The Verdict in the Lemrick Nelson Trial:
Jury Deliberations Expose a Troubling Reality

By SHERRY F. COLB
Wednesday, Jun. 04, 2003

In 1991, in New York City, a Hasidic man accidentally drove a motorcade carrying Lubavitcher Rebbe Menachem Mendel Schneerson into two African-American children. One of the children - seven year old Gavin Cato - died at the scene.

In the hours following the accident, a rumor spread within the black community of Crown Heights that Jewish ambulance workers had ignored the injured children and offered help only to the Jewish driver. In response, a group of African Americans began to riot.

In the course of rioting, the violent crowd yelled "Get the Jew" and chased down Yankel Rosenbaum, an Australian Jewish man in his twenties who happened to be walking in the neighborhood. One of the pursuers, Lemrick Nelson, stabbed Rosenbaum with a knife. Rosenbaum was subsequently taken to a hospital, where he died of internal bleeding.

In the next decade, Nelson stood trial for his actions in a series of state and federal criminal proceedings, each of which was controversial in its own way.

At the most recent of these trials, which ended last month in a Brooklyn federal court, a jury found Lemrick Nelson guilty of violating Yankel Rosenbaum's civil rights by stabbing him.

Answering a separate question, however, the jury found that Nelson's actions did not cause his victim's death. That finding was a major triumph for the defense. Because Nelson had already spent time in jail awaiting trial, and because the maximum sentence for violation of civil rights (in the absence of homicide) is ten years, Nelson may ultimately walk out of prison in less than a year.

Given the facts in this case, the jury's verdict is logically incoherent. As such, it may reveal a general weakness in our system: the jury's difficulty performing logical analysis.

The Rules of Evidence and Their Purpose

We have rules of evidence largely because we do not trust juries to disregard information that logically ought to be disregarded. Because of such mistrust, some of the most ferocious battles to take place during a trial are those regarding whether a piece of evidence ought to be admitted or not.

The admission of irrelevant evidence wastes time, of course, but parties rarely become exercised over the possibility that time might be wasted. Instead, the reason that one side is willing to spend time and energy fighting the admission of a piece of evidence is often the fear that the jury will be unable to understand what is obvious to the lawyer (and perhaps to the judge and opposing counsel as well): the evidence is not relevant.

One Evidentiary Battle: The Causation Issue in the Nelson Civil Rights Trial

Such a battle predictably occurred in the Nelson trial. There, the defense sought to introduce facts about the hospital's alleged negligence in caring for Yankel Rosenbaum before he died. Prior to the criminal trial in question, Rosenbaum's family had sued the hospital, claiming that but for medical malpractice in failing to notice the depth of a wound, Rosenbaum would not have died.

Under some circumstances, medical malpractice evidence might be relevant in an assailant's murder trial. Consider the following example: You step on the foot of a fellow train passenger deliberately, because the other passenger previously made you miss your stop by failing to move over when you were attempting to exit the car. The passenger goes to the hospital to have his foot treated for minor resulting injuries.

At the hospital, a couple of medical residents confuse this patient with another who is there for a heart bypass. They accordingly wheel him into a surgical suite, where he is administered general anesthesia on a full stomach, undergoes surgery, and subsequently chokes to death on his own vomit.

Obviously, malpractice led to the death of the patient. Just as obviously, while you literally "caused" the patient to find himself in circumstances under which such malpractice (and the resulting untimely death) could occur, you are nonetheless not guilty of homicide.

In the Nelson trial, by contrast, the evidence made clear that Rosenbaum's stab wounds were "potentially fatal." The wounds, in other words, were sufficient to cause the victim's death (and did in fact cause the victim's death) in the absence of effective medical intervention.

This was not, therefore, a case in which a relatively minor injury turned into a fatal one because of a doctor's negligence. Instead, it was a case in which one man stabbed another so deeply that the second man bled to death internally from a stab wound.

The only negligence alleged against the hospital was the failure to notice for nearly an hour a four-inch wound inflicted by the defendant that kept bleeding until the patient was dead. That oversight hardly mitigates Nelson's culpability in inflicting the deep wound in the first place.

The Judge's Ruling: Excluding the Malpractice Evidence

The trial judge, Frederic Block, agreed with the prosecution and excluded evidence of civil malpractice against the hospital. He correctly deemed it irrelevant to the current proceedings.

According to the jury foreperson, however, everyone knew about the Rosenbaum family's lawsuit, from old, pre-trial news accounts, and drew from that knowledge a conclusion: "How can you sue Kings County Hospital for negligence and at the same time tell people this guy stabbed him to death?" "How could you blame two persons for the same death?"

This line of reasoning can most generously be described as misguided and less generously as stupid. When Lemrick Nelson stabbed his victim, he was not entitled to assume that a competent medical practitioner would intervene in time to prevent the victim's death. If he could make such an assumption, then it would follow that a poisoner has the right to assume that paramedics will arrive on the scene and successfully pump his victim's stomach in time to save him.

When such interventions occur, they are lucky - both for the perpetrator and for the victim - but no assailant has the right to rely on their occurrence. Nelson's culpability in causing the victim's death by stabbing him is therefore completely consistent with the hospital's alleged negligence in failing to discover the heavily bleeding wound once Rosenbaum had arrived at the hospital.

It is impossible to know what would have happened if the judge had admitted the evidence regarding medical malpractice. Perhaps it would have given the prosecution an opportunity to explain to jurors why such evidence was irrelevant to the issues presented by the criminal trial. And perhaps the jurors would have understood and accepted this explanation. Whether they would have is anyone's guess.

A Frightening Snapshot of the Jury

What we do glimpse in this case, however, is that some troubling things may be happening beneath the surface during jury trials. Unfortunately, there is no reason to think that such things are confined to the Lemrick Nelson trial.

First, particularly in high profile cases, jurors often know about evidence that no attorney was ever permitted to offer before them. They know because they watch television or read the papers, or because they speculate on the basis of who does or does not testify. And their knowledge remains unadorned by clarification and analysis by the parties.

Second, jurors believe themselves to be fit to decide whether, and to what extent, unofficial evidence is relevant to the case before them. They may argue the merits amongst themselves, but they do not necessarily ask for guidance on the question from the presiding judge.

Third, jurors may in fact be unfit to make such relevance judgments, both for lack of full information and - perhaps more importantly - for lack of the capacity to perform basic reasoning tasks without assistance.

Fourth, and finally, jurors are prepared - in spite of these shortcomings - to make such relevance judgments even after having taken an oath not to do so, but to decide the case solely on the evidence presented.

People's reactions to the Lemrick Nelson trial vary widely. Some object to the application of a federal civil rights statute to a private murder. Others believe that once the State had already tried Nelson for homicide (a trial that resulted in a widely discredited acquittal), the federal government should not have been able to place him in jeopardy again a second (or a third) time. Still others view as a gross injustice the failure of our system to punish severely the culmination of what could be described as in essence a pogrom against the Jews of Crown Heights.

Regardless of how one feels about these legitimate questions, however, perhaps the most alarming aspect of the Nelson verdict this year is this: It is logically incoherent, and it may only be the tip of the iceberg.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. She teaches Evidence and Criminal Procedure. Her prior essays in these and other areas may be found in the archive of her columns on this site.

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