- The Washington Times - Tuesday, January 8, 2002

NEW YORK (AP) A federal appeals court threw out the convictions of two black men yesterday in the slaying of a Jewish student during the 1991 Crown Heights riots, saying a judge's attempt to create a racially balanced jury was unconstitutional.
The 2nd U.S. Circuit Court of Appeals ordered a new trial for Lemrick Nelson Jr. and Charles Price, who had been serving long sentences for civil rights violations in the case that shook New York City a decade ago.
The court said U.S. District Judge David Trager's effort to secure an unbiased jury was flawed. It said the defendants wound up with a Jewish juror who had "expressed grave doubts about his ability to be objective."
"What the district court did in its effort to achieve a racially and religiously balanced jury was unquestionably highly unusual," the court said. "It was also improper."
No new trial date was set.
Defense attorney James Neuman said he was pleased with the order for a new trial but was disappointed that the appeals judges did not agree Mr. Nelson and Mr. Price were improperly charged in federal court.
"It's not a complete victory," he said. "I do think they stand a lot better chance because it's a second trial. They have a lot better idea what the prosecution is about."
Prosecutors did not immediately return a telephone message.
The case dates to Aug. 19, 1991, when a black 7-year-old, Gavin Cato, was struck and killed by a Jewish driver from the ultra-Orthodox Lubavitch community with headquarters in the Crown Heights section of Brooklyn.
Hours later, a gang of blacks shouting, "Get the Jew" fatally stabbed visiting rabbinical student Yankel Rosenbaum, 29. The violence over the next two days during which rioters broke windows, shouted "Heil Hitler," burned the Israeli flag and injured 188 reverberated around the world.
A grand jury declined to charge the driver, Yosef Lifsh.
Mr. Nelson, then 16, was charged with killing Mr. Rosenbaum and was acquitted during a trial in state court. However, he and Mr. Price were convicted during the 1997 federal trial before Judge Trager of violating Mr. Rosenbaum's civil rights.
Mr. Nelson was serving 191/2 years in prison. Mr. Price, who was videotaped provoking the rioters, was sentenced to 21 years and 10 months.
In its ruling, the appeals court noted that Judge Trager began the trial by announcing his intention to impanel "a moral jury that renders a verdict that has moral integrity."
During jury selection, the judge declined to exclude the Jewish juror who had expressed doubts about his ability to be objective.
When a black juror later was excused, the judge did not simply replace the juror with the first alternate, who was white, but instead removed a white juror from the panel and filled the two spaces with a black juror and the Jewish juror, the appeals court said.
The selection of these jurors out of order from the list of alternates was a "clear violation" of the rules of jury selection, the court said.
"The trial court's race- and religion-based reconstruction of the jury, whatever its motivation, is impermissible in light of the courts' special commitment to equal protection," the appellate judges wrote in their 109-page ruling.
During arguments in the men's appeal two years ago, prosecutors argued that Judge Trager's decision to take jurors out of sequence was "obviously unorthodox" but did not prejudice the defense.
Defense attorney James Neuman disagreed, saying, "This so fundamentally affects the entire integrity of the system that it cannot be approved."
At the time, the appellate judges expressed unease with the process. Judge Guido Calabresi called it an "explicit violation" of jury selection rules while Judge Fred Parker said he was concerned about "the public perception of the integrity of the process."

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