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The federal government’s decision not to seek a rehearing of the reversal of the Crown Heights guilty verdicts before all 13 active judges of the 2nd U.S. Circuit Court of Appeals came as a surprise to appellate defense lawyers. Defense attorney James E. Neuman said he fully expected Eastern District U.S. Attorney Alan Vinegrad on Friday to seek en banc review of January’s split decision by a three-judge panel reversing the civil rights convictions of Lemrick Nelson Jr. and Charles Price. But instead, Vinegrad, who prosecuted Nelson and Price for the stabbing death of Yankel Rosenbaum, filed an affidavit with the 2nd Circuit saying that U.S. Solicitor General Theodore Olson had decided the government would not seek en banc review — a procedure employed by the court to resolve thorny legal issues of particular importance in the circuit. Neuman, who represented Nelson, said that he expected the government would seek a full review because of the way the original three-judge panel decided the case. By a 2-1 margin, the court found that Eastern District of New York Judge David G. Trager’s pretrial shuffling of jurors to obtain a racially and religiously representative panel was improper “jurymandering.” Neuman and other defense lawyers were happy that the verdict was overturned, but disappointed that the court upheld the constitutionality of the civil rights statute under which the two men were prosecuted. The court found that the civil rights statute, 18 U.S.C. � 245(b)(2)(B), was a valid exercise of Congress’ power to eliminate the badges and incidences of slavery under the 13th Amendment. A finding that the statute was unconstitutional would have prevented Vinegrad from retrying Nelson and Price altogether. So had the government sought rehearing en banc on the “jurymandering” issue — including whether the defendants effectively waived any objection to Trager’s seating of the panel — Neuman was ready to ask permission to reargue the constitutionality of the statute. And he liked his chances. “I had a petition for rehearing in en banc prepared and I was ready to go to the printer,” Neuman said Friday after the government made clear its decision. Neuman said that there were some risks for the government to seek rehearing en banc. “If they were to go forward, the Second Circuit may not have heard just the jury selection issues, they could have reheard the whole case,” he said. “And they could have thrown the whole thing out.” The defense lawyers feel the decision was a strategic one for the government and Vinegrad, who said following the 2nd Circuit’s decision that he was “fully committed” to seeking justice for Rosenbaum. Another issue facing Vinegrad and the Solicitor General is whether the case should be taken to the Supreme Court, and whether, in any event, it might be destined for the high court should Price and Nelson be convicted in a retrial. Price and Nelson argued on appeal that the federal civil rights statute as applied to the defendants was unconstitutional. In exercising its powers under the Commerce Clause, Congress has no authority, they argued, to regulate what is essentially a local crime that has no relation to interstate commerce. At first, the government contended that the civil rights statute was a legitimate exercise of the power of Congress to regulate interstate commerce. But their justification for the statute shifted to the 13th Amendment after the U.S. Supreme Court ruled that some civil remedy provisions in the federal Violence Against Women Act were unconstitutional because domestic violence was primarily a local law enforcement concern that had little, if any, relation to interstate commerce. Neuman and fellow lawyer Darrell Paster, who represented Price, said the Supreme Court’s logic in the case of United States v. Morrison, 529 U.S. 598 (2000), indicated that the high court would look with disfavor upon using the Commerce Clause to justify a Crown Heights federal prosecution on what were essentially local crimes: Price’s incitement of a crowd to attack Jewish people and the subsequent stabbing death of Rosenbaum at the hands of Nelson. Paster said concerns over the Commerce Clause would necessarily involve the solicitor general, in part because that office must sign off on any appeal to the Supreme Court. “My impression is that the case presents difficult constitutional issues that must inevitably involve the Solicitor General because the context of the case, particularly because of the decision in the Morrison case and the similar questions raised by this case,” Paster said. Paster said the defense has never felt that the Supreme Court would grant certiorari on the jury selection issue should the government choose to appeal the January decision. But, he said, the Supreme Court might be inclined to hear a case based on the 13th Amendment or the Commerce Clause, and would more than likely rule the federal statute unconstitutional — at least as applied to the defendants. Paster said: “The jury selection error is not one that needs redress by the Supreme Court and it was an issue that was peculiar to this trial. The rules on this have been fairly well articulated — it was the application of the rules to these facts that led to the reversal.” Neuman said that the government may also have been concerned that a rehearing en banc might increase the likelihood of the case being heard by the Supreme Court. Now that rehearing en banc has been foreclosed, Neuman expects that the only real avenue for the government is to retry the case. Vinegrad, who declined comment Friday, now has until March 29 to ask the original three-judge panel to rehear the case and reconsider its earlier decision. If there is no rehearing, and no appeal to the Supreme Court, he will retry Nelson and Price.

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