Legal Twist: Crown Heights Killer Asking To Get Away With Murder

By E.J. Kessler

Published May 02, 2003, issue of May 02, 2003.
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It was a legal tactic breathtaking in its chutzpah. Some compared it to the old joke about the fellow who murders his parents, then asks for the mercy of the court because he is an orphan. But few doubted it might work.

Through 12 years and two trials, Lemrick Nelson, the black youth arrested, tried and acquitted in the knife slaying of a chasidic scholar during the anti-Jewish Crown Heights riots of 1991, has insisted he was innocent. Now, facing his third trial, he admits he did it.

Nelson says, however, that he was not motivated by antisemitism. He was simply drunk on beer and “caught up in the excitement” when he stabbed the chasidic scholar, Yankel Rosenbaum, 29. That, Nelson’s lawyer told a federal court this week, means that the jury in his current trial should find him innocent on the federal charge of violating Rosenbaum’s civil rights. Since a state court long ago acquitted him on the murder charge, he should be free to go.

“He’s asking literally to get away with murder, but legally, it’s entirely sound,” said constitutional lawyer Marc Stern, assistant executive director of the American Jewish Congress. “It’s a gutsy legal maneuver. It shows that his lawyer is very much alive above the neck.” Moreover, Stern said, it could work.

The legal twist is merely the latest twist in a drama that has divid-ed New York for more than a decade. Rosenbaum was killed by a mob of black youths shouting “Get the Jew.” Nelson was arrested a few blocks away, and police said he had a bloody knife in his pocket and was identified in a face-to-face encounter with the dying Rosenbaum.

The slaying came during the early hours of a three-day riot by black youths, touched off when a black child was run over and killed by a speeding car in the entourage of the Lubavitch leader, Rabbi Menachem Schneerson. Black activists complained that the police were unfair for not arresting the Lubavitch driver. Jewish leaders complained that the city’s black mayor was too tolerant of the rioting black youths. Nelson’s repeated trials have become a lightning rod for the racial symbolism of the case, despite efforts by authorities to stick to the facts.

Tried on murder charges in October 1992, Nelson was acquitted by a mostly black jury that refused to believe police testimony. In 1997, following nonstop pressure on the Clinton administration, Nelson was charged in federal court with violating Rosenbaum’s civil rights, under a statute used during the civil rights era to sidestep the racism of Southern white juries. He was convicted, but the verdict was thrown out in 2000 after an appeals court ruled the judge had acted improperly in seeking racial balance on the jury. Nelson is now facing a retrial on the federal charges.

According to Stern, Nelson’s astonishing admission appears intended to throw a wrench into the government’s case, which is difficult to prove anyway since the prosecution must show Nelson killed Rosenbaum specifically because he was a Jew. “To do it at the last minute leaves the government in an awkward position,” Stern said. “I’m sure that’s not where the government’s case was focused. Now it’s got to scramble.”

Rosenbaum’s brother Norman, reached by phone as he was monitoring the proceedings in a Manhattan courtroom, told the Forward that both the family and the prosecutors had contemplated that Nelson might make such a move. As such, he said, they were not surprised so much by the fact that he did it, but rather by the way he did it.

The defense’s strategy, however, does not impress Rosenbaum, himself a lawyer. “He was caught up in the excitement?” he asked rhetorically. “He was excited to get a Jew. That’s what he succeeded in doing.” Even so, Rosenbaum said he is “under no illusion. There’s a new trial, there’s a presumption of innocence and there’s every possibility he could be acquitted.”

If that is the case, Rosenbaum said, “We’ll seek justice. We’ll continue to do that.”

Nelson’s lawyers, Richard Jasper and Peter Quijano, did not return calls left at their offices. Neither did Nelson’s original lawyer, Trevor Headley.

New Yorkers questioned by the Forward appeared to react along predictable racial lines, with Jews voicing impatience and outrage, while blacks seemed to wish the affair would go away.

“It’s pretty outrageous,” said Rabbi Jacob Goldstein, then, as now, head of the Crown Heights Community Board. “I was in Crown Heights and lived through the pogrom. Now they’re saying that the pogromists were drunk, that they weren’t responsible for their actions? People were drunk for three days?”

Even so, Goldstein said, the defense could work. “I have to give the lawyer credit for creativity, or in this case, chutzpah,” he said, likening the strategy to that of thieves “who get shot in the course of a robbery and sue the victim.” The strategy is outlandish, Goldstein said, “but maybe a jury will buy into it.”

Leaders of the citywide Jewish community were taking a loftier tone, insisting they had confidence in the justice system to see through the ploy.

“We’ve got confidence in the justice system,” said the director of the Anti-Defamation League’s New York Office, Joel Levy. “We assume justice will be done. We think it’s important that he’s admitted the stabbing and want to watch how the trial proceeds.”

In the city’s grittier Jewish neighborhoods, however, the news brought anger. “This whole process is a humiliation to the Jews of New York and the Jews of the entire world,” said Oleg Gutnick, a Russian immigrant who ran unsuccessfully for New York City Council from the Brighton Beach section of Brooklyn. “I wouldn’t say people are afraid,” Gutnick said, “but they’re anxious that justice will be served this time.”

Blacks, by contrast, seemed bewildered by the events. Peter Noel, an African-American journalist who co-hosts a radio talk show with an Orthodox rabbi, “Kosher Sex” author Shmuley Boteach, professed to be “totally perplexed” by Nelson’s strategy. “Some people think it’s a brilliant strategy. I think it will backfire,” he told the Forward. “If he is acquitted the family will still go after him in a civil trial. I don’t see the strategy here.… Who advised this kid? The stigma of having a murder will follow him for the rest of his life.”

Officials at Jewish and African-American defense organizations, for their part, reacted variously to Nelson’s admission.

David Dinkins, who was New York’s mayor at the time of the Crown Heights riots and has been on the receiving end of criticism about the city’s handling of the affair ever since, reacted grumpily when reached by the Forward. “I don’t have any reaction,” he said in a telephone interview. “I don’t know what he did or didn’t do.” He called Nelson’s admission “his lawyer’s ploy,” adding, “we can’t possibly know whether he was out to get a Jew or a 16-year-old out drinking beer and out to do harm.”

Another former mayor, Ed Koch, himself a lawyer, said that the defense’s strategy is “not inappropriate,” and that it is common for defendants to change their stories post hoc; such maneuvers, however, rarely work. “There’s no question it was a racial murder. I hope the jury sees through the idiocy of the defense” and convicts Nelson, Koch said, adding, “What’s interesting to me is that, with the passage of time, relations [between chasidim and blacks] are better on Eastern Parkway,” the main thoroughfare in Crown Heights.

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