Appeals court stays Mitchell trial

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SALT LAKE CITY -- The 10th Circuit Court of Appeals has granted a stay of the Brian David Mitchell trial, forcing a federal judge in Salt Lake City to discontinue the trial in the middle of opening arguments.

Obviously I'm very unhappy about this, but I have to follow what the 10th Circuit told me,

–U.S. District Judge Dale Kimball

He dismissed the newly-empaneled jury in the middle of opening arguments and told them they may not be able to return until next week.

"Obviously I'm very unhappy about this, but I have to follow what the 10th Circuit told me," said U.S. District Judge Dale Kimball, who was handed a piece of paper during the trial informing him of the appellate court's decision.

Prosecutors had just finished their opening arguments, and the defense was about to make its opening statements, when the decision was announced.

Stay order

Betsy Shumaker, clerk of the court for the 10th Circuit Court of Appeals, said the order was issued at 10:28 a.m. Thursday, granting a temporary stay of the trial proceedings while justices consider the petition to move the trial outside of Utah.

We don't know how long the stay is going to be. We don't know if we're going to ask for a response from the government. So at this point we're all in the same position just wait and see what they're going to do.

–Wendy Lewis

"Upon consideration, we grant the motion. Trial proceedings shall be temporarily stayed pending this court's review of Mr. Mitchell's mandamus petition," the court said.

Defense attorneys filed Mitchell's petition Wednesday night arguing that it's impossible for their client to get a fair trial in Utah because all of the prospective jurors had heard about Elizabeth Smart's alleged kidnapping and most knew that Mitchell was with her when she was found. Because they believe the jurors are prejudiced against their client, the defense wants the trial moved out of Utah.

A previous petition to the Denver court was denied -- the court called it premature -- and Kimball has repeatedly denied requests for a change of venue, saying jurors need only be fair and impartial and it isn't necessary to find jurors who have never heard anything about the case.

Appellate court judges Deanell Tacha, Timothy Tymkovich and Jerome Holmes will now consider Mitchell's request.

It is very rare for federal cases to be granted a venue change.


Brian David Mitchell timeline
June 5, 2002 - Elizabeth Smart was snatched from her bedroom at knifepoint
March 12, 2003 - Elizabeth Smart found alive
March 18, 2003 - Mitchell and Barzee Charged
Aug. 31, 2004 - Mitchell Competent to Stand Trial
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. 10, 2008 - Prosecutors to move Mitchell case to federal court
Oct. 17, 2008 - Mitchell's case moves to federal court
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
Feb. 8, 2010 Barzee found competent in state court, takes plea deal
March 1, 2010 - Mitchell found competent for trial
March 12, 2010 - Federal judge sets Smart kidnapping trial date
May 21, 2010 - Barzee sentenced to 15 years in prison for Smart abduction
July 29, 2010 - Judge in Smart case takes change of venue request under advisement
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
Oct. 21, 2010 - Judge: Mitchell trial to stay in Utah
Oct. 25, 2010 - Elizabeth Smart returning home to testify in Mitchell trial
Oct. 26, 2010 - Judge denies motion to delay Mitchell trial
Oct. 28, 2010 - Appeals court denies venue change in Mitchell trial
Nov. 1, 2010 - 9 possible jurors retained in Mitchell trial
Nov. 3, 2010 - Defense seeks delay of Smart kidnapping trial
Nov. 4, 2010 - Appeals court stays Mitchell trial

Following the announcement of the stay, defense attorney Parker Douglas, running as he left the courtroom, called it "horrible timing." He said, "I don't know that anybody would be encouraged, stopping in the middle of opening statements."

The 10th Circuit Court of Appeals in Denver made it clear in its last denial that it wanted to hear what the prospective jurors had to say before making a decision on whether to consider moving the trial out of Utah, Douglas said. Now that the evidence has been submitted, the court is willing to look at it.

"We're never confident one way or the other on that," said defense attorney Wendy Lewis. "We don't know how long the stay is going to be. We don't know if we're going to ask for a response from the government. So at this point, we're all in the same position: just wait and see what they're going to do."

Mitchell was not in the courtroom when the judge read the higher court's order. As usual, he was removed earlier for singing.

As for the Smart family, they left the courthouse without talking to reporters. There were, however, obvious looks of frustration of faces of Elizabeth and her father, Ed Smart, upon hearing the news of the stay.

Elizabeth's grandmother, who sat beside Elizabeth in court, had little to say.

"I really don't have any comment to make," she said. "I'm just here to support the family."

What comes next?

Thursday's court order was so unexpected, and so rare, it left attorneys and legal experts scratching their heads, trying to figure out what happens next.

"It's very unusual. This is not common for a court to grant a stay in the middle of the opening arguments," says former U.S. Attorney David Jordan.

Some say it's possible we'll see another sudden twist because the Denver court judges may not have realized the trial had started and may overrule themselves because of that.

The wording in Thursday's order to stay the trial suggests they didn't know. It asks attorneys to file briefs before midnight that inform the court whether a jury has in fact been empaneled and whether that makes the petition moot.

"If I could look ahead 24 hours, my guess is that the 10th Circuit would deny the motion -- largely because Judge Kimball's decision was rather well-reasoned, and also because a jury had already been empaneled, which might have some ancillary consequences for a case," said Daniel Medwed, law professor at the University of Utah.

Empaneling a jury is considered momentous because that's when double-jeopardy kicks in -- the constitutional protection against someone being tried twice for the same crime.

It's a matter of debate, but some legal experts wonder if the courts make a misstep, could Mitchell's side argue a jury can be empaneled only once? Jordan doesn't think so.

"Although they've heard half of the opening arguments, they haven't heard the first piece of evidence in the case. There's nothing in the way of evidence that's been presented to them at this point in time," Jordan says. "I think this is a circumstance where there's not going to be a double jeopardy issue."

The defense and prosecution have until 11:59 p.m. Thursday to file the briefs.


Story compiled with contributions from Pat Reavy, Sandra Yi, John Hollenhorst, Jennifer Stagg and Andrew Adams.


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