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Citing anti-Semitism among jurors, Berkshire arson conviction vacated after almost 40 years

A Berkshire County arson conviction from 1983 has been vacated after evidence of anti-Semitism among jurors came to light.

In winter 1982, a fire at Barry Jacobson’s vacation home in Richmond, Massachusetts plunged the Manhattan real estate broker’s life into a nightmare. A subsequent trial led to Jacobson being convicted of arson and spending around 40 days in prison.

Key testimony from state troopers and chemists was later debunked as unscientific.

In addition to his humiliation in court, local media like the Berkshire Eagle described Jacobson as a “New York millionaire” at the head of “a multi-million dollar cartel.”

“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 attorney and former Associate Justice of the Massachusetts Supreme Judicial Court Robert 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.”

At a virtual press conference Tuesday, Cordy, representatives of the Anti-Defamation League, Berkshire DA Andrea Harrington, and Innocence Project co-founder Barry Scheck announced that Jacobson’s conviction had been officially vacated as of January.

“We immediately jumped into this case because we saw that there was unreliable arson science involved, but more to the point, when Bob Cordy told us that Barry had refused to admit guilt," said Scheck. "And that's the reason, probably, that he didn't get clemency relief over all these years. That, I can tell you from experience, is one of the real, telltale signs that we have found over the years where we've had so many clients that would not admit guilt in order 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.”

Harrington confirmed that through the testimony of an alternate juror from the trial, evidence of anti-Semitism directed toward Jacobson was pervasive among those chosen to determine his fate.

“There was actually very competent evidence that were stated during jury deliberations was along the lines of, ‘these rich New York Jews think they can come here and get away with anything,’" she said. "And it was along those lines, and there was credible evidence that that these types of statements were made at numerous times throughout the jury deliberations.”

The DA was raised in Richmond, where she lives and is bringing up her own family today.

“That made a big impression on me, because growing up here in Berkshire County, I'm very familiar with the way that anti-Semitism is manifested here in the community," said Harrington. "And generally speaking, when somebody says, ‘Oh, those New Yorkers,’ you know, it's shorthand. We know what that means here in Berkshire County.”

Harrington said she’s making internal changes in response to the vacated conviction.

“We have implemented a policy to end the asking race-based jury questions during the jury selection process," she said. "For example, it was standard practice to ask jurors if they believe that the criminal justice system was unfair to members of minority groups. We no longer ask these questions. We hope that this policy will help to ensure diverse and impartial juries that are reflective of the community that we serve and that we will work to build trust in our system of justice.”

Scheck says the Jacobson conviction not only sheds a light on the degree to which jury bias can shape criminal justice outcomes, but also pervasive malfeasance in how the state pursues prosecutions.

“The key evidence in the case was a claim that a fire had been started on the porch of the house on a carpet," he said. "And what's amazing about this case is that that carpet, when it was sent to the crime lab and a chemical test was done, there was no evidence of gasoline or an accelerant being used. The way that the prosecution wound up proceeding is that at the very last minute before the grand jury’s term ended, the officers came up with a vial of gasoline that they claimed had been squeezed out of the carpet and put into this vial. And there was no record whatsoever them having done it, no chain of custody, nothing like that.”

Cordy says that Jacobson, now 78 and living in New York, is not currently considering civil action to redress his treatment at the hands of the state.

“He is dealing with this as best he can," said Cordy. "Obviously, he's unhappy that some people seem to have taken pride and pleasure in his suffering and his conviction.”

Josh Landes has been WAMC's Berkshire Bureau Chief since February 2018, following stints at WBGO Newark and WFMU East Orange. A passionate advocate for Western Massachusetts, Landes was raised in Pittsfield and attended Hampshire College in Amherst, receiving his bachelor's in Ethnomusicology and Radio Production. His free time is spent with his cat Harry, experimental electronic music, and exploring the woods.
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