Judge denies motion to delay Mitchell trial

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SALT LAKE CITY — U.S. District Judge Dale Kimball has denied a motion filed by attorneys for Brian David Mitchell to stay the trial of the man accused of kidnapping and sexually assaulting Elizabeth Smart pending their client's appeal to the 10th Circuit Court of Appeals.

The trial is scheduled to begin on Monday.

Mitchell's attorneys have filed a petition for writ of mandamus, requesting the higher court order a change of venue for the trial. The attorneys believe Mitchell "is likely to succeed on the merits of the petition," which is why they said the trial should be put on hold until a ruling from the 10th Circuit Court is made.

In his ruling issued Tuesday afternoon, however, Kimball said he could not make that same conclusion.

Prejudice exists in the Utah district to the extent that Mitchell cannot receive a "fair and impartial trial" here, the defense attorneys argued in their motion. They also say the public interest will be served by staying the trial and waiting for the 10th Circuit's decision.

Twice, Kimball has ruled that a fair and impartial jury can be seated in Utah. In August, Kimball ruled that a fair trial could be held in Utah, noting that in a state of 2.8 million people, it shouldn't be hard to seat a 12-member jury.

He affirmed his ruling last week after going through more than 330 questionnaires of potential jurors that had been filled out and returned. There was not a significant prejudice against Mitchell because of the media coverage, he said.

While the majority of people had heard of Smart, prosecutors contended the questionnaires showed most respondents had watched little media coverage of the legal proceedings, and many were skeptical of what the media was telling them anyway.

Kimball also said a delay would impact hundreds of potential jurors and more than 50 witnesses.

The U.S. Attorney's office has until midnight Wednesday to respond to the defense's petition.

The 10th Circuit could now take one of three actions: rule on the defense motion as is, ask the government for a written response or schedule oral arguments.


Story written by Pat Reavy with contributions from Sandra Yi.

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