- The Washington Times - Tuesday, January 22, 2002

The prepackaged multiculturalism celebrated in mainstream academia and politics is threatening to infest evenhanded justice. The U.S. 2nd Circuit Court of Appeals recently erected a laudable wall against the infestation in United States vs. Lemrick Nelson Jr. and Charles Price (Jan. 7). Whether that wall will hold against the force of a relentless contrary multicultural orthodoxy is problematic.

If the wall crumbles, then the legitimacy of the law will be wounded. The stakes cannot be understated.

The federal civil rights criminal prosecutions of Nelson and Price emerged from black-Jewish fury inflamed by an auto accident in the Crown Heights area of Brooklyn, New York. A Jewish driver struck two black children, leaving one dead and the other seriously injured. A crowd of several hundred gathered at the accident scene. Outrage was voiced over the appearance of a Jewish hospital ambulance to assist the Jewish driver before two New York City ambulances arrived to treat the black children. Defendant Price, an African-American, began exhorting the crowd with a witches brew of anti-Semitic invective, including:

"If it was a black man that did this, they would have gone to jail instead of being pulled inside of an ambulance for safekeeping."

"We can't take this anymore. They're killing our children. The Jews get everything they want. The police are protecting them."

"What are we going to do about this? Are we going to take this anymore?"

"Let's get the Jews" and "Eye for eye. No justice, no peace."

Price further shouted to the aroused crowd words to the effect of, "Let's go to Kingston Avenue and get the Jews."

The gathering turned violent, throwing objects, torching two cars, attacking a Jewish couple and assaulting a second Jewish man. As the crowd traversed Kingston Avenue onto Brooklyn Avenue, Yankel Rosenbaum, a bearded man gowned in orthodox Jewish dress, was spotted. More incendiary speech ensued: "Get the Jew, kill the Jew."

Mr. Rosenbaum fled, was captured and beaten by the crowd, and died of a knife stabbing inflicted by Nelson, an African-American. Nelson was prosecuted and acquitted in a New York state trial on a cluster of charges, including second degree murder in connection with Mr. Rosenbaum's death.

Federal criminal civil rights prosecutions followed against both Nelson and Price, comparable to the successive state and federal prosecutions of Los Angeles police officers accused of beating Rodney King.

The U.S. Supreme Court held in Abbate vs. United States (1959) and Bartkas vs. Illinois (1959) that the Fifth Amendment prohibition against double jeopardy is no barrier to discrete federal and state trials stemming from the identical criminal episode.

The gist of the federal indictments charged that the two, by force and threats, knowingly injured or intimidated Mr. Rosenbaum because of his religion and because he was enjoying the public streets provided by New York City, resulting in death.

The federal trial judge feared a second edition of the rioting ignited when the California state monochromatic jury returned not guilty verdicts in the initial trial of the Los Angeles officers. According to District Judge David G. Trager, verdicts concerning Nelson and Price would command community legitimacy and acquiescence only if the jurors fairly reflected its racial composition, declaring: "I have an agenda here which I have made very clear from the very beginning, to end up with a jury that represents the community that will have moral validity; and if there is a hung jury, that itself will be a statement to both sides about what is the process and the problems are with our society. To me, justice will be served."

Judge Trager thus manipulated the selection of jurors, contrary to the federal rules of criminal procedure and the constitutional guarantee of equal protection, to achieve three African-Americans, one professed Jew, and one with Jewish parents. He empaneled the known Jew despite his confessed reservations concerning impartiality. Religion counted more than accurate fact-finding in the eyes of Judge Trager.

Guilty verdicts were returned against both defendants. Nelson and Price were sentenced to 235 and 262 months in prison, respectively. Although both had consented to the jury manipulation by Judge Trager, both challenged its legality on appeal and were sustained.

Writing for a three-judge panel of the 2nd Circuit, Judge Guido Calabresi denounced racial or religious quotas in jury selection as epitomizing unconstitutional stereotyping or bigotry. As the Supreme Court elaborated in Powers vs. Ohio (1991), "the Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. The courts are under an affirmative duty to enforce the strong constitutional policies embodied in that prohibition."

There is no exception to mollify private community prejudices or enmities. That would breed what should be extirpated, as the Supreme Court acknowledged in Palmore vs. Sidoti (1984). Where would be the stopping point? Would the three outstanding al Qaeda-linked defendants Zacarias Moussaoui, Richard C. Reid and John Walker Lindh enjoy a right to jury quotas of Muslims, Afghans or Arabs?

Would Jewish Defense League members accused of crimes against Muslims be entitled to a 50 percent Jewish jury?

Furthermore, racial or religious jury quotas fortify private beliefs and fanaticisms that the law cannot transcend bigotries inherent in all fact-finding, views or analyses of events or morals. According to their paranoias and dementias, all truths and facts are culturally biased (except for their own), even the ethnic and religious identities of the September 11 terrorist criminals. No legislative, executive or judicial action, they tacitly avow, deserve obedience absent a consensus among a multicultural coalition.

There may be better ways to corrupt the rule of law and to convulse society than to give official effect to such anti-social convictions, but if there are, they do not readily come to mind.

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