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KOLOT – Today’s Jury Room: A Safe Haven for Bigotry?

By Susan K. Feigenbaum, Ph.D.

Few people may know that civil rights laws that have made it illegal to discriminate on the basis of race, color, religion, sex, age, handicap, or national origin do not apply to the jury room.

Even fewer realize that earlier this year, the U.S. Supreme Court took a first step in addressing this injustice by setting aside a verdict in a criminal case because of racially charged comments made by jury members during their deliberations (Pena-Rodriguez v. Colorado, 2017).

Finally, many readers may be surprised to learn that one of the cases cited by the U.S. Supreme Court involved this former Jewish girl from Hartford — urged on to fight jury misconduct by her childhood Hartford rabbi.

More than a decade ago, a former employee (Fleshner) threatened to sue her employer (Pepose Vision Institute), alleging that she was wrongfully terminated. As any small business owner will tell you, when someone threatens a lawsuit, the worst thing that can happen is for it to land in court, no matter its merit. In fact, the (Jewish) judge overseeing this case urged the (Jewish) attorney for the (non-Jewish) plaintiff to settle with the (Jewish) defendant and his (Jewish) attorney for what he viewed as a quite generous sum ($65,000). In response, the plaintiff’s attorney demanded hundreds of thousands of dollars. And so it happened that Fleshner v. Pepose Vision landed in a St. Louis County courtroom to be tried before a jury.

Several weeks later, the jury found in favor of the plaintiff in a 9-3 vote, awarding her $30,000 in compensatory damages and another $95,000 in punitive damages.

Here’s where it gets intriguing: Within moments of the jury’s dismissal, a jury member made a beeline to the defendant’s counsel. She introduced herself as a retired Catholic librarian who enjoyed serving on juries several times a year for both civic and educational reasons. She then blurted out the unthinkable, that she had been subjected to the most repulsive antisemitic comments during the jury’s deliberations. Among the offensive remarks: the defendant was a “rich Jew doc” and that his wife (an unpaid practice consultant) was a “rich Jew bitch” and “a penny-pinching Jew.” Subsequently, a second juror, also a Catholic, complained about the antisemitic “flavor” of the deliberations. The defendant’s “jury of his peers” had included no Jews at all; had these “righteous gentiles” not stepped forward, no one would have ever known about the heinous exchanges that took place in the jury room.

Rather incredibly, the judge – after reviewing the statements of these two jurors, interviewing the entire jury, and concluding that the alleged antisemitic rhetoric had likely taken place – ruled that he had no authority to set aside the verdict and order a new trial. [A conclusion that would eventually be labeled a “judicial error.”] The judge directed the defendant to the Appellate Court for further relief. Clearly, an appeal would entail more time, money and distress, with the best-case outcome being a new trial and lots more time, money and distress. Any rational person would lick his wounds, pay the verdict and walk away, wouldn’t he?

The defendant and his wife — in this case my husband and me — sought advice from friends, rabbis and Jewish leaders in the St. Louis community. Without exception, they all recommended that the decision should be based solely on business considerations; nothing more would be gained by appealing the jury’s misconduct. One rabbi argued that there was no Halachic law requiring someone to pursue the case. Others argued that there really wasn’t much antisemitism in the St. Louis area and that the deliberations were a “one-in-a-million” event.

Only one voice softly spoke up in favor of pursuing the appeal: an elderly Holocaust survivor who wondered out loud whether the Shoah would have happened “if more people had spoken out when they still could.”

That man was Rabbi Phillip Lazowski, rabbi emeritus of Beth Hillel Synagogue in Bloomfield.

Surprised and disappointed by this near-unanimity in advice that conflicted with my deepest instincts, I had called my childhood rabbi to seek his counsel in the matter. As a survivor himself, Rabbi Lazowski has been outspoken in his fight against genocide, whether it be against Jews, Rwandans or other oppressed peoples. Without the slightest hesitation, he forcefully expressed the need for each and every Jew to fight antisemitism wherever it rears its ugly head. He offered moral and Halachic support, as well as various avenues for funding if the need arose. In his celebrated no-nonsense style, Rabbi Lazowski shouted “that the two Catholic jurors had more brains than all of the St. Louis Jewish leaders [who were consulted] combined.”

Based largely on this conversation, my husband and I appealed the verdict on multiple grounds, including the claim of jury misconduct.

While the Appellate Court did order a new trial, it did so based on grounds other than the jury’s misconduct. It considered the offensive behavior “extremely rare” and unworthy of further comment. The Court refused to address the sacrosanct treatment of jury deliberations, heretofore guarded zealously by the Mansfield Rule (derived from the 1785 English case, Vaise v. Delaval, and codified in the U.S. Federal Rules of Evidence (606b). This rule prohibits a juror from testifying about juror deliberations and misconduct for the purpose of impeaching a verdict. How ironic: in a world of civil rights protections, the ultimate source of justice could remain a haven for bigotry and egregious discrimination.

The legal wheels that were put into motion were not quite ready to grind to a halt.

This time it was the plaintiff who sought to have the Appellate Court ruling overturned by the Missouri Supreme Court. While individual judges across the country had periodically ordered retrials (at their sole discretion) for jury misconduct, nowhere in the United States had a State Supreme Court contemplated establishing guidelines for jury conduct.

Yet, it was here in Missouri – solidly in the nation’s “red” fly-over zone – that a panel of seven state Supreme Court justices agreed unanimously that, “When a juror makes statements evincing ethnic or religious bias or prejudice during deliberations…The juror has revealed that he is not fair and impartial. Whether the statements may have had a prejudicial effect on other jurors is not necessary to determine. Such statements evincing ethnic or religious bias or prejudice deny the parties their constitutional rights to a trial by 12 fair and impartial jurors and equal protection of the law.”

It’s been seven years since that fateful decision — one of a handful that are cited in this year’s landmark U.S. Supreme Court decision in Pena-Rodriguez v. Colorado, 2017.

What have I learned from this experience?

First, that the search for justice can entail untold time, money and emotional distress (my husband still suffers PTSD from the horrendous attacks on his character), but it is the ultimate legacy that we leave our children.

Second, that our parents, community leaders and rabbis must instill in us as children the instinct to pursue justice, no matter how small a contribution we think we will make.

Finally, we must celebrate the many non-Jews who know that God requires all of us to do “the right thing” no matter the personal cost.

How far will we go to ensure that “never again” remains a reality? The leaders in our Jewish communities must follow in Rabbi Lazowski’s footsteps to encourage community members to squelch the very first stirrings of antisemitism, even if they are ‘only’ words uttered in the privacy of a jury room.

Susan K. Feigenbaum, Ph.D., daughter of Morris (z”l) and Sylvia (z”l) Feigenbaum, grew up in Hartford’s North End. Rabbi Lazowski served her family’s spiritual leader, first at Beth Shalom Synagogue and later at Beth Hillel Synagogue. She is a professor of economics at the University of Missouri-St. Louis.