Prospective jurors in Brian David Mitchell trial to be quizzed about insanity defense

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SALT LAKE CITY — Attorneys representing both sides in accused Elizabeth Smart kidnapper Brian David Mitchell's federal case were scheduled to be back in court Wednesday to discuss a handful of defense motions.

But U.S. District Judge Dale Kimball has already made a decision on what was expected to be the key point of contention.

Kimball ruled Monday that when questionnaires are sent out to prospective jurors, they will include the question, "Do you know what will happen to Defendant if the jury reaches a verdict of not guilty by reason of insanity? Yes or No. If yes, please explain what you think will happen."

But prospective jurors will also be asked whether they will be able not to think about what will happen to Mitchell if such a verdict is reached, and whether a prospective juror could find him not guilty by reason of insanity if that's what the evidence shows.

Mitchell is accused of kidnapping Smart in 2002, sexually assaulting her and taking her to California before returning to Utah where he was spotted and arrested.

Mitchell's estranged wife and former codefendant, Wanda Barzee, struck plea deals in both her federal and state court proceedings earlier this year. She was sentenced to 15 years in federal prison for her role in Smart's kidnapping, and one to 15 years at the Utah State Prison for the attempted kidnapping of Smart's then 15-year-old cousin. The sentences were to run concurrently.

Prosecutors had argued in prior filings that it was "unnecessary and inappropriate" to ask jurors what they know about not guilty by reason of insanity because a jury is not supposed to consider the possible consequences of its verdict.

Defense attorneys believe it is appropriate because they fear if jurors believe Mitchell will be set free, they may be biased to not reach that verdict.

In his ruling, Kimball said guilty by reason on insanity was sure to be an issue in the case. He also said it's the court's job to ensure that an impartial jury has been seated.

"This court is in a position to allow questions that can demonstrate potential biases or beliefs that could improperly influence a proper verdict. This court sees no harm in determining up front whether there are" potential jurors who believe a verdict of not guilty by reason of insanity would result in Mitchell being set free, Kimball ruled. "If a potential juror cannot follow the court's instructions to disregard the consequences, that juror should not serve on the jury."

Kimball said that the time to find out if any biases exist among potential jurors was during the questionnaire process.

Mitchell's defense team has filed several other motions expected to be considered Wednesday including one requesting that expert witnesses who are called to the stand during the trial be prohibited from stating an opinion about Mitchell's mental state; one calling for a ban on references in court to the failed plea deal that attorneys in Mitchell's state court proceedings tried to work out in 2004; evidence regarding allegations of sex abuse committed by Mitchell prior to the Smart crime; use of Mitchell's competency evaluations or testimony given at his state and federal competency hearings; and evidence regarding Mitchell's ability to understand the charges against him and assist his attorneys in his defense that is not relevant to his sanity at the time Smart disappeared.


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Pat Reavy


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