Venue change request renewed in UT kidnapping case

AP News
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Posted: Oct 14, 2010 2:06 PM
Venue change request renewed in UT kidnapping case

Defense attorneys for a former street preacher facing federal charges in the 2002 abduction of Elizabeth Smart are renewing efforts to move the trial out of Utah.

In court papers filed Tuesday, attorneys for Brian David Mitchell said responses to a pretrial jury questionnaire found that 70 percent of respondents already believe he is guilty.

The finding is "a bias this Court cannot overlook," wrote Parker Douglas, one of Mitchell's federal public defenders.

Trial is set to begin Nov. 1.

U.S. District Judge Dale Kimball previously ruled against a change of venue request but said he could reconsider the decision based on the responses to questionnaires.

Federal prosecutors have said there is no reason to move the trial.

The Salt Lake City court sent the 42-page questionnaire to about 600 potential jurors earlier this month. Court papers say that roughly 500 individuals filled out the queries. After hardship exclusions, clerks turned over 330 questionnaires to defense attorneys and federal prosecutors for review.

After excluding some responses, defense attorneys said their "conservative" analysis found that 99 percent of the people surveyed had seen media coverage of the case. Of those, about 70 percent had "absolutely concluded" Mitchell's guilt or said they would not "in any case or particularly this case" consent to verdict of not guilty by reason of insanity.

Defense attorneys have said they will argue that Mitchell is mentally ill and can't be held responsible for Smart's abduction. Mitchell was deemed competent for trial in federal court but was twice deemed incompetent in a parallel state case after being diagnosed with a delusional disorder.

The questionnaire findings closely mirror polling data collected by a defense expert in April. That survey of 300 Utahans found 92 percent of respondents believed Mitchell was either definitely or probably guilty of kidnapping Smart. The figure was about 34 percent higher than residents questioned in Colorado and Kansas _ both states where the trial could be moved.

Federal prosecutors continue to argue against a change of venue, arguing in court papers that despite the high percentage of media exposure to the case, most respondents _ 92 percent _ were skeptical about the accuracy of that information. Sixty-nine percent said they don't rely on news reports alone in forming their opinions.

Less than one-fourth of questionnaire responses "demonstrated a strong negative feeling" against Mitchell or expressed an inability to be impartial, prosecutors wrote. The U.S. attorney's office expects to dismiss about one-quarter of the 330 potential jurors based on responses to in-court questions at the start of the trial.

"With nearly three-fourths of the potential jury pool remaining, both sides will have ample opportunity to raise additional challenges for cause ... and seat a fair and unbiased jury," prosecutors wrote.

The Smart abduction drew national headlines _ both when thousands of Utahans turned out to search for the missing blue-eyed girl and when she was recovered in March 2003 walking a suburban street with Mitchell and his now-estranged wife, Wanda Eileen Barzee.

Barzee pleaded guilty last November to kidnapping and unlawful transportation of a minor. She was sentenced to 15 years in federal prison and could testify against Mitchell if his case goes to trial.

Now 22, Smart testified last year that Mitchell took her to a mountainside camp where he raped her.