Brian David Mitchell's attorneys want insanity question added

SALT LAKE CITY — Attorneys for Brian David Mitchell, who's accused of kidnapping Elizabeth Smart in 2002, want potential jurors to be asked what they believe happens when a person is found not guilty by reason of insanity.

A motion filed Monday in federal court asks U.S. District Judge Dale Kimball to add the question to the questionnaires being mailed out to prospective jurors in Mitchell's federal trial, scheduled to begin Nov. 1.

Prosecutors have indicated they will object to that question or any similar question, according to court documents.

But defense attorneys believe it is appropriate because it will show whether jurors have a misunderstanding about what it means to be found not guilty by reason of insanity. Specifically, Mitchell's attorneys are concerned that if jurors believe Mitchell will be set free, they may be biased into not reaching that verdict.

"… It may cause the jurors' concern in deliberations to focus on the danger to the community that may result from the verdict, instead of the appropriate legal outcome," court documents stated.

The defense called it a "false assumption" that such a verdict would result "in the defendant's immediate release in the community."

"In order to select an impartial jury, jurors must be actively questioned on this topic," the defense wrote in court documents.

The juror questionnaires, expected to be mailed out soon, will include about 80 questions, according to court documents. Earlier this month, Kimball ruled Mitchell's trial would not be moved out of Utah, but he would reconsider the issue if the results of the questionnaires suggested it would be difficult to seat an impartial jury.

In their motion Monday, defense attorneys included a sampling of comments collected for a defense-team commissioned survey, which found 92 percent of Utahns believed Mitchell was probably or definitely guilty.

The comments from respondents included several that said Mitchell should go to jail and others that said he deserved the death penalty.

Kimball, however, when issuing his decision on the defense's change of venue motion, said he had deep concerns about the survey, noting that the types of questions asked, the leading nature of the questions, the methodology used in the survey and the lack of any questions regarding Mitchell's expected insanity defense made it essentially "useless."