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Barry Jacobson

Other Arson Exonerations
On January 31, 2022, 78-year-old Barry Jacobson was exonerated of setting fire to his eight-room vacation home in Richmond, Massachusetts more than 40 years earlier.

The Berkshire County District Attorney agreed to dismiss Jacobson’s 1983 conviction based on evidence that the foreperson of the jury had made antisemitic remarks about Jacobson, then a millionaire real estate broker from Manhattan, New York.

The exoneration, announced publicly in April 2022, culminated Jacobson’s steadfast fight to clear his name and was the result of changes in the law relating to juror misconduct as well as a report from renowned fire scientist John Lentini that was highly critical of the reliability of state police evidence preservation and analysis used to convict Jacobson. District Attorney Andrea Harrington and chief of the appeals unit Jennifer Zalnasky joined in a motion filed by Jacobson’s attorneys, Robert Cordy, of the law firm of McDermott Will & Emery, and Susan Friedman and Barry Scheck of the Innocence Project.

Two months after Jacobson was convicted on November 30, 1983, his lawyer sought a new trial based on jury misconduct. The motion was based on affidavits from an alternate juror and a deliberating juror. The alternate juror said she had overheard one of the jurors refer to Jacobson as “a rich New York Jew.” The deliberating juror quoted the woman who was elected the foreperson of the jury as saying “repeatedly” that Jacobson was “one of the New York Jews who think they can come up here and get away with anything.”

The juror said, “I think she said it several times, you know, during deliberations: ‘These Jews think we’re hicks,’ and stuff like that.”

At the time the motion was brought in 1984, the trial judge found that “no statement had been made by any of the jurors which would constitute bias and that no conduct or statement by any of the jurors improperly influenced the verdict.” That ruling was upheld on appeal.

District Attorney Harrington noted in the seven-page assent to the dismissal of the case that the trial and appellate court had followed “legal precedent in place at the time.”

“Since those determinations, the courts have evolved in their approach to ensuring that defendants’ constitutional right to a fair trial is protected,” the assent declared. Citing evolving case law, Harrington said the prosecution would “place greater weight on the impact of that bias” and the probable effect of the statements on the jury’s verdict.

Harrington said the prosecution found the jurors’ statements at the time were credible. “The Commonwealth finds it significant that these antisemitic statements made by the foreperson were not random, isolated comments, rather, they were made within the context of evidence that was presented during the trial,” the assent said. The Commonwealth cannot support a verdict where there are serious and legitimate questions as to the fairness and impartiality of the jury that rendered it.”

After he was exonerated, Jacobson, in a statement issued through the Innocence Project, said, “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.”

“This wrongful conviction has cast a painful shadow over my life,” Jacobson said. “I am thankful to God, family, and friends. The evils of antisemitism and racism in our legal system must be fought relentlessly."

Jacobson’s legal nightmare began early on the morning of January 29, 1982. A friend, building contractor Patrick Clarke, wanted to borrow Jacobson’s Jeep, which was parked in the garage of Jacobson’s vacation home on Wood Lot Road. Jacobson drove Clarke north to the home, leaving Manhattan about 3 a.m.

Both would later testify at their trial that when they got to the home, they were unable to open the garage door. It was one of the coldest days of the year–the thermometer hit zero that day. The garage door was frozen to the ground and would not raise with the remote control. They decided to drive to the home of the caretaker for the property to get keys to get into the house because Jacobson did not have his key to the front door. On the way to the caretaker’s house, Jacobson’s car slid off the icy road and became stuck in a snowbank.

Not long after, volunteer firefighters en route to the blaze passed Jacobson’s snowbound vehicle.

Soon after, the caretaker also drove past and spotted Jacobson and Clarke. The caretaker explained that he had been alerted that the fire alarm had gone off, and he was heading to the home. Jacobson and Clarke climbed in and when they arrived, flames were rushing over the top of the back of the house.

The fire was quickly extinguished. Damage was confined to three bedrooms, and state police arson investigators concluded the fire was intentionally set in a first floor bedroom closet.

On February 19, 1983, more than a year after the fire, a grand jury indicted Jacobson and Clarke on a charge of setting fire to a dwelling. In November 1983, they went to trial in Berkshire County Superior Court.

The prosecution portrayed Jacobson as a wealthy man who was fed up with the house because of expensive repairs, including the drilling of a new well because the existing well had gone dry. He had fought with the driller over the bill. The house had been burgled, requiring further repairs. The prosecution claimed that Jacobson considered the home a “white elephant,” and that he had been late in paying his property taxes, not paying until after the arson investigation was underway.

The Berkshire Eagle newspaper described Jacobson as a “New York millionaire,” and made a point of telling readers that Jacobson arrived at court in a chauffeur-driven limousine. On the stand, the newspaper said, Jacobson “admitted that he was worth almost $8 million. He was at the time the chairman of the board of the Joseph P. Day Realty Corp. of New York City, a multi-million dollar cartel.”

The prosecution’s evidence was primarily based on the testimony of state troopers Robert Scott and Richard Smith, and Francis Hankard, a chemist at the Massachusetts Department of Public Safety crime lab.

