Jury pool in Elizabeth Smart kidnapping trial narrowed to 32

Final 12 jurors plus 2 alternates will be chosen Thursday, when opening arguments will also begin

Published: Wednesday, Nov. 3 2010 8:54 p.m. MDT

SALT LAKE CITY — Of the 330 prospective jurors who filled out questionnaires, 32 have now been retained to possibly decide the fate of the man charged with kidnapping Elizabeth Smart.

U.S. District Judge Dale Kimball and prosecutors believe the next step is to seat 12 fair and impartial jury members and two alternates out of that field of 32.

Mitchell's lawyers, however, believe the next step is to once again ask to move the trial out of Utah.

Attorneys for the former street preacher announced Wednesday they intend to refile their petition with the 10th Circuit of Appeals asking for a change of venue for the trial.

Just last week, the defense filed a writ of mandamus with the Denver appeals court asking for the trial to be moved, saying it would be impossible to seat an unbiased jury in Utah.

"We deny the petition as premature and the stay as moot," the court wrote in its decision. The court also cited prior rulings that noted such a petition was a "drastic remedy" that should only be used in "extraordinary circumstances" and not as another form of appeal.

Mitchell's attorneys, however, believe now that prospective jurors have been questioned, their argument about not being able to seat a fair jury has only been strengthened. The defense asked the judge to dismiss all but three of the jurors that were retained as part of the 32-member pool. They made a motion to dismiss after each person was interviewed. Their main argument for the majority of jurors was that each already had a fixed belief of what happened to Smart and Mitchell's involvement based on news coverage.

The defense informed Kimball of their plan to file the appeal either late Wednesday or early Thursday and asked the judge to postpone the trial until a decision from the 10th Circuit is made.

Kimball declined to stay the trial and said he believes just the opposite: After questioning prospective jurors, he believes a fair and impartial jury can be seated from any of the 32 remaining jurors.

"My view is there couldn't be any actual prejudice," he said. "We know more about these people than any jury I've been involved in in my entire practicing life."

Kimball told the defense to be ready to proceed as scheduled Thursday morning.

After the final 12 jurors plus two alternates are selected, opening arguments will be presented by both sides, a process that could take about 90 minutes.

Kimball told the prosecution to be prepared to call its first witness by Thursday afternoon. The order of witnesses has not been revealed publicly. Smart, her sister, Mary Katherine Smart, and her mother, Lois Smart, are all on the possible witness list.

Earlier Wednesday, a day after Kimball scolded attorneys for the slow pace of jury selection, the process noticeably picked up.

Ten of the first 11 people called to the witness stand were retained as prospective jurors. Two others who did not take the stand were dismissed, apparently based on the answers to their questionnaires. Kimball redacted some of the information on those questionnaires, saying some of the answers were "high sensitive and personal." One of those dismissed jurors also had "unusually strong responses about punishment" in the case, he said.

Every juror questioned over the three-day period had heard of Elizabeth Smart and a majority had heard of Mitchell. The most common elements of the Smart story that prospective jurors remembered were that Smart was abducted from her home and that she was found several months later in the company of Mitchell and his wife Wanda Barzee.

It was for that reason that Mitchell's lawyers asked for the majority of prospective jurors to be dismissed because they came into the case already with a fixed idea of what happened.

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