The Conviction of Barry Jacobson Is Vacated Due to Antisemitism in Trial

(April 5, 2022 — Berkshire County, Massachusetts) District Attorney Andrea Harrington today agreed that Barry Jacobson was wrongfully convicted of arson in a biased 1983 trial, during which jurors made antisemitic remarks about Mr. Jacobson, who is Jewish. Accordingly, his conviction was vacated and the case against him was dismissed. 

District Attorney Harrington said: “Prosecutors have a legal, ethical and moral obligation to ensure that jury verdicts are rendered free from bias. The credible evidence of antisemitic juror statements undermine the fairness of this verdict and denied Mr. Jacobson his Sixth Amendment right to an impartial jury trial. Prosecutors have the responsibility to implement policies to ensure fair convictions and to rectify past injustice. I am proud to stand with the Anti-Defamation League and the Innocence Project because a conviction that is tainted by bias erodes the integrity of our system of justice.”

“Nearly 40 years ago, I was wrongfully convicted for a crime I didn’t commit. Antisemitism 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,” said Barry Jacobson. “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.”

Mr. Jacobson was convicted of arson in 1983 and sentenced to six months in prison and a $10,000 fine, after a deck on his family’s vacation home in Richmond, Mass. was set on fire. He spent more than a month in prison for a crime he didn’t commit, based on unreliable arson evidence and a baseless claim that he was looking to make insurance money on the home — although no claim was ever filed. 

Following the jury verdict, evidence of antisemitic bias on the jury began to surface. Sworn statements from a sitting juror and an alternate juror were filed with the court. In her sworn statement, the sitting juror advised the court that, “From the beginning of our deliberations, the forelady of the jury …. 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.’”

The alternate juror also observed: “[W]hen the jury first went out to deliberate they had only been in there, I would say less than five minutes, when I overheard one of the ladies say to the other, ‘Well, this is not going to take very long. We should finish this real quick because you know he’s guilty.’ And says, ‘All those rich, New York Jews come up here and think they can do anything and get away with it.’”

Additionally, renowned fire science expert John Lentini, a leading expert in the field of arson investigation, provided an affidavit that the chain of custody procedures used by the state police officers in the case rendered the key evidence of arson unreliable. The investigating state police officers testified at trial that they squeezed liquid into a vial from one of the carpet samples they had cut out and believed to be the point of origin of the fire. However, the carpet samples that were obtained by the troopers at the scene on Jan. 29, 1982, from the alleged point of origin, were promptly brought to the state laboratory and tested. No flammable residue, gasoline or otherwise, was detected on any of the samples. It wasn’t until a year after the fire, days before the grand jury heard the case on Feb. 10, 1983, that this “unsealed” vial was “found” in one of the trooper’s lockers and brought to the state laboratory for testing, where it tested positive for gasoline residue. In his affidavit, Dr. Lentini said, “In my 47 years of practicing in the forensic sciences, I have seen many errors, but none so egregious as this with respect to the mishandling of the evidence and the failure to properly document the chain of custody.”

“As reports of antisemitism increase around the country, Mr. Jacobson’s case reminds us that the criminal legal system has never been immune from its pernicious and insidious effects,” said Barry Scheck, Mr. Jacobson’s counsel and Innocence Project co-founder. “We applaud D.A. Harrington for recognizing that the antisemitism Mr. Jacobson faced 40 years ago was a factor that led to his wrongful conviction.”

Rising Cases of Antisemitism

According to the Anti-Defamation League (ADL), antisemitic incidents are at historic highs across the country. ADL’s most recent Audit of Antisemitic Incidents in the United States recorded more than 2,000 antisemitic acts of assault, vandalism, and harassment in 2020. This was the third-highest year on record since ADL began tracking in 1979.

“The antisemitic bias that was brazenly displayed in this case defies a basic principle of our legal system that the ‘law punishes people for what they do, not who they are.’ While this injustice occurred in the 1980s, antisemitism continues to this day, both hidden and in plain view. Every day we witness antisemitism impacting daily life, in the public square, workplace, college campuses, youth sports, and our criminal justice system is no exception,” said Robert Trestan, regional director of ADL New England, which filed an amicus brief regarding antisemitic juror bias. “In the 40 years since his wrongful conviction, Barry Jacobson worked tirelessly to clear his name and expose the antisemitism that contributed to this miscarriage of justice. This case is a vivid reminder of the danger posed by antisemitism and the need for greater education efforts at all levels.” 

Fighting for Justice

From 1987 to 2002, Mr. Jacobson filed four petitions for pardon relief. At the hearings on each one of these petitions, Mr. Jacobson maintained his innocence even though he was repeatedly advised by members of the Board of Pardons that although he qualified for pardon relief, his failure to admit guilt disqualified him for relief.

In January 2022, District Attorney Harrington determined that the overwhelming evidence of antisemitism in jury deliberations so severely undermined the trial that justice required that the Commonwealth assent to Jacobson’s motion for a new trial and subsequently dismiss the indictment, ending any further prosecution of the case.

“This ends a decades-long fight for Mr. Jacobson, who has always maintained his innocence,” said Robert Cordy, of McDermott Will & Emery LLP, co-counsel for Mr. Jacobson, whom he began representing in the 1990s. “It is unacceptable for racial and ethnic bias to taint jury selection, and juries should be educated about both explicit and implicit bias.”

The Innocence Project (Susan Friedman and Barry Scheck) with co-counsel McDermott Will & Emery LLP (Robert Cordy) represent Mr. Jacobson.