THE SECOND CIRCUIT'S RECENT REVERSAL OF TWO GUILTY VERDICTS IN THE YANKEL ROSENBAUM KILLING, AND THE THE DIFFICULT ISSUE OF RACE-CONSCIOUS JURY SELECTION

On January 7, the United States Court of Appeals for the Second Circuit issued a ruling vacating the convictions of Lemrick Nelson, Jr. and Charles Price for violating the civil rights of Yankel Rosenbaum in August of 1991.

Nelson was convicted of attacking and stabbing Rosenbaum to death on the streets of Crown Heights, New York, after receiving encouragement from Price. The evidence showed that Rosenbaum had been selected as a victim because he was Jewish. (The attack on Rosenbaum had followed an incident in which another Jewish man, unrelated to Rosenbaum, accidentally drove his station wagon into two African-American children, one of whom - Gavin Cato - died of his injuries. The evidence showed that in attacking Rosenbaum, Price and Nelson, who were both African-American, were exacting vengeance for Cato's death.)

Like the police officers who beat Rodney King in 1991, Nelson was first prosecuted in state court. The state jury acquitted Nelson of all charges, including second-degree murder. However, as in the Rodney King case, many in the public perceived the acquittal as an instance of racially-motivated jury nullification, rather than a reasoned response to the evidence presented at trial.

Following his acquittal, prosecutors therefore brought federal civil rights charges against Nelson in federal court. (Double jeopardy does not bar a federal prosecution that succeeds a state prosecution; separate sovereigns may both prosecute a defendant based on the same set of facts). This time, they also charged Price with violating Rosenbaum's civil rights.

The second trial was meant to afford both sides a fair and impartial consideration of the facts, and to guarantee them a verdict rendered upon the evidence and only upon the evidence. As it happened, however, the judge's racial gerrymandering of the jury (a.k.a. "jurymandering") resulted in verdicts of guilty that were called into question, and then reversed on appeal.

A Judge's Jurymandering

Judge David Trager, a federal judge in Brooklyn, selected the Nelson jury with the conscious goal of avoiding what he perceived to be the pitfalls of Nelson's first prosecution. Judge Trager stated explicitly that "[t]his trial is occurring for the same reason Rodney King's trial occurred, the second trial, because the first jury did not represent the community." In Judge Trager's view, it was thus crucial to empanel a racially and religiously mixed jury.

With this objective in mind, Judge Trager went about empanelling a jury that would ultimately include two people - a Jewish man and an African-American man - who were seated expressly because of their religion and race, respectively.

The first of the two jurors selected in this fashion - Juror 108, the Jewish man -told the judge that he was not sure he could render a fair and impartial verdict in the case. He said he had followed the first trial and was disappointed in the outcome.

Juror 108 added that although he wanted to believe he could be objective, he had to admit he was not confident he could. These revelations should have disqualified the juror from serving. A basic predicate of jury service is the juror's ability to render a fair and impartial verdict.

When the defense properly challenged Juror 108 for cause, however, based on his acknowledged bias, Judge Trager denied the challenge, stating that "I will not allow this case to go to the jury without 108 as being a member of that jury, and how that will be achieved I don't know." (Successful challenges "for cause" result in a juror's dismissal, due to bias or another clear disqualification, without reducing the remaining number of strikes available to the challenging party.)

Invalid "Consent" to a Biased Juror

Judge Trager did later figure out how to include Juror 108, and also how to effectuate more generally his overall plan to empanel a racially and religiously diverse jury. The method he chose, however, was illegal, according to the appeals court.

What Judge Trager did was to convince the defense to "consent" to including Juror 108. How? As Court of Appeals Judge Guido Calabresi - writing on behalf of a majority of the appeals panel - described it, "[i]n effect, the defendants, at the district court's prompting, consented to the placement of Juror 108 on the panel in exchange for the assignment to the panel, of an additional African-American juror."

The Appeals Court held that the court's offering the defense an African-American juror to induce them to accept a biased juror, was improper. Accordingly, the court concluded that the defendants' consent to the arrangement was invalid; under the circumstances, the defense had not validly waived the right to an impartial jury.

As a result of these holdings, the Court of Appeals vacated the convictions of both defendants and remanded for retrial "before a properly chosen, impartial jury."

Jury Diversity and the Constitution

Though the Second Circuit clearly disapproved of Judge Trager's conduct, the majority did not address the question of whether the trial court violated the Equal Protection Clause of the Fourteenth Amendment, which forbids government discrimination, by deliberately manipulating the composition of the jury on the basis of race and religion. This question of constitutional law is extremely important, however, and could have profound implications for our legal system if and when it is decided in the future.

