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Court of Appeals lifts stay in Mitchell case



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SALT LAKE CITY -- The U.S. 10th Circuit Court of Appeals has lifted a stay issued in the trial of Brian David Mitchell.

In the decision issued Friday morning around 11:00, the court said after considering information submitted by both the defense and the prosecution, Mitchell failed to establish valid proof that the only way to obtain a fair trial was to move it outside of Utah.

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This is the second time the higher court has denied the defense's request for a change of venue. Mitchell's attorneys had argued Mitchell cannot get a fair trial in Utah because of pretrial publicity.

In their ruling, the circuit judges said the petition was premature and a drastic remedy only to be invoked in extraordinary circumstances.

The appeals court issued the stay Thursday, halting the trial in the middle of opening arguments. The judge called the attorneys to a sidebar to deliver the news, then dismissed the newly-empaneled jury until further notice before announcing the order.

Mitchell had been removed from the courtroom for singing, but Elizabeth Smart and her family were there. Elizabeth, who was flown back from her LDS mission in France for the trial, looked concerned and uneasy when the judge made the announcement.

Her mother, Lois, was expected to testify after opening statements, followed by her sister, Mary Katherine, who was in the bedroom when Elizabeth was kidnapped in 2002.

Federal prosecutors filed a response to the appeals court decision Thursday evening saying 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, argued the appeal was still valid.

The trial will continue where it left off Monday at 8:30 a.m. Elizabeth Smart is expected to take the stand and recount her nine months in captivity with Mitchell and his wife, Wanda Barzee, early next week.


Once the 10th Circuit realized they had issued the stay after the jury had taken their seats, it probably had some type of impact on their decision.

–Daniel Medwed


University of Utah law professor Daniel Medwed says the temporary stay may have minimal impact to both sides. He says the court's relatively quick decision to lift the stay didn't come as a much of a surprise, especially because a jury had been seated.

"The empaneling of a jury is a sacrosanct moment," he said. "I think once the 10th Circuit realized they had issued the stay after the jury had taken their seats, it probably had some type of impact on their decision."

Legal experts say because this was the second time the court reviewed and denied the motion for change of venue, a potential challenge down the road may be weakened.

"Generally speaking, it's very, very hard to win a change of venue motion. They're seldom granted across the country, especially in federal cases," Medwed explained.

Medwed says Mitchell's attorneys could point to the disruption in a post-conviction appeal.

"But on the other hand, I think it was good that the 10th Circuit thoroughly evaluated this renewed motion and analyzed it again for a second time," he said.

However, in the short term, they could also use it to their advantage.

"I imagine by Monday they'll be retooled and eager and present a very strong opening statement," Medwed said.

E-mail: syi@ksl.com

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Sandra Yi

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