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Mitchell’s lawyers want jury restricted

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Brian Mitchell

Brian Mitchell

Among a flurry of otherwise routine defense motions filed Friday in the case of Brian David Mitchell, who is accused of kidnapping Elizabeth Smart, was one not often seen in a Utah criminal case. His attorneys asked the judge to sequester the jurors during what is estimated to be a three-week trial.

Calling the Salt Lake teen's June 2002 abduction "probably . . . the most covered case in the history of the state of Utah," Mitchell's court-appointed attorneys said they expect the scheduled February trial to generate similarly intense, and possibly prejudicial, coverage.

"Given the media attention to date, it is a virtual certainty that Mr. Mitchell's trial will generate daily stories on every television station and newspaper in the country, if not the world," the motion says. "There is simply no way, without sequestration, that the court can adequately protect jurors and Mr. Mitchell from the level of coverage in this case."

Sequestration of jurors is virtually unheard of in Utah, with jurors in even the most high-profile cases — such as the 1974 Ogden Hi-Fi Shop murders — still allowed to return to their homes at night.

However, in the March 1988 capital murder trial of Ralph LeRoy Menzies, jurors were sequestered after two were disqualified, one received an anonymous telephone call about the case and another succumbed to emotional distress.

Brigham Young University law professor Marguerite Driessen said Friday's motion, although unusual, is one she would have made if she were defending the case.

"You don't get the requests very often, but I'm not surprised by this request," Driessen said. "It's an extremely high-profile case. And, frankly, when it's this high profile, you're more likely to see a request granted."

Though sometimes called for, she said, the practical implications of sequestering a jury can be onerous and expensive.

"Sequestration is fairly difficult if you've got a trial that you think is going to take a long time, because you essentially have to put the jurors up in a trial and control any outside influences," Driessen said.

And Mitchell's attorneys have asked for some fairly strict controls, such as the removal of Bibles and other religious texts from jurors' hotel rooms. The motion also seeks to restrict their presence in public areas, such as churches and restaurants, where defense attorneys fear they could be inadvertently exposed to discussions about the case.

Defense attorneys on Friday also offered a proposed written questionnaire to screen potential jurors as to what impact, if any, pre-trial publicity has had on their opinion of the case.

In what is perhaps the most publicized criminal trial in history, jurors sitting in judgment of O.J. Simpson were sequestered for 265 days prior to acquitting him of charges of killing his ex-wife and another man in June 1994.

Also Friday, Mitchell's defense team filed an objection to the grand-jury process, which led to a Sept. 3, 2003, indictment charging the 50-year-old street preacher with aggravated kidnapping, two counts of aggravated sexual assault, two counts of aggravated burglary and conspiracy to commit aggravated kidnapping.

Mitchell's wife, Wanda Barzee, faces identical charges in connection with Smart's disappearance. The couple was arrested after being discovered walking along a Sandy street with Smart in March 2003.

Another Friday motion asks that the two cases be tried separately. Barzee, 58, has been ruled mentally incompetent to stand trial. Her case has been put on hold while officials try to restore her competency.

Prosecutors allege Mitchell abducted Smart from her family's home at knifepoint on June 5, 2002, and held her captive in the Salt Lake foothills for several months. Defense attorneys asked Friday for a court order allowing them to inspect the alleged camp, as well as the Smarts' Federal Heights home.

Salt Lake County District Attorney David Yocom said there were no surprises in the Friday filings, to which his office has until Nov. 15 to file formal responses.

"They are fairly routine motions, and we'll respond to them in due time," Yocom said. "They're nothing we're concerned about."

Defense attorneys Friday also filed motions to:

Allow Mitchell to appear during pretrial hearings and during the trial in civilian clothing.

Allow Mitchell to appear in public without shackles.

Preclude uniformed police officers from attending the proceedings and to limit the "show of force" in the courtroom.

And to suppress evidence of prior convictions.

The defense also asked for an order that would prohibit Smart's family and friends from "sitting directly before the jury, showing emotion in the courtroom or otherwise engaging in conduct that could impact on the fairness of the proceedings."

Ed Smart, Elizabeth's father, told the Deseret Morning News Friday that the courtroom is sure to be full of emotion during the trial.

"I think it's absolutely right the jury has an opportunity of seeing what kind of nightmare it was and what he put us through. Not being able to see that would be an injustice," he said. "You think of the whole nine months, tell me one thing that has been just or fair to the victim or the family? There hasn't been."

E-mail: preavy@desnews.com; awelling@desnews.com