A juror's vocal prejudice against Bosnians should be enough for the North Dakota Supreme Court to order a new trial for an immigrant who was convicted of taking part in a fairgrounds brawl, his lawyer said.

Mevludin Hidanovic, 29, is serving 18 months at the James River Correctional Center for a felony conviction for engaging in a riot while armed.

Prosecutors say Hidanovic had a baseball bat during the fight. Police reports say between 20 and 30 people were involved in the June 2006 incident at the Red River Valley Fairgrounds. Hidanovic has maintained he was not involved in the brawl and did not have a bat.

After Hidanovic was sentenced, a juror in the case, Becky Lynn Rettig, who worked at a Fargo bar and restaurant, filed an affidavit saying she had told fellow jurors that Bosnians "stole from my business and … lied to me regarding the theft and their conduct."

"If the court were to say that a juror going into a jury room can sit in deliberation and say … I'm not going to vote for 'not guilty' based on the fact that the person is a Bosnian, we're sending an absolutely terrible message to the public," defense David Chapman said during arguments before the state Supreme Court on Thursday.

If a juror, during deliberations, declares his or her bias against a defendant, that defendant should be entitled to a new trial even if the verdict is not influenced by the juror's prejudice, Chapman said.

Mark Boening, an assistant Cass County state's attorney, said the verdict should stand, because the juror's anti-Bosnian comments would not have influenced an average jury to convict Hidanovic. Other jurors said their verdict was not affected by the remarks, Boening said.

"These statements would not have affected the deliberations of a hypothetical, average juror," Boening said. "An average juror takes his or her duties seriously," he said.

"I used my own experiences with ethnic groups, specifically Bosnians and/or Gypsies, to influence the jury," Rettig's sworn statement said. "Even though I had never met Mr. Hidanovic, or any of the witnesses … (their) race was discussed in a negative way."

In the first poll of jurors after they began their deliberations, Rettig said, she was the only person to say Hidanovic was guilty.

"Over the next five hours, I used my influence to eventually convince the rest of the jurors to vote in favor of guilty," her statement said. "I now believe that I was wrong."

Chapman said Rettig's statements showed Hidanovic deserved another trial. Jurors who say they "don't like these people because they are Bosnian, or because they are African-American, or because they speak funny" should not be handing up verdicts, he said.

"If that's what's going to be deciding the case, then, essentially … you might as well flip a coin," he said. "That one juror hasn't bothered doing their job."

Boening said Rettig's statements alone should not be the basis of giving Hidanovic a new trial.

"It was kind of like buyer's remorse," he said.