Federal judge in Utah hears change of venue arguments in Elizabeth Smart kidnapping case

Defense lawyers for the man charged with kidnapping Elizabeth Smart argued Thursday that the case should be moved out of Utah so he can get a fair trial.

Attorneys for Brian David Mitchell said during a hearing that inflammatory pretrial publicity from news media has tainted the jury pool, and that survey data show potential jurors in states such as Colorado and Kansas have fewer prejudices about the case.

Federal prosecutors argued against a change, saying the case isn't the same as other high-profile cases — such as Oklahoma City bombing trial of Timothy McVeigh — where venue changes have been granted.

It was unclear when U.S. District Court Dale Kimball will rule on the issue.

A former street preacher, the 56-year-old Mitchell is facing federal charges of kidnapping and unlawful transportation of a minor across state lines.

Smart was 14 in 2002 when she was taken from her Salt Lake City home at knifepoint. The case drew national headlines during the search for the missing blue-eyed girl and when she was recovered in March 2003.

"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," Mitchell's federal public defender Parker Douglas wrote in court papers.

A trial could be moved to another court within the jurisdiction of the 10th Circuit Court of Appeals, which includes Denver and Kansas City, Kan., where a survey by a defense expert found the public knows less about the case and has fewer prejudices about it.

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 and Kansas, according to survey designer Kent L. Tedin, a Houston professor who conducted similar surveys during the federal prosecution of McVeigh.

The survey found 70 percent of Utah respondents could identify Smart by name when given some details about the case, compared to 38 percent of Colorado respondents and 33 percent of those in Kansas.

The survey also showed that 83 percent of Utahns believed Smart had been raped while she was held captive, compared to 53 percent of those surveyed in Colorado and Kansas.

"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 Colorado and Kansas, court papers say. The survey has a margin of error of 6.2 percent.

Assistant U.S. Attorney for Utah Diana Hagen dismissed the data as meaningless because respondents were not given specific information about the charges against Mitchell.

Hagen also said most media reports of the case were well-balanced or favored Mitchell because they referenced questions about his mental competency. Defense attorneys have said they will pursue an insanity defense.

In a parallel state proceeding, Mitchell was 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.

Hagen said it was possible to seat an impartial jury because Utah's federal court draws it's pool from across the state, including communities some 300 miles from Salt Lake City.

Hagen also said Kimball could delay a decision on a change of venue until it became clear during jury selection if an impartial panel can be empaneled.

The court has suggested it would begin that process in November by calling as many as 500 individuals for a jury pool.

Smart is now 22 and serving a religious mission for The Church of Jesus Christ of Latter-day Saints in Paris.

(This version CORRECTS Restores background. Corrects to say survey results from Kansas instead of Missouri.)