Legal experts: Churchill attorney wisely chose young jurors

Face The State Staff Report

Insiders are buzzing that David Lane, attorney for embattled former University of Colorado professor Ward Churchill, intentionally selected younger, less educated jurors who are likely to be more sympathetic toward his client.

Interviews with prospective jurors took place behind closed doors two weeks ago in Denver District Court Chief Judge Larry Naves' chambers. While criminal defendants receive a jury of 12 people and two alternates, only six people and two alternates serve as jurors in civil cases, including this one where Churchill alleges he was wrongfully terminated from the university.

Churchill, in 2005Casey A. Cass/Univ. of Colorado

After attorneys for both sides were each allowed to strike up to six prospective jurors, the resulting panel was evenly split between men and women, all appearing to be around the age of 30 or under. According to multiple sources who spoke to Face The State off the record, it appears Lane intentionally sought younger jurors who had never attended college. Specific information about jurors is private, however, due to an order issued by Naves forbidding the media and public from contacting jurors until the trial is over.

Denver defense attorney Larry Pozner said juries are hard to predict, but there are certain generalizations that can be made. “I think Ward Churchill will be better off with younger jurors who are less knowledgeable about the Holocaust and less concerned about different lifestyles,” he said. “I suspect that David [Lane] felt older jurors were likely to react less favorably to Ward Churchill’s writings and demeanor.”

Churchill claims that CU fired him in 2007 because of an essay he wrote about the 9/11 terrorist attacks, in which he proclaimed that the U.S. was attacked because of unjust foreign policy and called the victims working in the World Trade Center “little Eichmanns,” a reference to a high ranking Nazi official. In a subsequent investigation by university officials, the university maintained that Churchill had plagiarized the work of other academics, in addition to a host of other related academic misconduct.

According to Martin Katz, an associate professor at the University of Denver's Sturm College of Law, Lane is skilled at reading people, which he said comes in handy during jury selection. If the jury ended up “looking a certain way,” Katz said it was because one of the attorneys probably intended it to be like that. “Chances are it’s not random if all jurors are members of the same demographic,” he said. “Jury selection is definitely considered an art, not a science. All trial lawyers have their theories about what they’re looking for."

With members of a jury panel coming from similar backgrounds, there can be less tension or more group agreement. This, according to the multiple attorneys who spoke with Face The State, could benefit Churchill. In a civil case, the standard of proof required for a party to prevail is by a preponderance of the evidence, commonly referred to as "50 percent plus a feather," a much lower standard than in criminal cases, where the prosecution must prove the defendant's guilt beyond a reasonable doubt.

In the end, however, Pozner says jury selection matters less than the attorney’s ability to present the facts in such a way that any juror paying attention can understand them. While CU is trying to convince the jury Churchill as an academic fraud, Lane is trying to portray him as the victim of a witch hunt.

“This case is about academic freedom and plagiarism and timing and whether the investigation was a witch hunt caused by an unfortunate article,” Pozner said.

Dave Williams, a Denver trial attorney, said jury selection is usually a high priority for lawyers during trial preparations. “But once you’re in the courtroom anything can happen,” he said. “O.J. walked.”