Jeffrey D. Allred, Deseret News
Brian David Mitchell is escorted into Federal Court on the third day of his trial in Salt Lake City. Mitchell is accused of kidnapping Elizabeth Smart.

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.

But Kimball restated what he's already said several times before. He said that under the law, a judge doesn't have to seat a jury that doesn't know anything at all about Smart or Mitchell. He needs to seat a jury that is willing to listen to all the evidence presented, and make a decision based solely on that information and not from any outside source.

"It's sufficient if a juror can lay aside impression or opinion (about a defendant or a case)," he said.

The judge also told defense attorneys, "Every juror is going to know (Mitchell) is accused. That's why we're here."

Prospective jurors retained Wednesday include:

 A man who moved to Utah in 2007 and knew very little about the case. "I've heard the name of the young lady in passing, that's about it," he said. He was one of the two jurors the defense did not object to on Wednesday.

 A man who had heard of Mitchell and Smart, and noted that the "wheels of justice turn slow, I guess," but then added, "That's a good thing." The man said it was hard to discern between "hype and fact" in the Mitchell case. And when asked what he thought about the insanity defense, he said, "There are people who are incapable of determining right from wrong, but there is a burden of proof with that."

 A man who lived in San Jose until two years ago. The prosecution called him a "perfect juror" because in their minds, having him on the jury would be the equivalent of having a change of venue for the trial. He had heard of Mitchell and Smart, but until being called for jury duty, he thought the case was over. "I hadn't heard anything about the case for so long, I thought he had already been found guilty."

 A man who "works in religion" who said he is committed to his faith and the teachings of the Bible and Book of Mormon. He seemed to know more about the case than other potential jurors, but he also only called Mitchell a suspect because he said the media called him a suspect. "I hope the (court) finds out the truth about who abused her and who held her all those months," he said.

 A man who said he was concerned about letting a person return to society who has the potential to offend again and who originally wrote in his questionnaire that he preferred to not be part of the trial because of its high-profile nature. The man said he had since changed his mind. He said he would be able to make decisions based on the facts presented, however, and not let his emotions dictate his decision.

 A man who said he remembered little about the case — even admitting at one point he couldn't remember if he was getting the facts of the case confused with the story in the book "The Green Mile." He answered "probably" to many questions about whether he could make a decision based on evidence presented in court and not let his emotions get the best of him. The man said of sex offenders in his juror questionnaire, "Often, people aren't punished adequately for the damage they have done." As for Mitchell's singing, the man said he either thinks Mitchell is mentally ill or is simply trying to get out of being in court. Kimball retained him, saying he thought his answers were reflective, thoughtful and he thought through his answers carefully.

 A woman who said it was almost a miracle when Smart was found alive and admitted to the court, "I don't understand mental illness that well."

 A man who, while being questioned himself, asked the court if the insanity defense was a possibility in Utah. He said Mitchell's singing made it difficult for the court to proceed, but also believed people handle stress in different ways.

One man who was excused Wednesday based on his opinions on the insanity defense and punishment, said, "My main concern is the public safety and the convicted person repeating (his offense)." He also said the insanity defense was "a little bit of a tough one for me."

The former street preacher accused of kidnapping Smart at knifepoint from the bedroom of her Federal Heights home in 2002 was in the courtroom briefly Wednesday morning before Kimball ordered him to leave to a nearby annex to witness the proceedings because of his disruptive singing — something that has become a routine procedure in each of Mitchell's court appearances.

What seemed to catch the most attention from some courtroom observers, however, wasn't when Mitchell was singing, but the times he stopped singing.

Before the judge entered the courtroom, Mitchell was engaged in what appeared to be conversation with his defense attorney Robert Steele. He also appeared to engage in conversations with his attorneys Tuesday, which has been unusual in his previous court appearances for several years.

At one point Wednesday, Mitchell looked around the courtroom, then started singing again.

When the judge arrived, there was a point when he stopped singing briefly, then shortly picked it up again when the next round of prospective jurors were brought into the courtroom.

Also Wednesday, an order was filed by Kimball to have Barzee flown back to Utah from Texas on Dec. 1 to testify on behalf of the defense. Barzee was sentenced to 15 years in federal prison for kidnapping and unlawful transportation of a minor in relation to Smart's abduction.

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