecutors to either retry or free Nelson and Price. “What the district court did in its effort to achieve a racially and religiously balanced jury was unquestionably highly unusual,” 2nd Circuit Judge Guido Calabresi said in a 109-page opinion. “It was also improper.” After a black man empaneled as a juror had been excused in the racially charged case, Judge Trager did not replace him with a white alternate, but instead removed a second, white juror from the panel, and filled the two open spaces with a Jewish juror (who had expressed grave reservations about his ability to be objective) and a black juror. “[A]lthough the motives behind the district court’s race-and-religion-based jury selection procedures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary, that fact cannot justify the district court’s race-conscious actions,” Judge Calabresi said. “The significance of a jury in our polity as a body chosen apart from racial and religious manipulations is too great to permit categorization by race or religion even from the best of intentions.” The Crown Heights riots were triggered on Aug. 19, 1991, when the driver of a station wagon, who was Jewish, struck two black children, killing one. Two hours after the incident, as an angry crowd denounced what it saw as preferential treatment given the driver of the car by ambulance workers from a Jewish hospital, Charles Price addressed the gathering. On videotape, Price can be seen shouting, “Let’s get the Jews,” before the crowd headed toward Kingston Avenue. After throwing objects, setting cars on fire and attacking three Jewish residents of the neighborhood, the mob turned onto Brooklyn Avenue, where it spotted Rosenbaum, an Orthodox Jew in traditional dress. The crowd chased and fell upon Rosenbaum and began beating him. Here, it was alleged, that Nelson stabbed Rosenbaum, who later died of his wounds. After Nelson and Price were acquitted in New York’s Kings County Supreme Court, they were charged by federal authorities with violating Rosenbam’s civil rights, and convicted at trial before Judge Trager. Nelson, now 27, was sentenced to serve 19 1/2 years behind bars. Price, now 47, was sentenced to 21 years and 10 months in prison. During jury selection, Trager took several steps that were later challenged by the defense. First, the judge denied the defense’s challenge to the fact that prosecutors used five out of nine of their peremptory challenges to strike black jurors from the panel, when blacks made up only 30 percent of the jury pool. Then, when Juror 108, a Jewish man, admitted to being biased, Trager spoke with the lawyers, and proposed a plan to skip over a white alternate, remove a white juror from the panel — and seat Juror 108 and another black person. “The defendants before us did not consent to empaneling of Juror 108 standing alone,” Judge Calabresi said. “They agreed to his seating only in the context of the district court’s larger scheme to secure a jury that displayed the racial and religious diversity that the district court desired. In effect, the defendants, at the district court’s prompting, consented to the placement of Juror 108 on the panel IN EXCHANGE FOR the assignment to the panel of an additional African-American juror in the place of [a] different white juror who otherwise would have been seated.” Calabresi said the defendants’ acceptance of the judge’s “jury-packing scheme,” did not “constitute a valid waiver” of the defendants’ argument that the inclusion of a biased juror, Juror 108, was unconstitutional. “That is, we hold that a waiver to a juror’s impartiality cannot be accepted when it was obtained by the promise of seating a jury with what the defendants apparently believed were ‘desirable’ racial characteristics,” he said. A majority of the court rejected a challenge to the constitutionality of the statute under which Nelson and Price were convicted, 18 U.S.C. �245(b)(2)(B), holding that the section “as applied to religiously or racially motivated attacks against Jews — is a constitutional exercise of Congress’s power under the Thirteenth Amendment.” Said Judge Calabresi, “We further hold that the trial court’s race-and-religion-based reconstruction of the jury, whatever its motivation, is impermissible in light of the courts’ special commitment to equal protection.” PARTIAL DISSENT In a partial dissent, Judge Chester J. Straub said he joined with the majority “in almost all respects,” but added that “I do not believe that vacating the sentence provides a sensible remedy in this case.” “Instead,” Straub said, “I favor the government’s recommendation that we affirm the sentence, while noting our willingness to consider the possibility of vacatur in future cases, should they arise.” But 2nd Circuit Judge Fred I. Parker agreed the convictions should have been vacated. He also agreed that �245(b)(2)(B) was constitutional, but did not share Judge Calabresi’s reasoning in support of that conclusion, specifically as it concerned civil rights protections to people based on their religion. James E. Neuman represented Nelson. Darrell L. Paster represented Charles Price. Acting Eastern District U.S. Attorney Alan M. Vinegrad and Special Assistant U.S. Attorney Valerie Caproni represented the government.

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