PITTSFIELD, Mass. — A New York man who spent more than 40 years trying to clear his name has had his arson conviction thrown out because of jury bias. 

 

Barry Jacobson, of White Plains at the time, had been accused of torching his Richmond vacation home in 1982 for insurance money and found guilty by a jury in Superior Court. He was sentenced to six months in prison and a $10,000 fine.

 

But two jurors later came forward to state that anti-Semitic statements had been made repeatedly by the foreperson and others during deliberations. 

 

The judge denied a motion for a new trial based on the remarks but, two years ago, Jacobson's counsel asked the district attorney for a full review and filed a motion for post-conviction release. The conviction was dismissed on Jan. 31.

 

"Upon review of the court record, I was struck by the credibility of those jurors who came forward to record these anti-Semitic statements. And it was clear to me that this verdict was tainted by stereotypes and bias and that there was absolutely no way that my office could ethically or morally defend Mr. Jacobson's conviction," said District Attorney Andrea Harrington during a Zoom press conference on Tuesday. 

 

"As a prosecutor, I have a legal ethical and moral obligation to ensure that jury verdicts are rendered free from bias. ... The right to an impartial jury trial is fundamental to our system of justice and to the public's faith in the fairness of the criminal legal system."

 

Harrington was joined by Jacobson's counsels, Robert Cordy of McDermott Will & Emery LLP and Barry Scheck of the Innocence Project, and Robert Trestan, New England regional director of the Anti-Defamation League. Jacobson was not in attendance. 

 

"I began representing Mr. Jacobson about 26 years ago, and have witnessed the suffering and anxiety he has long endured as a result of this wrongful conviction," said Cordy. "He is a man who has spent his life helping other people. A pardon was within his grasp time and again, in the 1990s, in light of all the contributions he had made to his community over the years, but only if he would confess to a crime that he did not commit. And he could not bring himself to do that."

 

Two months after the trial, one of the jurors contacted Jacobson's attorney and told him that the foreperson had "repeatedly made references to Mr. Jacobson as being 'one of those New York Jews who think they can come up here and get away with anything.' Other similar anti-Semitic remarks were made by her and others throughout the deliberations."

 

Her sworn statement was confirmed by alternate juror, who said she overheard "one of those ladies say to the other, 'Well this is not going to take very long. ... All those rich, New York Jews come up here and think they can do anything and get away with it.'"

 

Jacobson appealed for a new trial, which was denied and upheld by the Appellate Court, which backed the original judge, who found no statements constituting bias. The foreperson denied she had made any prejudicial remark and other jurors denied, couldn't remember or weren't sure.   

 

"Every person charged with a crime is entitled to have all of the jurors be impartial, and without prejudice, not a majority of them, or most of them, all of them. And so when one or two jurors are clearly in the wrong category. That's enough. And that's important," said Cordy. 

 

Trestan said the anti-Semitic bias was "brazenly displayed in this case" and defies the American legal system's basic principle of judging people on what they do, not who they are. 

 

"While this injustice occurred in the 1980s, we know that anti-Semitism continues to this day, both hidden and in plain view," he said. "In the 40 years since his wrongful conviction, Barry Jacobson has worked tirelessly to clear his name and expose the anti-Semitism that contributed to this merit this miscarriage of justice. The case remains a vivid reminder of the danger posed by anti-Semitism and the need for greater education efforts at all levels."

 

Scheck said one of the "telltale signs" he's found over the years and many clients of the Innocence Project is the refusal to admit guilt to get out on parole. 

 

"You know, when that happens, when you hear people taking those kinds of stands, it's time to pay attention," he said. 

 

There were other aspects of the trial that also didn't hold up, Scheck said, including what he described as "junk science" related to arson investigations at the time. One questionable bit of evidence was an unsealed vial with gasoline residue that purportedly was squeezed out of the rug near where the fire started; the vial disappeared for a time before being found for the grand jury a year later. 

 

Harrington said her office had received the new motion during an internal review of its responsibility to eliminate racism and bias in prosecutions. 

 

"We have implemented a policy to end the asking of race-based jury questions during the jury selection process," she said. "We have seen a shocking rise of hateful incidents over recent years targeting Jewish, Black and Latino communities here in Berkshire County and the need to stand against anti-Semitism is every bit as relevant today as it was in 1983."

 

Cordy said Jacobson had had to work through a lot of trauma — his business relationships in real estate were disrupted and financing for projects fell through — "he's a very strong person, a very committed person." 

 

Jacobson did not wish to participate in the press conference but provided a statement through the ADL. 

 

"Nearly 40 years ago I was wrongfully convicted for a crime I didn't commit. Anti-Semitism infected the prosecution and the jury deliberations. I am grateful that District Attorney Andrea Harrington recognized this injustice and helped my lawyer Bob Cordy, the Anti-Defamation League, and the Innocence Project finally clear my name," he said. "This wrongful conviction has cast a painful shadow over my life. I am thankful to God, family, and friends. The evils of antisemitism and racism in our legal system must be fought relentlessly."