Word around the federal courthouse in Brooklyn is that Lemrick Nelson is going to appeal his conviction in the killing of Yankel Rosenbaum on the basis of double jeopardy. He will apparently contend that to try him on federal criminal charges after his acquittal on state murder charges violates the provision of the Constitution — the Fifth Amendment — which says no person shall be subject for the same offense to be twice put in jeopardy of life or limb. These columns joined with the Jewish community in urging the second prosecution following the jury’s acquittal in his first trial, which was for murder, because, under a green light from the Supreme Court, such prosecutions are proceeding apace. Stacey Koons was sent to the big house for criminal violations of civil rights law. Far be it for us to suggest that the United States should not pursue a similar case against Nelson, particularly when a number of members of the jury that acquitted him of murder then went out celebrate his acquittal at a dinner party at which they toasted the man the police insisted had a the bloody knife in his pocket, was identified as the killer by the dying victim and confessed. The guilty verdict brought in under federal civil rights law was all the more satisfying given the heroic quest for legal vindication mounted by Yankel Rosenbaum’s brother, Norman.
Having said all that, we find ourselves growing increasingly uncomfortable with the whole concept of double jeopardy as embodied in these civil rights prosecutions. A wire just in from Professor Andrew Kull of Emory University points out that there are a few few things that are undeniably constitutional in the narrow sense that the Supreme Court has said they are constitutional, but about which any thinking person must have serious doubts. Until 1954, points out the professor, himself the author of a book called “The Color-Blind Constitution,” it was undeniably constitutional (in this sense) for a state to require that white and black children attend separate schools. “So it is with double jeopardy,” he writes. “After Nelson has been tried for murder by the State of New York and found not guilty, it is constitutional for the federal government to try him again for the same crime — because the Supreme Court has said it is.” The reason, he writes, is supposedly “dual sovereignty,” meaning one trial by the state government, another by the federal government. So, in theory, nobody is trying anyone twice. The problem is that the double-jeopardy clause is just as clearly violated when America brings the second prosecution as it would be if the State of New York simply wanted a second try. “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence,” the Supreme Court has written, “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.”
This is not what happened in the O.J. Simpson case. Mr. Simpson was tried on criminal charges only once; the civil proceedings are another matter altogether. We are concerned with double criminal prosecutions. Professor Kull points out that one would not want hostile state authorities to be able to immunize a defendant against legitimate federal charges by conducting a trumped-up prosecution. If the Justice Department wanted to pursue civil rights charges against a defendant who was acquitted of murder when the state didn’t make a real effort — imagine a white defendant, a black victim, and a stereotypical southern courtroom of the 1950s — we might agree that the defendant had never really been “in jeopardy of life or limb” because the first prosecution had been a phony. Nobody can say the State of New York did not try to convict Nelson the first time round. America wanted to try him again because they thought the New York jury got it wrong. The Justice Department was probably right about that. But there have been few laws since Sinai as mighty as the Fifth Amendment. If Nelson prevails on appeal, he would not be the only criminal to whom our society has granted protection of life and limb under the Fifth Amendment so as to safeguard liberty in the land. Meantime, New Yorkers will have to live with the fact that their own local court was found incapable of doing justice without fear or favor after the worst anti-Jewish riot in New York history.