Anti-Semitic Comment Warrants a Hearing

JEFFERSON CITY, Mo. (CN) - The Missouri Supreme Court sent a case back to circuit court after a juror made an anti-Semitic remark. After trial, a juror told the defendant's lawyer that another juror had called a defense witness a "Jewish witch" and a "penny-pinching Jew." But Circuit Court Judge Mark D. Seigel refused the attorney's request for a hearing on the comments.

A St. Louis County jury awarded Michelle Fleshner $30,000 in actual damages and $95,000 in punitive damages in 2007.

Fleshner claimed she was fired from Pepose Vision Institute in 2003, two days after she talked to federal investigators who were looking into Pepose's wage and overtime payment practices.

Dr. Jay Pepose, his wife Susan Feigenbaum and attorneys told jurors that the timing was a coincidence: that Fleshner was one of 30 workers to be dismissed in a move that had been planned for months.

After the trial, one juror told Pepose's lawyer that another juror had called Feigenbaum a "Jewish witch" and a "penny-pinching Jew." But Judge Mark D. Seigel refused the lawyer's request for a hearing on the comments.

In a unanimous decision, the Missouri Supreme Court sent the case back to St. Louis County for the hearing. The decision appears to contradict the U.S. courts' usual standard that jury verdicts cannot be second-guessed, even if jurors misunderstand instructions or are bullied into a decision.

"This Court finds that if a juror makes statements evincing ethnic or religious bias or prejudice during jury deliberations, the parties are deprived of their right to a fair and impartial jury and equal protection of the law," Judge Mary R. Russell wrote. "Accordingly, the trial court should have held a hearing to determine whether the alleged anti-Semitic comments were made. ... If the right to trial by jury is to mean anything, all 12 jurors must be 'fair and impartial.'"

The opinion cited three other states whose courts have made similar rulings when jurors were driven by some sort of bias.

Ben Clark, one of the attorneys who filed a friend-of-the-court brief on behalf of the Anti-Defamation League, told the St. Louis Post-Dispatch that the decision was powerful and far-reaching. But Clark said many lawyers may wonder if the decision opened a "Pandora's box."

"The trial judges and trial lawyers in this state ... are going to have to read this case very closely and understand that the normally sacrosanct nature of jury deliberations are no longer entirely that way," Clark told the Post-Dispatch.

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