Scott testified that based on his examination of the fire, he concluded it was an arson. He based his conclusion on finding indicators, such as crazed glass, and the melting of copper pipes and aluminum door sills, that the fire burned extraordinarily hot. Such heat, Scott testified, was because an accelerant was used.

Decades later, such testimony would be debunked as not based on science. Experiments conducted by arson experts would show that such indicators were present in fires where no accelerants were involved.

Scott also testified that he took four carpet samples from the home. One of the samples was large and wet, so he put it in a plastic garbage bag. He said that the following day, he squeezed some of the liquid from that sample into a bottle.

The carpet samples were sent off to Hankard for testing. The liquid in the bottle was not tested at that time. Scott said he later gave the bottle to Smith to keep in Smith’s evidence locker.

In May 1982, after Hankard had tested the carpet samples and no accelerants were found, Scott said he took the bottle out, and unscrewed the cap. He said he tested the vapor from the bottle with a hydrocarbon detector. He said he got a strong reading for the presence of gasoline. Scott also said he put the bottle back into the evidence locker and did nothing further.

The bottle was not sent to Hankard for lab testing until January 1983, just prior to Jacobson’s and Clarke’s trial.

Hankard testified that the liquid in the bottle tested positive for the presence of gasoline.

Jacobson and Clarke denied setting the fire. Jacobson said he loved the home and had no desire to see it destroyed. Jacobson said there was a hole in the garage door, which led him and Clarke to suspect there had been a break-in. That’s when they decided to drive to the caretaker’s home.

The prosecution contended that there was no evidence of a break-in, and that the small hole in the garage door was caused by Jacobson’s automatic door opener attempting to break the grip of ice.

During closing argument, First Assistant District Attorney Daniel Ford stressed Jacobson’s wealth, but suggested he sought to recover insurance on the home, which was insured for $600,000.

“I don’t ask you to believe he burned down his house to pay the mortgage, or to put food on the table,” Ford declared. “Just because he has seven million doesn’t mean he doesn’t want more.”

On November 30, 1983, the jury convicted Jacobson and Clarke. In January 1984, after the motion for a new trial based on the jury misconduct had been denied, Jacobson was sentenced to six months in jail and fined $10,000. Clarke received a six-month suspended jail sentence, two years of probation and a $5,000 fine.

During the sentencing hearing, Jacobson’s defense attorney, Gerald Aich, recounted the devastating impact on Jacobson, emotionally and physically. He said Jacobson was “crumbling” and that media accounts had adversely affected his real estate business “almost beyond description.”

Aich asked that Jacobson not be punished more severely because of his insistence that he was innocent.

Both men’s sentences were stayed pending appeal.

On April 22, 1985, the Appeals Court of Massachusetts upheld Jacobson’s conviction. The court vacated Clarke’s conviction and ordered the case against him dismissed for lack of evidence.

By that time, prosecutor Ford had obtained the conviction of Bernard Baran on charges of sexually abusing children in a daycare center in Pittsfield, Massachusetts. Baran was exonerated in 2009 based in part on the failure of the prosecution to disclose exculpatory evidence.

Jacobson surrendered to begin serving his six-month sentence. He was released after 42 days, setting off a furor in the media. The state parole board said the decision to release Jacobson was based on a letter from Jacobson’s wife who noted that her parents were both terminally ill with cancer.

Legislators responded by proposing amendments to increase punishment for serious crimes as well as a bill requiring the parole board to notify prosecutors of impending release of prisoners well before the actual release.

Jacobson sought relief for decades. From 1987 to 2002, he filed four petitions for pardon relief. His attorney Robert Cordy noted, “At the hearings on each of those petitions, he denied his guilt even though he was repeatedly advised by members of the Board of Pardons that although he qualified in many respects for pardon relief, his failure to admit guilt disqualified him for that relief.”

In April 2021, Cordy filed a petition for post-conviction relief. The petition noted that years later, Cordy had received all of the state police investigative reports. “A careful review revealed there were no contemporary police notes, inventories or reports documenting the collection of any liquid from the carpet samples being obtained or preserved in a [bottle]. Indeed, the only report regarding the collection of the liquid squeezed from a carpet sample was written by Trooper Smith on February 9, 1983, the day before the grand jury indictment.”

“Although it has cost him dearly in his personal and professional life, now for decades,” Cordy said in the petition, “he cannot admit to what he did not do.”

Subsequently, at the request of the Innocence Project, fire science expert John Lentini provided an affidavit that stated that the poor chain of custody procedures used by the State police officers in the case rendered the key evidence of arson unreliable.

Lentini noted that it was not until a year after the fire—days before the grand jury heard the case on February 10, 1983—that the “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 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,” Lentini declared.

Scheck, in a statement issued at the time of the public announcement of Jacobson’s exoneration, said, “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.”

He added, “We applaud DA Harrington for recognizing that the antisemitism Mr. Jacobson faced 40 years ago was a factor that led to his wrongful conviction.”

– Maurice Possley

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Posting Date: 4/5/2022
Last Updated: 4/5/2022
Most Serious Crime:Arson
Additional Convictions:
Reported Crime Date:1982
Sentence:6 months
Age at the date of reported crime:38
Contributing Factors:False or Misleading Forensic Evidence
Did DNA evidence contribute to the exoneration?:No