Nelson's Life and Limb

Published February 14, 1997.
  • Print
  • Share Share

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.


The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.





Find us on Facebook!
  • Move over Dr. Ruth — there’s a (not-so) new sassy Jewish sex-therapist in town. Her name is Shirley Zussman — and just turned 100 years old.
  • From kosher wine to Ecstasy, presenting some of our best bootlegs:
  • Sara Kramer is not the first New Yorker to feel the alluring pull of the West Coast — but she might be the first heading there with Turkish Urfa pepper and za’atar in her suitcase.
  • About 1 in 40 American Jews will get pancreatic cancer (Ruth Bader Ginsberg is one of the few survivors).
  • At which grade level should classroom discussions include topics like the death of civilians kidnapping of young Israelis and sirens warning of incoming rockets?
  • Wanted: Met Council CEO.
  • “Look, on the one hand, I understand him,” says Rivka Ben-Pazi, a niece of Elchanan Hameiri, the boy that Henk Zanoli saved. “He had a family tragedy.” But on the other hand, she said, “I think he was wrong.” What do you think?
  • How about a side of Hitler with your spaghetti?
  • Why "Be fruitful and multiply" isn't as simple as it seems:
  • William Schabas may be the least of Israel's problems.
  • You've heard of the #IceBucketChallenge, but Forward publisher Sam Norich has something better: a #SoupBucketChallenge (complete with matzo balls!) Jon Stewart, Sarah Silverman & David Remnick, you have 24 hours!
  • Did Hamas just take credit for kidnapping the three Israeli teens?
  • "We know what it means to be in the headlines. We know what it feels like when the world sits idly by and watches the news from the luxury of their living room couches. We know the pain of silence. We know the agony of inaction."
  • When YA romance becomes "Hasidsploitation":
  • "I am wrapping up the summer with a beach vacation with my non-Jewish in-laws. They’re good people and real leftists who try to live the values they preach. This was a quality I admired, until the latest war in Gaza. Now they are adamant that American Jews need to take more responsibility for the deaths in Gaza. They are educated people who understand the political complexity, but I don’t think they get the emotional complexity of being an American Jew who is capable of criticizing Israel but still feels a deep connection to it. How can I get this across to them?"
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.