SALT LAKE CITY — Brian David Mitchell, accused of kidnapping Elizabeth Smart, will be tried in Salt Lake City.
At least, that's the plan for now.
U.S. District Judge Dale Kimball on Monday issued a 22-page decision regarding whether the trial for the former street preacher, scheduled to start Nov. 1, should be moved out of Utah because media coverage surrounding the high-profile case has made it impossible to seat an impartial jury.
Kimball denied Mitchell's motion, but he also said he would reconsider the issue and make a final decision after juror questionnaires were returned and both sides had time to review them. That could happen sometime between the end of September and beginning of October.
Mitchell is accused of kidnapping then-14-year-old Smart in 2002 and taking her across state lines for unlawful purposes. Her disappearance and return in 2003, along with the arrests of Mitchell and his co-defendant and estranged wife, Wanda Barzee, became one of Utah's highest-profile abductions ever.
At issue for Kimball to decide was whether "so great a prejudice against the defendant exists … that the defendant cannot obtain a fair and impartial trial" in Utah, according to court records.
In deciding whether presumed prejudice existed, Kimball said he looked at six factors: media interference with courtroom proceedings; the size and characteristics of the community where the crime occurred; the nature and tone of media publicity; the amount of time elapsed between the crime and the trial; the impact of the crime on the community; and the effect of Barzee's decision to plead guilty in both state and federal court.
"The media has undoubtedly been interested in covering the proceedings in this case, but the court has not sensed any kind of 'carnival atmosphere,' " Kimball wrote in his decision.
As for seating an impartial 12-member jury, Kimball said the court had a population of 2.8 million people from which to choose.
"This is not a case where there is a heightened risk of prejudice in a small community," he wrote.
Even when the estimated 8,000 to 10,000 volunteers who searched for Smart were excluded from being potential jurors, that still left more than a million people to choose from, Kimball said.
In addressing community impact, Kimball disagreed with the defense's comparison of those who helped search for Smart being impacted in the same way as those who lost a loved one in the Oklahoma City bombing committed by Timothy McVeigh.
"The nature of the impact is strikingly dissimilar," Kimball wrote.
Regarding the alleged inflammatory nature of the media coverage of Mitchell, as portrayed by an analyst hired by the defense, Kimball said the defense's assessment was exaggerated and its search of "inflammatory" terms allegedly used in news stories to describe their client, was presented out of context.
If anything, Kimball said, the media coverage might help the defense's expected insanity defense.
"The court found the reporting (of Mitchell's federal competency hearing) to be even-handed and limited to the evidence presented by both the prosecution and the defense," his ruling said. "The defense expert's assertion that little or no cross-examination was reported is not supported by the evidence."
The judge expressed worry about a survey conducted by Survey Research Center at the University of Houston for the defense, which found 92 percent of Utahns believed Mitchell was probably or definitely guilty. Kimball noted 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."
"The court has serious concerns regarding the validity of the responses given the failure to ask these relevant questions," Kimball wrote.
Media coverage of Mitchell has also significantly diminished over the past several years, Kimball wrote. By the time Mitchell goes to trial, eight years will have passed from the time Smart was abducted.
"At this time, based on the evidence presented by defendant, the court is not satisfied that so great a prejudice exists in this district that defendant cannot receive a fair and impartial trial," Kimball wrote.
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