If the Second Circuit and other courts ultimately determine that the Constitution requires race-neutrality (or color-blindness) in jury selection, this would hardly represent a surprising development. In a series of well-known rulings, the Supreme Court has held that the Fourteenth Amendment prohibits trial lawyers from eliminating jurors from the venire based on their race or gender.

The seminal case is Batson v. Kentucky, which held that a prosecutor may not use race as a basis for peremptory challenges. Peremptory challenges normally permit each party to strike a set number of jurors without having to articulate any rationale for their dismissal. The holding in Batson circumscribed that potentially boundless discretion to some extent. In another important decision, Edmonson v. Leesville Concrete Co., the Supreme Court extended Batson to include civil litigators' exercise of peremptory challenges. The Court said there that "if race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution."

Under these and the cases that followed, the anti-discrimination principle in peremptory challenges came to encompass the conduct of all trial lawyers, including criminal defense attorneys trying to increase the odds of acquittal for their clients. The logic of these cases therefore necessarily extends to the trial judge, a person who is obviously a state actor subject to the dictates of the Fourteenth Amendment.

The nation's history of all-white, male, Christian juries who brought their prejudices to bear on the cases they decided no doubt contributed to the Supreme Court's decisions to bar discrimination in the selection of criminal and civil juries. It is equally clear that Judge Trager - in his own unusual way - was also attempting to respond to this country's history of discrimination in acting as he did.

One could conclude, moreover, that had Judge Trager done so without insisting on seating a blatantly biased juror, his behavior might have been defensible. Seating Juror 108 after he had confessed his bias, though, was an error that required reversal of the verdicts against Nelson and Price, notwithstanding the Court of Appeals' finding that the convictions were both fully supported by the evidence. But would the judge have been acting in accord with the Constitution if he had exacted an agreement from the parties to seat both an unbiased Jewish juror and an unbiased African-American juror? Put another way, was the problem with Judge Trager's strategy the consensual swap of jurors, the inclusion of the biased juror, or both?

In Defense of Juror Affirmative Action

As many politically and racially charged trials have evidenced, a race-neutral approach to selecting a jury can often result in the sorts of homogeneous, insular juries that the rulings in Batson and Edmonsonwere designed, in part, to prevent.

This occurs in part because of housing patterns that reflect a history of deliberate exclusion and segregation, since juries are chosen from the surrounding community. To ignore race, and simply draw upon the local community, can easily have the effect of producing racially-biased juries like the all-white group in Simi Valley that acquitted Rodney King's assailants.

The dilemma faced by Judge Trager is a familiar one from other areas of law. Over the last several decades, businesses, schools, and public institutions have chosen on occasion to take race, ethnicity, gender, and religion into account in order to ensure an otherwise elusive diversity or balance. This raises an interesting question: Should there be some form of affirmative action for jurors, as well?

One underlying premise of affirmative action in other contexts is that were it not for a history of discrimination and segregation, in access to educational and employment opportunities as well as housing, there would most likely be diversity as a matter of course. Because the effects of discrimination are difficult to uproot, color-blindness or "neutrality" can therefore perpetuate an oppressive homogeneity.

The same might be said for juries. Absent a history of residential segregation, most juries would be integrated as a matter of course. But because we do have such a history, choosing a jury "neutrally" often means imposing on the jury a racial disproportion, the effects of which can be unfair to the defendant - or in some cases, to the prosecution.

Judge Trager was apparently attempting to address himself, however awkwardly, to the phenomenon by which color-blind jury selection risks jury homogeneity. Though the way he implemented his concern was in error, the impulse behind it was not.

After all, in the federal civil rights trial arising from the Yankel Rosenbaum killing, most people would probably agree that having a jury that included both unbiased African-American jurors and unbiased Jewish jurors would make sense, given the nature of the case. Such a jury's unanimous verdict would be hard to criticize, likely to be supported by the evidence, and unlikely to cause any social upheaval or be perceived as jury nullification. The question, however, is how we can get such a jury without committing improprieties - including wrongful racial and religious discrimination in jury service - along the way. Judge Trager's solution did not work, but we should keep trying.

In keeping with the important objective of integrating spaces that have persistently tended toward de facto segregation, the Second Circuit and the Supreme Court should perhaps - cautiously - consider modifying the rules of jury selection.

As Justice Harry A. Blackmun commented in the 1978 case of Regents of the Univ. of Calif. v. Bakke, it may be impossible to diversify successfully in a racially neutral way: "To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way." In criminal trials of racially motivated murder, these words continue to ring true.