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SALT LAKE CITY — The jury questionnaires are back, but prosecutors and defense attorneys for the upcoming federal trial of Brian David Mitchell, accused of kidnapping Elizabeth Smart, have very different interpretations of them as well as differing opinions about whether the trial should be moved out of Utah.
Mitchell, accused of kidnapping and raping Smart in 2002, is scheduled to go to trial Nov. 1. Recently, approximately 600 jury summonses were sent out and 500 of those people were asked to fill out a 42-page juror questionnaire.
March 12, 2003 - Elizabeth Smart found alive
July 26, 2005 - Brian David Mitchell found incompetent to stand trial
Feb. 12, 2008 - Judge orders Smart suspect, Wanda Barzee, to be medicated
March 5, 2008 - Accused Elizabeth Smart kidnappers indicted
March 11, 2008 - Utah Supreme Court stops Barzee's forced medication
Oct. 9, 2008 - Judge denies forced medication request for Mitchell
Oct. 17, 2008 - Mitchell's case moves to federal court
May 1, 2009 - Elizabeth Smart talks about months in captivity
Oct. 1, 2009- Elizabeth Smart relives kidnapping ordeal at Mitchell hearing
Nov. 17, 2009 - Barzee pleads guilty to federal charges in Smart kidnapping
Nov. 29, 2009 - Competency hearing set in Smart abduction case
Nov. 30, 2009 - Testimony begins in Mitchell's 10-day competency hearing
March 1, 2010 - Mitchell found competent for trial
March 12, 2010 - Federal judge sets Smart kidnapping trial date
Aug. 16, 2010 - Judge denies motion to move Mitchell trial out of state
Sept. 9, 2010 - Rules proposed for jury selection in Mitchell's upcoming trial
After excusing some people for hardships, about 330 questionnaires were completed. Based on the answers, both prosecutors and Mitchell's defense team filed statistic-heavy memorandums Tuesday for U.S. District Judge Dale Kimball, giving their opinions as to whether an impartial jury can be seated and whether Mitchell's trial deserves a change of venue.
Both prosecutors and the defense noted that 99 percent of respondents had heard of the Elizabeth Smart case from the media.
Prosecutors contend, however, that an impartial jury can still be seated because the high majority of those potential jurors said they didn't trust the media's coverage of the case anyway, and many of them had not read many stories about Mitchell in the news.
Ninety-two percent of respondents said the media were "sometimes accurate or rarely accurate" in its reporting; 69 percent reported they did not use the news to form their opinions on a case; and 12 percent of respondents "indicated that they do not trust the news or rarely watch the news," according to court documents.
"It is evident that a fair and impartial jury can be selected in the District of Utah," prosecutors wrote.
According to prosecutors, the juror questionnaires also found that only one-fourth of respondents "would be more likely to find Mr. Mitchell responsible because of the news coverage," 44 percent said the news coverage had no effect on them and 30 percent said they were unsure, according to court records.
The questionnaires also found 70 percent of respondents had seen 10 or fewer news stories about Mitchell, and the majority of those people had seen less than five. About 29 percent of respondents had seen more than 10 news stories on Mitchell, prosecutors say.
Of the completed questionnaires, less than 1/4 had a response "that demonstrated a strong negative feeling against Mr. Mitchell or an inability to be impartial," the government said.
Prosecutors estimated about a quarter of the potential jury pool would be dismissed based on the questionnaires, but that still left 3/4 of the pool to seat a fair and partial jury.
Defense attorneys, however, have a vastly different interpretation of the juror questionnaires.
The defense said in court documents that based on the responses, 70 percent of respondents had "absolutely concluded" either Mitchell was guilty or they would never find him not guilty by reason of insanity.
"Even using conservative methods and tallying, roughly 70 percent of the pool of potential jury members unambiguously declare that they have prejudged (Mitchell's) guilt or would never, in any case, consider a verdict of not guilty by reason of insanity."
Mitchell's defense team noted in court documents that the questionnaires came to essentially the same conclusion as 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, however, had previously criticized the survey, calling it "useless" because of its methodology and leading questions.
Kimball had earlier agreed, over prosecutors' objections, that the questionnaires would include, "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." Potential jurors were also asked 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 ordered to run concurrently.
In August, Kimball ruled against a change of venue for Mitchell's trial, noting that despite the high profile nature of the case and continuous media coverage, he did not find that "so great a prejudice against the defendant exists … that the defendant cannot obtain a fair and impartial trial" in Utah,
Kimball agreed, however, to look at the change of venue issue again once the juror questionnaires were completed.
E-mail: preavy@desnews.com
