Juror’s alleged anti-Semitic remarks prompt Mo. Supreme Court ruling


In a decision that may change how the state’s justice system views religious bias in the jury room, the Missouri Supreme Court ruled last week that a local civil case must be remanded for a hearing to determine if a juror made anti-Semitic remarks during deliberations.

“The ethnicity or religion of any party or witness unrelated to the evidence should have no bearing on the outcome of a trial,” wrote Judge Mary R. Russell in the court’s 25-page opinion handed down Feb. 9. “To allow the verdict to stand without holding a hearing to determine whether the alleged comments were made undermines public confidence in the justice system. The courts must zealously guard the right to a fair and impartial trial and equal protection under the law.”


The ruling stems from a 2004 civil suit filed by area resident Michelle Fleshner alleging wrongful termination by Pepose Vision Institute, a local eye care center. In 2007, the jury awarded the plaintiff $125,000 in damages but the award was appealed after a juror came forward to report that a fellow juror had called a witness for the defense a “Jewish witch” and a “penny-pinching Jew” during deliberations.

The circuit court refused a defense request to hold a hearing on the issue, ruling that jury deliberations were “sacrosanct” and the alleged remarks were not cause for a new trial.

Previous precedents have allowed for fellow jurors to testify about alleged juror improprieties that took place outside the jury room, such as an unauthorized investigation or any independent gathering of evidence. However, under a standard known as the Mansfield Rule, a juror’s reasoning or mental processes have generally not been admitted as reason to set aside a verdict.

The Anti-Defamation League filed an amicus brief on behalf of the appellant asking the state’s high court to order a hearing on the issue and grant a retrial should the allegations prove accurate.

“This case presents an issue of first impression in Missouri: whether a verdict should be overturned based upon expressed anti-Semitic prejudice among the jury members during deliberations,” read the ADL’s brief, which was filed pro bono by the law firm Bryan Cave. “In view of the extreme prejudice evidenced by the reported comments, there is a high potential that the verdict reflects fundamental unfairness in the judicial process.”

Karen Aroesty, regional director of the ADL office for Missouri and Southern Illinois, hailed the court’s move as a major step forward for ensuring more equitable treatment of litigants within the jury room.

“It’s a remarkable decision,” she said. “It really changes the thinking on whether jury deliberations can be impeached and opens a conversation on bias and issues of due process and fairness.”

She said the ADL wasn’t concerned about the individual facts of the case but rather the general issue of whether a fair jury had been impaneled.

“Advocacy on this type of issue is some of the most important advocacy that we can accomplish,” she said. “If the justice system is not fair and impartial, we are all in big trouble.”

Tom Weaver, an attorney with Armstrong Teasdale, the firm that represented Pepose Vision Institute before the Supreme Court, said the ruling was significant because the state courts had never addressed the issue in this manner before.

“It was a matter of convincing the court that the policy behind protecting the integrity of jury deliberations, which we acknowledge is important, has to be subordinate to the right of the parties to 12 impartial jurors free of bias and prejudice.”

Dr. Jay Pepose of Pepose Vision Institute released a statement through his office thanking his attorneys and supporters and calling the decision part of the fight for social justice.

“This ruling is a great victory for all of the people of Missouri,” the statement said. “It says that our justice system will not tolerate bigotry.”

Fleshner’s attorney Jerome Dobson, of Dobson, Goldberg, Berns & Rich, condemned the juror’s alleged anti-Semitic statements, echoing the original trial judge in calling them “reprehensible.” Still, Dobson said his office interviewed several jurors who responded that they had never heard the remarks.

“I think there is a very legitimate factual question as to whether these comments were made at all,” he said.

The plaintiff’s attorneys argued that the trial judge had made the correct decision based on the Mansfield rule.

“There would be no finality to verdicts or any end to litigation if verdicts could be set aside with such ease,” their brief said. “No verdict would be safe and allowing such inquiries would open the door to harassment of jurors by every unhappy litigant.”

Interviewed after the decision, Dobson worried that last week’s precedent might allow the minority faction on a panel to be mined by the defeated party for information on exchanges during deliberations in an attempt to change the outcome of a case after a verdict has been rendered. Civil court cases in Missouri can be decided with the concurrence of nine of 12 jurors.

“I am troubled by the implications of the ruling because it appears that what the court has said is that if one juror alleges that religious or ethnic comments of a disparaging nature were made that the trial court is required to hold a hearing,” he said. “My concern is with the potential that this will interfere with the sanctity of the jury process.”

Dobson, who is Jewish, called any potential religious bias in the jury room “very troubling.” However, he also said it’s important for jurors to be candid and express themselves freely and that those needs must be balanced in such cases.

“One of the things that has been traditionally true of the jury process is that when the jurors serve their role, fulfill their duties and render a verdict, that that is the end of their involvement,” he said. “The fact that we will be holding a hearing in which jurors are directed to come into court and reveal what was said in the jury room has disturbing implications.”