Anti-Semitic Remarks Cause Missouri's Highest Court to Overturn Verdict

A juror’s anti-Semitic comments about a defense witness in a wrongful termination trial has led Missouri’s highest court to take the unusual step of overturning a verdict due to normally secret conversations held during jury deliberations.

The Supreme Court of Missouri held that the juror’s remarks about the witness deprived the defendant of the constitutional right to a fair trial. The unanimous decision was issued February 9. (Michelle Fleshner v Pepose Vision Institute, SC90032, Missouri Supreme Court). Robert Kaiser, a partner at Armstrong Teasdale LLP, successfully argued the case before the Missouri Supreme Court on behalf of the defendant, Pepose Vision Institute, a St. Louis area vision treatment center.

The ruling is unusual because of the almost universal rule, followed in Missouri as well as most other states, that a jury verdict cannot be thrown out because a juror alleged that another juror’s misconduct affected deliberations.

But the Missouri Supreme Court said that while jurors are encouraged to voice their common knowledge and beliefs during deliberations, this does not include ethnic or religious bias or prejudice. It cited other jurisdictions that reached similar conclusions including the Supreme Courts of Wisconsin and Florida and the Texas Court of Civil Appeals.

“This Court finds that if a juror makes statement 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,” the Missouri court said in sending the case back for a new trial.

Other jurisdictions grappling with the same issues may now look to the Missouri ruling for guidance, said Kaiser.

“This problem isn’t peculiar to Missouri,” he said. “Bigotry is an issue that we all wish was a thing of the past. But there are times it rears its ugly head and we have to make a decision as a society as to how we’ll deal with that. We’ve cleared a legal path in Missouri for other courts to recognize that this is the socially responsible way to view this behavior.”

The Anti-Defamation League praised the Missouri Supreme Court's decision, calling it a ground-breaking case involving alleged juror bias. The ADL had filed a friend of the court (amicus curiae) brief in the case. http://www.adl.org/PresRele/CvlRt_32/5704_32.htm

The case stems from a lawsuit filed against Pepose Vision by Michelle Fleshner, who alleged she was fired after she spoke with a U.S. Department of Labor investigator about the company’s overtime practices. Pepose denied any wrongdoing, but the jury found in favor of Fleshner.

After the verdict was handed up, two jurors told defense attorneys that a fellow juror had made anti-Semitic remarks during deliberations about one of the witnesses, the wife of Pepose’s owner.

The trial judge denied the defendant’s request for a new trial stating that jury deliberations were sacrosanct and the remarks did not constitute the type of misconduct that would cause a verdict to be overturned.

Pepose’s attorneys appealed and the Missouri Supreme Court overturned the verdict saying the trial court should have held an evidentiary hearing to determine whether the alleged misconduct could be proven.