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Prosecutors respond to Mitchell's latest appeal



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SALT LAKE CITY — Federal prosecutors filed a response to the U.S. 10th Circuit Court of Appeals late Thursday saying that Brian David Mitchell's last-minute appeal to have his kidnapping trial stayed is "moot," as a jury has already been empaneled. However, defense attorneys, who filed even later, say the appeal is still valid.

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

According to court documents filed by prosecutors, the jury that was seated Thursday morning does not include any of the jurors who Mitchell alleged in a previous petition showed actual bias. Apparently, the defense had singled out six of the original 32 potential jurors who had made it through questioning earlier this week. It was an attempt at claiming Mitchell couldn't receive a fair trial in Utah, citing that these six potential jurors had made statements that "prejudged guilt," as stated in Mitchell's appeal.

The appeal, defense attorneys argued, is legitimate at any stage of the trial, as it aims to stop the trial from proceeding.

"Indeed, this court may order that a mistrial be declared if necessary to grant the relief requested," defense wrote. "… The only type of pretrial legal issue which might be mooted by some later act (such as a trial) would be where an issue loses all significance in light of the later developments."

Those six jurors were never seated, so prosecutors believe there is no reason to not continue the trial, which began after the jury was empaneled Thursday morning. Citing similar precedent found in a 1982 case, the prosecution's response stated that, "In general a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome."

It goes on to say that the purpose of voir dire, or the examination of potential jurors or witnesses by a judge and legal counsel, is to obtain an impartial jury, which prosecutors in Mitchell's case believe has happened.

"Here, the only jurors about which Mitchell specifically complained in his Supplemental Memorandum were six jurors who did not end up on the jury," U.S. attorney Carlie Christensen wrote in the response. "Because no jurors, about which Mitchell specifically complained in his Supplemental Brief were seated on the jury, there is no prejudice to eradicate, there is no relief for this Court to grant, and the mandamus petition is moot and should be denied (sic)."

Federal defender Steven Killpack countered, stating, "It is as true today as it was yesterday that this Court's decision to grant or deny the petition should be based upon the existence of serious error and irreparable harm."

As the trial has only "nominally begun" in Salt Lake City, defense believes a mistrial could be granted and a new trial ordered at a different venue.

E-mail: wleonard@desnews.com

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Wendy Leonard

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