Case is reminder anti-Semitism persists


There was a group of teenage classmates in the audience of a recent performance of “The Diary of Anne Frank” that I attended at the Repertory Theatre of St. Louis. I couldn’t help but wonder what they made of the play. Did they think of it as some horrible event that happened long before they were born, in a different country under a different government? Did they feel safe, grateful to be living now and in a nation that doesn’t tolerate hate crimes and bigotry? Did they dismiss the Holocaust as something that couldn’t happen again?

Although I’ve read the book numerous times and seen other productions of the play, this time it was particularly unnerving. The day before the Rep’s production began last month, the Missouri Supreme Court issued a landmark decision overturning a verdict in an employment case in which two St. Louis jurors allegedly uttered crude anti-Semitic remarks about a defense witness during deliberations. I was shocked when I learned the facts through my job at Armstrong Teasdale LLP, the law firm that won the case before the court. The ugly language is proof that not only is anti-Semitism still well and alive in our nation’s heartland, but there is no shame in expressing it.


The defendant in the case was Pepose Vision Institute, owned by Dr. Jay Pepose, who in addition to owning the vision institute is a well-known and respected professor of clinical ophthalmology at Washington University. The alleged target of the nasty slurs was his wife Susan Feigenbaum, an award winning economics professor at the University of Missouri-St. Louis. Feigenbaum said that until this incident happened about five years ago she na ïvely believed that rampant anti-Semitism was a thing of the past in this country.

I think I was a bit na ïve as well. When family reasons led me to move to St. Louis from New York City about five years ago I found my new home to be a warm and welcoming place. After all, people actually spoke to each other in elevators, the manager of my apartment building showed up with groceries for me the day I moved in and the Trader Joe’s clerks seemed endlessly cheerful.

Yes, it was a totally different environment from Manhattan, where I had been a reporter cover ing federal court including a string of terrorism cases that began with the first bombing of the World Trade Center in 1993. In case after case, I heard defendants, including Sheik Omar Abdul Rahman and members of al Qaeda, spew repugnant and threatening anti-American and anti-Semitic remarks. The worst, of course, was Sept. 11, 2001, when all that hate and bigotry led to the attacks on America, killing some 3,000 innocent people and destroying the twin towers six blocks from my courthouse.

How could that have happened? How could the Holocaust have happened? Did it all start with one ugly slur? The Missouri Supreme Court’s ruling on February 9, 2010 marked the first time it had considered whether a trial court could hear testimony about juror statements made during deliberations evincing ethnic or religious bias or prejudice.

Our state courts — like those in many other jurisdictions — follow what’s know as the Mansfield Rule, an 18th Century British law that prohibits questioning a verdict based on a juror’s sworn testimony about another juror’s misconduct. The rule is aimed at protecting the private nature of jury deliberations.

In the Pepose case, two jurors came forward to report the anti-Semitic slurs. However, the trial judge, following the Mansfield Rule, refused to hold an evidentiary hearing to determine if the jury had been fair and impartial.

The case was appealed and our state’s highest court, in its unanimous decision, took the stand that there is no place in deliberations for negative stereotyping by racially or religiously biased jurors.

“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 court said. “The courts must zealously guard the right to a fair and impartial trial and equal protection under the law.”

Let’s hope other courts listen. And let’s hope there are other brave folks like those concerned jurors who won’t let ugly slurs slide. Perhaps if enough people refused to just go along, shook their head “no” and firmly said “this is wrong,” then “The Diary of Anne Frank” would really become history instead of a timely warning about what could happen today.

Gail Appleson is a writer for Armstrong Teasdale LLP and freelancer who lives in St. Louis.

EDITOR’S NOTE: This week the Jewish Light kicks off an intermittent series called “Dor to Dor,” which looks at various aspects of “grown-up” life and generational connections (“dor” means generation in Hebrew) through the lens of Jewish writers living in the St. Louis area. Some of these columns may deal directly with Jewish issues, other may not, but we hope you’ll find each one informative or entertaining or, better yet, both.

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