SALT LAKE CITY—
The 10th Circuit Court of Appeals has ruled that the trial of the accused kidnapper of Elizabeth Smart will resume in Utah.The court says Brian David Mitchell, 57, failed to establish "entitlement" to moving trial. The U.S. District Court of Utah says the trial will resume on Monday at 8:30 a.m.
Mitchell, 57, is accused of snatching Smart from her bedroom back in 2002. Police said she was held captive for nine months until she was found walking down a Sandy street in the company of the homeless street preacher and his wife, Wanda Barzee. Smart testified at a competency hearing that Mitchell had made her a polygamous "wife," and tied her up and raped her repeatedly.
Here is a copy of the ruling:
10th Circuit Ruling in Mitchell case The ruling follows a stunning move on Thursday when the appeals court halted Mitchell's trial barely an hour into opening statements. The judge sent the jury home and announced that the trial had been stayed. The Denver-based appeals court then asked both the U.S. Attorney's Office for Utah and Mitchell's defense team to file papers explaining whether or not they believed Mitchell could get a fair trial.
"It is clear, therefore, that the jury has been empaneled, and the trial has, at least nominally, begun. However, the petition is in no way rendered moot by this circumstance. The petition for mandamus sought intervention from this court to stop the trial proceedings below, no matter what stage they were at," Mitchell's defense attorney, Parker Douglas, wrote.
The U.S. Attorney's Office for Utah believes a fair jury has been picked.
"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," assistant U.S. Attorney Elizabethanne Stevens wrote in a filing late Thursday night.
But complicating matters is the fact that the 10th Circuit justices -- seemingly unaware that a jury had already been selected when it handed down its ruling -- halted a trial after it had begun. It raises the issue of "double jeopardy," where a person cannot be tried twice for the same crime. In their filing, defense attorneys said they were willing to waive that if the appeals court moves the trial out of Utah.
"There is certainly nothing in the record to support such a finding in this case, and Mr. Mitchell disavows any intent to argue such. Indeed, he expressly waives any argument or rights he might have to avoid a retrial in this case on double jeopardy grounds based on the venue transfer relief he has requested in this petition," Douglas wrote.
Mitchell's defense team has argued that he cannot get a fair trial in Utah because of the massive amounts of pre-trial publicity surrounding the 2002 abduction of Elizabeth Smart. Then 14, she was taken from her bedroom in the middle of the night and found nine months later in the company of the homeless street preacher and his wife, Wanda Barzee.
In opening statements on Thursday, prosecutors said Elizabeth Smart would tell the jury of her nine month nightmare of being snatched from her home and held prisoner, forced to don robes and "marry" Mitchell, being raped repeatedly, forced to drink alcohol, smoke cigarettes and marijuana. Mitchell had threatened to kill her and her family if she tried to get help, prosecutor Felice Viti told the jury.
In his opening statement, Douglas said that what happened was "horrifying," and that it is not the jury's role to decide forgiveness.
"We're here to talk about justice, and we're here to determine a just result given the facts that you are asked to evaluate in the law that the judge has said he will give you. In our criminal system, those..." and Douglas was cut off by the judge.
The judge then sent the jury home and announced the trial had been halted.
Smart, now 23, has returned from a mission for The Church of Jesus Christ of Latter-day Saints to testify against him. She was in court and appeared surprised when the trial was halted. Her family told Fox 13 they would have no comment on the abrupt delay.
Here is a copy of the federal prosecutors' response to the 10th Circuit Court:
US Response in Mitchell trial Here is a copy of the response from the defense attorneys of Brian David Mitchell to the 10th Circuit Court:
Mitchell response to 10th Circuit
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