PROVO — Utah County residents who pay tithing to The Church of Jesus Christ of Latter-day Saints are too biased to serve on a jury in any trial where Brigham Young University is the alleged victim, an attorney argued Monday in 4th District Court.

Salt Lake attorney Larry Keller made that argument as part of a motion to change the venue of a currently unscheduled trial for John Shepard Davis. Keller wants the trail moved from Utah County, where nearly 90 percent of residents are LDS, to either Salt Lake (64 percent LDS) or Summit County (36 percent).

Davis, a church member, is charged with seven counts of theft for allegedly embezzling $306,000 from BYU.

Davis worked at BYU for 10 years and was in student financial services when placed on administrative leave May 23, 2001. He was fired on July 19, 2001.

Keller argued in November that Utah County was too LDS to provide Davis a fair trial and asked for Monday's hearing to present additional reasoning.

"The danger is that an LDS person is likely to conclude that they serve to lose some small amount (of donated tithing)," Keller said of a case where BYU is the victim. He also said LDS jurors would also look at a defendant in such a case and think, "Here is a person who is alleged to have betrayed his religion and his church."

Keller told 4th District Judge Steven Hansen that $7,500 in tithing funds is spent on each BYU student each year, citing a 1995 address by Elder Boyd K. Packer, acting president of the LDS Church's Quorum of the Twelve.

If that figure still holds true, the LDS Church annually spends about $225 million in tithing funds to educate BYU's 30,000 students.

Since a significant amount of tithing is directed to BYU, Keller said tithepayers share an association with the alleged victim in the Davis case.

Utah County Deputy Attorney David Wayment said Keller's arguments are unconstitutional.

"He wants to keep people off the jury for nothing other than grounds that they are tithepaying members of the LDS Church," Wayment said. "The Utah Constitution prohibits that. He's setting up a religious test. That would be a repugnant result that would be inimicable to the cause of justice."

Keller could find no evidence that his argument had been raised before for a Utah County case involving BYU.

Wayment said that is an important point.

"If there's a danger, it's that I wouldn't want the court to set a precedent where every time BYU is the victim of a crime we have to go out of the county to hold a trial."

Hansen said he hoped to issue a ruling soon.

Judge James Taylor found sufficient evidence to bind Davis over for trial after a preliminary hearing in November 2002. An April 2003 trial date was postponed so the court could consider defense motions.

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E-mail: twalch@desnews.com