SALT LAKE CITY (AP) -
Defense lawyers for the man charged in the kidnapping of Elizabeth Smart say he can't get a fair trial in Utah because widespread interest and pretrial publicity have tainted the jury pool. At a hearing Thursday, attorneys for Brian David Mitchell will ask U.S. District Judge Dale Kimball to move the trial, preferably to Colorado or Missouri.
The defense said a survey found the public knows less and has fewer prejudices about the case in those areas.
Smart was 14 in 2002 when she was taken from her home at knifepoint. The case drew national headlines during the search and recovery of Smart in Utah and from the local and national efforts to improve child safety that followed.
"This is a case that has been seared into the mind of the community in such a way that this court cannot guarantee its ability to empanel a fair and impartial jury," defense attorneys wrote in court papers.
An April survey by the Survey Research Center at the University of Houston said 92 percent of Utah respondents said they believed Mitchell was either definitely or probably guilty of kidnapping Smart.
The figure was about 34 percent higher than results in Colorado or Kansas, according to survey designer Kent L. Tedin, a Houston professor who conducted similar surveys during the federal prosecution of Oklahoma City bomber Timothy McVeigh.
"The data clearly support the need for a change of venue," Tedin wrote in defense court filings.
Tedin's survey polled about 300 Utahns and roughly 250 residents in both Missouri and Kansas, court papers say. The survey has a margin of error of 6.2 percent.
Kimball is not expected to rule on the venue issue Thursday
Federal prosecutors oppose a venue change, contending a jury pool could be drawn from across the state, including communities some 300 miles from Salt Lake City, where the crime occurred.
"Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain," Assistant U.S. Attorney Diana Hagen wrote in court papers.
Hagen also said much of the pretrial publicity actually favored Mitchell because it referenced questions about his mental competency. Defense attorneys have said they will pursue an insanity defense.
In a parallel state proceeding, Mitchell has been diagnosed with a delusional disorder and was twice deemed incompetent for trial. In March, after a competency hearing, Kimball ruled Mitchell was competent to stand trial.
Mitchell, 56, is facing federal charges of kidnapping and unlawful transportation of a minor across state lines.
Smart was missing for nine months and found in March 2004 walking on a suburban Salt Lake City street with Mitchell and his now-estranged wife Wanda Eileen Barzee. She has pleaded guilty in the case.
Smart is now 22 and serving a religious mission for The Church of Jesus Christ of Latter-day Saints in Paris.
(Copyright 2010 by The Associated Press. All Rights Reserved.)
The defense said a survey found the public knows less and has fewer prejudices about the case in those areas.
Smart was 14 in 2002 when she was taken from her home at knifepoint. The case drew national headlines during the search and recovery of Smart in Utah and from the local and national efforts to improve child safety that followed.
"This is a case that has been seared into the mind of the community in such a way that this court cannot guarantee its ability to empanel a fair and impartial jury," defense attorneys wrote in court papers.
An April survey by the Survey Research Center at the University of Houston said 92 percent of Utah respondents said they believed Mitchell was either definitely or probably guilty of kidnapping Smart.
The figure was about 34 percent higher than results in Colorado or Kansas, according to survey designer Kent L. Tedin, a Houston professor who conducted similar surveys during the federal prosecution of Oklahoma City bomber Timothy McVeigh.
"The data clearly support the need for a change of venue," Tedin wrote in defense court filings.
Tedin's survey polled about 300 Utahns and roughly 250 residents in both Missouri and Kansas, court papers say. The survey has a margin of error of 6.2 percent.
Kimball is not expected to rule on the venue issue Thursday
Federal prosecutors oppose a venue change, contending a jury pool could be drawn from across the state, including communities some 300 miles from Salt Lake City, where the crime occurred.
"Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain," Assistant U.S. Attorney Diana Hagen wrote in court papers.
Hagen also said much of the pretrial publicity actually favored Mitchell because it referenced questions about his mental competency. Defense attorneys have said they will pursue an insanity defense.
In a parallel state proceeding, Mitchell has been diagnosed with a delusional disorder and was twice deemed incompetent for trial. In March, after a competency hearing, Kimball ruled Mitchell was competent to stand trial.
Mitchell, 56, is facing federal charges of kidnapping and unlawful transportation of a minor across state lines.
Smart was missing for nine months and found in March 2004 walking on a suburban Salt Lake City street with Mitchell and his now-estranged wife Wanda Eileen Barzee. She has pleaded guilty in the case.
Smart is now 22 and serving a religious mission for The Church of Jesus Christ of Latter-day Saints in Paris.
(Copyright 2010 by The Associated Press. All Rights Reserved.)
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