- The Washington Times - Tuesday, January 15, 2002

Justice for the brutally slain Yankel Rosenbaum took a tragic detour last Monday when a three-judge panel of federal judges overturned convicted killer Lemrick Nelson's civil rights sentence. Nelson was found guilty of killing Rosenbaum during the Crown Heights riots in New York City a decade ago. It's not that the appellate court believes Nelson to be innocent of the crime rather, it has concluded that the manner in which the trial judge allowed the jury to be empanelled was impermissible.

This ruling is terrible news for the family of the murdered Hasidic rabbi, but there is a silver lining, namely that it signals a distaste at the court of appeals for racial and ethnic quotas and preferences.

Trial judge David Trager attempted to create a racially balanced jury a jury "that represents this community," in his own words. He purposefully, and with the blessings of the prosecution and the defense, allowed the race and religion of prospective jurors to be a criterion in the jury selection process. That was a mistake.

As evil and dangerous as Lemrick Nelson may be, he will now be tried once again because the judge disregarded the very colorblind principles on which our courts always depend. Race and religion should not be a factor in our criminal justice system. Our laws correctly prohibit the race of a defendant from being considered in the punishment phase of a trial and in the jury selection phase as well.

Moreover, the use of race by the government in any other context is wrong, too. The three judges that just struck down Nelson's conviction have added another precedent in support of this principle, which they should remember in future lawsuits, and which all government officials should take to heart.

If it is wrong to strike a juror because of his race, it is wrong for a university to admit or reject a student because of his or her race. If it wrong to use the race of a young man as an indicator of likely criminality, it is also wrong for a government contract to be awarded to someone because of his skin color. And it is wrong for government agencies like police and fire departments to justify discrimination in order to achieve a particular racial and ethnic mix "that represents this community."

This "race is proper here race is improper there" contradiction leads to confusion and exasperation on the part of policy-makers and the courts, not to mention the citizenry. Most civil rights groups have exacerbated the problem by wanting race to count sometimes, and sometimes not. Well, they can't have it both ways. Either skin color tells us something about how a person should be treated in society, or it doesn't.

Racially proportionate jury selection for black defendants has been gaining momentum in our nation's law schools in recent years. Professor Sheri Johnson of Cornell, and Professor Albert Alschuler of the University of Chicago, are on record as advocating a right for black defendants to a number of "racially similar" jurors. Judge Trager should have seen the slippery slope he was on when he used race and religion to seat jurors in this case. If he permitted racial balancing with Lemrick Nelson's jury, how would he be able to not allow it to be done for some Asian, Hispanic, or even Jewish defendants in the future?

The last thing New York needs now is another high-profile, racially polarizing trial. But if this means the federal court of appeals is serious about ending the use of racial and ethnic quotas and preferences across the board, it will be worth it.

Edward Blum is director of legal affairs at the American Civil Rights Institute (acri.org), and Roger Clegg is general counsel at the Center for Equal Opportunity (ceousa.org).

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