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Verdict hangs on jury picks
Selecting the right panel is key for both sides
By Sara Burnett
Rocky Mountain News
Monday, March 19, 2007

Joe Nacchio is used to being the most important guy in a room.  But as the former Qwest CEO goes on trial in Denver today, it will be 12 strangers -- the yet-to-be-selected jury of Nacchio's peers -- who will be the most influential people at the federal courthouse, legal experts say.

Just who makes the cut in jury selection could be the major difference between a guilty or not guilty verdict.  That's particularly true because Nacchio's case focuses on the somewhat gray area of insider trading -- a less cut-and-dried crime than a murder, for example, where prosecutors might have a dead body and a trail of blood leading to their suspect.

"White-collar, difficult cases like this can have dramatically different outcomes, depending on the jury that is selected," Denver attorney Dan Recht said.  "The parties could easily try exactly the same case to two different juries and get two different outcomes.

"That's how important this is."

The big question this morning, however, may be just how much say the attorneys will have in who is seated.

Unlike trials in state court, where attorneys are allowed to question prospective jurors, federal rules leave the job up to the judge.  U.S. District Judge Edward Nottingham has rejected attorney requests to ask their own questions.

Weeks ago, attorneys agreed on a questionnaire to be mailed to prospective jurors.  Nottingham ordered that document not be made public until today, so what the jury pool was asked in advance is unknown.

Attorneys not involved in the case said the questionnaire probably asked general questions about jurors' occupations, employers and whether they have been convicted of a crime, as well as more specific questions, such as how jurors feel about corporate bigwigs and recent fraud cases.

Nottingham will likely excuse any prospective juror who lost money invested in Qwest, who worked for the company or who he believes will experience a hardship by serving for the seven weeks the trial is expected to last.

After that, attorneys on each side may excuse a limited number of prospective jurors.

That makes the process more of a jury "deselection" than a jury selection, Denver attorney William Hood said.

"The most you can hope to do is to find the people who are going to poison the well for you, try to get rid of them, and hope the people you're left with are going to be a fair and receptive audience," Hood said.

Recht also said it will be key to determine which prospective jurors are the "leaders" and which are the "followers."  Attorneys can then focus on ensuring the leaders chosen for jury service are most likely to lean their way.

"In the end, it is going to be the leaders who make the decision," Recht said.

Lawyers often can spot those people by their demeanor, Recht added.  They would be more likely to maintain eye contact with the judge or to answer questions loudly and clearly, for example.

What else might lawyers be looking for?  It's impossible to predict exactly, though years of trying cases turned up some generalizations among local attorneys.

Prosecutors might want people who work for small businesses or the government, particularly those who feel they have been mistreated by "big business" and are resentful toward it, lawyers said.  Defense attorneys may want to avoid those jurors.

None of the lawyers believed female jurors would be better for the defense, despite a theory in the legal community that women are more sympathetic to defendants in white-collar trials.

"It depends on the woman," said Denver attorney Paul Wood.

The perfect juror?

There's no surefire way to predict whether a potential juror will side with the prosecution or the defense.  But here are qualities each side may look for when jury selection begins today:

PROSECUTION

  People with long-standing ties to the community.  These tend to be older people.

  Current or former military, also known as "conformists," who are more trustful of the government.

  Accountants or people who work in the financial field who understand complex transactions or documents, particularly if the case is complicated.

  Working-class people or anyone else upset about corporate misdeeds .

  Strong personalities who might lean their way and sway "followers."

DEFENSE

  Anyone with an inherent mistrust of government or who has had a negative run-in with a government official such as a police officer.  Often a younger person.

  People who work in "big business" and who have positive feelings about their company and their superiors.

  Those who feel strongly that the Constitution requires the prosecution to prove its case beyond a reasonable doubt.

  Someone who doesn't have an ax to grind with corporate America.

  Strong personalities who might lean their way and sway "followers."

Source: Rocky Mountain News Interviews With Local Attorneys And Jury Consultants

An automatic out

  Anyone who lost money invested in Qwest, or who says he or she cannot give Joe Nacchio a fair trial, automatically will be excluded.

If you go

  Today's proceedings are open to the public, though seating will be limited.  You must have a valid identification to enter the courthouse.  Cameras, including camera phones, are not allowed.

  If a full jury is not seated today, jury selection will continue Tuesday.  Once jury selection is complete, attorneys will give their opening statements, and the prosecution will begin presenting its case.  Exact time to be determined.

  Location:  Alfred A. Arraj U.S. Courthouse is located at 901 19th St.  Jury selection will be held in Courtroom A201.

  Legal expert Scott Robinson weighs in on the case.

burnetts@RockyMountainNews.com or 303-954-5314

http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_5427487,00.html