Could breaks in Mitchell trial hurt case?

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SALT LAKE CITY -- The trial of Brian David Mitchell, accused of kidnapping Elizabeth Smart, is expected to last more than a month.

Some of that time includes long breaks, including this four-day weekend jurors have off for Veterans Day, and a week off for the Thanksgiving holiday.

But does having that much time off present any problems for a jury, especially when some of that time is for a holiday that includes large family dinners for most people, many of whom may want to talk about the case or have questions about it?

"The judge will give very clear instructions about what they can and cannot do," said University of Utah law professor and former federal judge Paul Cassell, who is not directly involved in the case. "I'm sure Judge (Dale) Kimball has read them the riot act."

Before they break for Thanksgiving, Cassell said Kimball likely would stress to the jurors that they talk about "turkey and football and nothing else."

As for whether the jury should have been sequestered to avoid the possibility of jurors talking to others or watching or reading up on news coverage of the Mitchell trial, Cassell said it is always a difficult situation to "lock up" a jury for an extended period of time, especially over the holidays. The trial began Nov. 1 and is scheduled until Dec. 10.

Legal consultant Lynn Packer agreed.

Packer said sometimes attorneys and courts can "go overboard" about a jury picking up a newspaper or flipping channels and seeing a newscast for a few seconds.

"The real danger is when they go out and purposely seek information about a case," he said.

Packer has acted as a consultant on many cases, including consulting the defense in the high-profile trials of former FLDS leader Warren Jeffs and psychiatrist Robert Weitzel.

Weitzel was charged with five counts of first-degree felony murder for the deaths of five elderly patients under his care and was convicted by a jury in 2000. Weitzel was accused of overmedicating the patients with morphine. The conviction was later tossed out because the prosecution had withheld key evidence.

A second trial on charges of manslaughter and negligent homicide included three weeks of sometimes complicated testimony from medical experts. A jury acquitted Weitzel in less than two hours.

In that case, Packer believed the use of pictures of the patients when they were admitted, as opposed to pictures of them in the prime of their lives, made a difference.

Packer is a strong proponent of using visuals and props during a trial.

"I'm a strong believer that visual evidence should be really well displayed. It's often relied on for telling the story in the courtroom," he said.

During the first two weeks of the Mitchell trial, prosecutors have shown photos of Smart, Mitchell and Wanda Barzee out in public wearing the robes Mitchell is accused of forcing them to wear, pictures of Mitchell's campsite where Smart was held, as well as the knife allegedly used to kidnap Smart from her room, the wire cable Smart was tethered to for weeks and the wig and sunglasses she was forced to wear as a disguise while traveling. But attorneys also have to act cautiously so as not to play to the emotions of jurors.

"They're not supposed to do that," Packer said. "Neither side is supposed to appeal to their emotions, neither prosecutors nor defense attorneys are supposed to tell (the jury) to put themselves in (the victim's) shoes. But the fact is, sometimes subtly, sometimes not so subtly, they do that."

Packer is not directly involved with the Mitchell case and admits he has not followed it closely. He believes that the legal system in general, however, is a failed system, particularly when it comes to making trials last longer than they should.

"Veterans Day?" Packer said. "Give me a break. I'm a veteran; I didn't have the day off."

The problem attorneys face in a long trial like Mitchell's is jurors forget a lot of the information they hear in the beginning.

"The jurors forget the first two or so days. That doesn't favor either side," he said. "Most trials last way too long. Most witnesses are asked way too many questions."

The Mitchell case ultimately will boil down to a "battle of experts," Packer said. But Packer also believes it is possible to have a fair trial in Utah, even for high-profile cases like Mitchell's.

"Once you get into a courtroom, under a judge's supervision of presenting facts, it's intense," he said. "Your focus really goes on what's being presented. I think the outcome on most cases hinges on what goes on in the courtroom and not on opinions formulated in advance."

E-mail: preavy@desnews.com