Panel weighs publicity surrounding Smart kidnapping case

Published: Wednesday, Oct. 12 2011 10:35 p.m. MDT

SALT LAKE CITY  — In an intimate discussion of the media tempest and intense interest that consumed the Elizabeth Smart kidnapping trial, the numbers speak for themselves.

In the one Wikipedia entry that focuses simply on the kidnapping itself, media law professor Randy Dryer pointed out this: the text has undergone 1,653 edits by 889 persons.

"We live in a brave new world," Dryer said. "A world where there is instant access to information...where there are 800 million Facebook users."

Dryer said if Facebook were a country — it would be the third largest in the world, behind China and India.

Against this backdrop of the din of traditional media, social media and citizen journalists, Dryer moderated a panel discussion Wednesday night probing the protracted angst that comes with balancing the right of the public's right to information against the constiutional guarantee of a defendant's right to a fair trial.

Such balance seemed impossibly unattainable in light of the magnified glare of scrutiny on the case, shaped in part by the salacious events of Smart's ordeal in captivity and  the religious rantings and persona of kidnapper Brian David Mitchell.

Panelists in the discussion, hosted by The Tenth Circuit Historical Society and the Federal Bar Association, were federal judge Dale Kimball, who presided over the trial; Diana Hagen, a member of the U.S. Attorney's prosecution team; Parker Douglas, a defense attorney for Mitchell; Michael O'Brien, an attorney for media on issues of access in the trial; and Deseret News reporter Pat Reavy, who covered the abduction at the outset and the trial as well.

Dryer told the audience of mostly attorneys that the real-life experience and pressures that played out in Salt Lake City with the publicity of the Mitchell trial will be something that all courtrooms will some day have to confront.

"The implications for this new environment for courts are profound," he warned, with non-trained citizen journalists blogging, tweeting, and with trained journalists posting updated stories online from a judicial environment traditionally constrained and tempered by rules of decorum.

Parker, a member of the defense team, said he doesn't believe the court system has prepared itself for the ramifications of social media and the reality that follows.

"I do not think the courts are very well equipped or case law or guidance are very well developed in this area."

The litmus test in how much publicity was too much publicity in the Smart kidnapping trial was Mitchell's defense losing its efforts to have the case tried in another location.

Fears over too much pre-trial publicity tainting a potential juror pool did not, in Kimball's judgment, rise to that level.

Part of the reasoning behind his decision, Kimball said Wednesday, may have been the passage of time — Smart was found with her captors in Sandy in 2003 — and Mitchell's trial wasn't held until 2010.

"But the amazing thing is there are a whole of people out there who don't read anything," Kimball said. "Or, if they do, they do not remember anything."

Reavy, too, said it was clear by responses in the jury selection process that some sort of disconnect goes on with the public  —  even in sensational cases like that of the Smart kidnapping.

"There were so many of the potential jurors being questioned who thought this case had ended years ago," he said. "They thought it was settled. They do not follow every detail as closely as journalists, attorneys or judges do."

Still, the hoards of media and the public clamoring to get inside the courtroom and hungry for details afterward had both legal teams keenly aware of the importance of the trial — and the fact they were under the microscope as well.

"Public scrutiny just added another layer to making sure we did the best job we could," Hagen said.

Beyond the administrative headaches posed by the publicity and some of the legal arguments surrounding venue and access, Kimball said he doesn't think the high level of public attention shaped the heart of what happened in the courtroom in the Mitchell case.

"You can control the courtroom and the courthouse, and the decorum and the behavior," Kimball said, "but it is pretty tough to control it anywhere else."

E-mail: amyjoi@desnews.com

Twitter: amyjoi16

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