If Brooklyn U.S. Attorney Alan Vinegrad appeals yesterday’s Crown Heights decision to the Supreme Court, he’ll risk opening the door to another issue that could scuttle the case completely, sources argued.
That’s because a prosecutor’s appeal would also allow the Supremes to examine a tricky legal issue the Court of Appeals panel has already dismissed, sources said.
Vinegrad said he was weighing whether to appeal the case higher or simply proceed with a new trial.
“Both sides are trying to decide what to do,” said a source close to the defense case. The Court of Appeals ruling, while ordering a retrial, also threw out a key defense claim that the charges should never have been brought because prosecutors incorrectly used the federal Interstate Commerce Clause to charge Lemrick Nelson Jr. and Charles Price.
At the trial, prosecutors argued Rosenbaum’s killing came because the angry mob wanted to prevent him from using the public street – and therefore interfered with interstate commerce.
Some legal experts believe that a few key recent decisions show the nation’s highest judges are looking to cut back on the vast reach of the Commerce clause and they might therefore throw the entire Nelson/Price case out.
“There’s a school of thought that says the Supreme Court would be more friendly to the defense than the prosecutors on this particular issue,” said a source.