Elizabeth Smart Trial to|Stay in Utah, Court Rules

SALT LAKE CITY (CN) - The Elizabeth Smart trial will remain in Utah, the 10th Circuit ruled Friday, less than 24 hours after the trial came to an abrupt halt during opening arguments so the federal appeals court could consider the defense's request for a new venue.

Attorneys for accused kidnapper and rapist Brian David Mitchell argued that extensive publicity had tainted the jury, and that the 12 jurors and two alternates selected to hear the case had already assumed their client's guilt.

They sought a court order, or writ of mandamus, forcing the presiding judge in Utah to transfer the case to another venue.

But a three-judge panel of the federal appeals court in Denver said Mitchell can receive a fair trail despite a barrage of pretrial coverage in Utah following Smart's 2002 abduction.

Federal prosecutor Felice Viti completed his opening arguments detailing the government's case against Mitchell on Thursday morning. But defense attorney Parker Douglas was abruptly halted three minutes into his opening by U.S. District Judge Dale Kimball, who ordered a temporary stay of proceedings while the 10th Circuit considered the defense's request to move the trial.

An agitated Kimball told the court, "I am of course very unhappy with this. I have to do what the 10th Circuit says. I don't know what they'll do when they consider it, but for today we're in recess for this matter. I'm very sorry."

In their two-page order, Judges Deanell Tacha, Timothy Tymkovich and Jerome Holmes wrote: "After considering all of the submissions by the parties and the applicable legal authority, we conclude Mr. Mitchell has failed to establish his entitlement to the extraordinary remedy of a writ of mandamus. Accordingly, we deny the mandamus petition, and we vacate the temporary stay of the trial proceedings."

Mitchell faces felony kidnapping, sexual assault and burglary charges for allegedly abducting Smart, then 14, from her bedroom in June 2002. A self-proclaimed prophet, Mitchell allegedly had a "revelation from God" to kidnap Smart.

After repeated delays due to questions about Mitchell's competency, Judge Kimball ruled in March that Mitchell was competent to stand trial. Kimball agreed with the prosecution's expert witness, Dr. Michael Welner, that Mitchell is an "effectively misleading psychopath."

"The court agrees with Dr. Welner that Mitchell's singing in court is a contrivance to derail the proceedings and create the false impression that he is unable to control his behavior," Kimball wrote in his 149-page ruling.

Mitchell was once again removed from the courtroom Thursday morning for singing Mormon hymns.

His wife, Wanda Barzee, pleaded guilty earlier this year and was sentenced to 15 years in prison for her role in the kidnapping. Listed as a potential witness for the defense, Barzee may testify against Mitchell.

The trial is scheduled to reconvene Monday, Nov. 8 at 8:30 a.m. in Salt Lake City.

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