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!
  • Law professor Dan Markel waited a shocking 19 minutes for an ambulance as he lay dying after being ambushed in his driveway. Read the stunning 911 transcript as neighbor pleaded for help.
  • Happy birthday to the Boy Who Lived! July 31 marks the day that Harry Potter — and his creator, J.K. Rowling — first entered the world. Harry is a loyal Gryffindorian, a matchless wizard, a native Parseltongue speaker, and…a Jew?
  • "Orwell would side with Israel for building a flourishing democracy, rather than Hamas, which imposed a floundering dictatorship. He would applaud the IDF, which warns civilians before bombing them in a justified war, not Hamas terrorists who cower behind their own civilians, target neighboring civilians, and planned to swarm civilian settlements on the Jewish New Year." Read Gil Troy's response to Daniel May's opinion piece:
  • "My dear Penelope, when you accuse Israel of committing 'genocide,' do you actually know what you are talking about?"
  • What's for #Shabbat dinner? Try Molly Yeh's coconut quinoa with dates and nuts. Recipe here:
  • Can animals suffer from PTSD?
  • Is anti-Zionism the new anti-Semitism?
  • "I thought I was the only Jew on a Harley Davidson, but I was wrong." — Gil Paul, member of the Hillel's Angels. http://jd.fo/g4cjH
  • “This is a dangerous region, even for people who don’t live there and say, merely express the mildest of concern about the humanitarian tragedy of civilians who have nothing to do with the warring factions, only to catch a rash of *** (bleeped) from everyone who went to your bar mitzvah! Statute of limitations! Look, a $50 savings bond does not buy you a lifetime of criticism.”
  • That sound you hear? That's your childhood going up in smoke.
  • "My husband has been offered a terrific new job in a decent-sized Midwestern city. This is mostly great, except for the fact that we will have to leave our beloved NYC, where one can feel Jewish without trying very hard. He is half-Jewish and was raised with a fair amount of Judaism and respect for our tradition though ultimately he doesn’t feel Jewish in that Larry David sort of way like I do. So, he thinks I am nuts for hesitating to move to this new essentially Jew-less city. Oh, did I mention I am pregnant? Seesaw, this concern of mine is real, right? There is something to being surrounded by Jews, no? What should we do?"
  • "Orwell described the cliches of politics as 'packets of aspirin ready at the elbow.' Israel's 'right to defense' is a harder narcotic."
  • From Gene Simmons to Pink — Meet the Jews who rock:
  • The images, which have since been deleted, were captioned: “Israel is the last frontier of the free world."
  • As J Street backs Israel's operation in Gaza, does it risk losing grassroots support?
  • 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.