However, the Justice Department is still considering whether to ask for another hearing before the same three-judge panel that threw out the convictions, U.S. Attorney Alan Vinegrad said in court papers.
The government’s position recognizes that “there are very few cases heard” by the entire 13-judge appeals panel, said Trevor Headley, an attorney for defendant Lemrick Nelson. “The chances that this one would have been heard were minuscule.”
Headley predicted the case was headed for a retrial. “There is nothing new that can be presented to the three-judge panel that hasn’t been presented before,” he said.
Prosecutors also asked the court to extend a March 8 deadline for filing the petition — already extended twice — to March 29. Stephen Young, a spokesman for the court, said the extension was granted.
The victim’s brother, Norman Rosenbaum, had personally lobbied the solicitor general of the United States, Theodore B. Olson, to demand a review by the full court. Family spokesman Isaac Abraham said Rosenbaum was troubled by the decision against it.
“We’re very disappointed because it’s a simple appeals process,” Abraham said. “We hope the Justice Department is not just throwing up its hands and saying ‘Let’s have a retrial.”‘
A call to Vinegrad was not immediately returned.
The racially charged case dates to Aug. 19, 1991, when a black 7-year-old boy, Gavin Cato, was struck and killed by a Jewish driver from the ultra-religious Lubavitch community headquartered in the Crown Heights neighborhood of Brooklyn.
Hours later, a gang of blacks shouting “Get the Jew!” chased down and fatally stabbed the 29-year-old Rosenbaum. The violence over the next two days included 188 injured and angry crowds breaking windows.
Nelson, then 16, was charged with killing Rosenbaum. A state jury acquitted him, but he was convicted in a federal trial with violating Rosenbaum’s civil rights. He was sentenced to 19 1/2 years in prison.
Charles Price, who was videotaped provoking the rioters, was sentenced to 21 years and 10 months. A grand jury declined to charge the driver, Yosef Lifsh.
In January, the appeals court found the trial judge manipulated the racial makeup of the jury for Nelson, 27, and Price, 47, and overturned their 1997 convictions.
In the March 8 court papers, Vinegrad wrote that Olson “will not seek an en banc review” — meaning a hearing before the full 2nd Circuit Court of Appeals. However, “no determination has been made as to whether the government will file a petition for rehearing” by the three-judge panel.