Judge denies motion to move Mitchell trial out of state

(AP file photo) SALT LAKE CITY (AP) -- A federal judge said Monday he won't move the upcoming trial of a man charged with kidnapping Elizabeth Smart -- at least for now.

Defense attorneys had argued that intense publicity about the case had so tainted the jury pool that Brian David Mitchell could not get a fair trial in Utah.

U.S. District Court Judge Dale Kimball said the presumed prejudice against the former street preacher did not meet the constitutional standard that would require him to move the November trial to another venue.

However, Kimball said publicity surrounding the case does raise concerns over seating an impartial jury. He said court rules allow him to delay a final decision on moving the case until responses to a jury questionnaire can be reviewed.

The court has said it will send as many as 500 questionnaires to potential jurors statewide about a month before the trial.

The judge said both sides will have 10 days to make additional change of venue arguments after the jury questionnaires are returned.

Respondents not disqualified by their responses would then be questioned individually by defense attorneys and prosecutors if the court decides to hold the trial in Salt Lake City.

Mitchell's federal public defenders were not available Monday and a spokeswoman for the U.S. Attorney for Utah's office declined to comment on the ruling.

Federal prosecutors have said Utah's population of 2.8 million is large enough to ensure an unbiased jury, despite the publicity that surrounds the case. They have also argued that much of the publicity favored Mitchell because it referenced questions about his competency for trial.

Mitchell, 56, was indicted by a federal grand jury on charges of kidnapping and unlawful transportation of a minor across state lines. If convicted, he could spend the rest of his life in federal prison. Defense attorneys have said they will pursue an insanity defense for Mitchell.

Smart was 14 in 2002 when she was taken from her Salt Lake City home at knifepoint. The case drew national headlines during the search for the missing blue-eyed girl and when she was recovered in March 2003 while walking a suburban street with Mitchell and his now-estranged wife, Wanda Eileen Barzee.

Barzee has pleaded guilty in the case and been sentenced to 15 years in federal prison.

Now 22, Smart testified last year that Mitchell took her to a mountainside camp where he raped her.

An April survey of 300 Utahns conducted by a jury expert for the defense found some 92 percent of respondents believed Mitchell was either definitely or probably guilty of kidnapping Smart. The figure was about 34 percent higher than residents questioned in Colorado and Kansas -- both states where the trial could be moved.

In his ruling, Kimball dismissed the survey's questions as "too broad, too leading and too lacking in details relevant to legal proceedings to provide useful information."

(Copyright 2010 by The Associated Press. All Rights Reserved.)

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