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Thursday
Nov042010

Appeals court halts trial of Elizabeth Smart kidnapping suspect

Salt Lake City, Utah (CNN) -- A federal appeals court halted the trial of a man accused in the 2002 kidnapping of Utah teenager Elizabeth Smart just as it got under way Thursday in order to review the defense's request to move the trial outside the state.

Brian David Mitchell, 57, is charged with snatching then-14-year-old Smart at knifepoint from her family's Salt Lake City home early on June 5, 2002.

On Wednesday, Mitchell's attorneys filed a petition with the 10th U.S. Circuit Court of Appeals in Denver, Colorado, asking it to force the federal court to move his case outside Utah -- and to halt the trial while it considered that request. The court agreed to the request for a stay Thursday. The appeals court denied an earlier change of venue motion, filed October 26, as premature.

The decision Thursday did not appear to sit well with U.S. District Judge Dale Kimball, who said he was upset as he left the courtroom.

The defense was making its opening statement when Kimball was given a piece of paper and immediately called for a conference with attorneys. Kimball told jurors a legal issue had arisen and they would be excused, although not dismissed entirely. He told jurors he did not expect them to return before next week.

The defense wanted the issue addressed, said defense attorney Parker Douglas, but "we think this is horrible timing," referring to the fact that opening statements were under way. He said the defense is concerned and saddened that the appeals court waited so long to issue the stay.

No hearing date has been set, according to the court clerk's office, and one may not be, as the court may rule based solely on the motion.

Mitchell faces federal charges of kidnapping and transporting a minor across state lines for improper purposes.

In the months that followed Smart's disappearance, her anguished parents, Ed and Lois, became a familiar sight in the media as they continued to plead for their daughter's safe return.

But no one expected what happened in March 2003, when Smart was found walking down a street in the Salt Lake City suburb of Sandy in the company of Mitchell and his wife, Wanda Eileen Barzee.

Mitchell, a drifter and self-described prophet who called himself Emmanuel, had done some handyman work at the Smarts' home.

Utah prosecutors charged Mitchell with six felony counts of kidnapping, sexual assault and burglary. But in July 2005, a Utah district judge ruled him incompetent to stand trial, leaving him in custody at the Utah State Hospital.

The state case against Mitchell was put on hold when federal authorities stepped in. A grand jury in 2008 indicted Mitchell and Barzee. Judge Kimball in March found Mitchell competent to stand trial.

Barzee, 64, pleaded guilty in federal court in November 2009 to kidnapping and unlawful transportation of a minor and was sentenced in May to 15 years in federal prison. She also pleaded guilty but mentally ill in state court to conspiracy to commit aggravated kidnapping in an attempt to kidnap Smart's cousin a month after Smart was kidnapped. She was given a sentence of one to 15 years, to be served concurrently with the federal sentence and given credit for the seven years she had spent in custody.

As part of her plea agreement, Barzee agreed to cooperate in the state and federal cases against her husband. However, her name does not appear on a witness list filed by federal prosecutors -- and does appear on a list of witnesses filed by the defense.

Smart, her mother and her younger sister, Mary Katherine -- who was sleeping in the room with Smart the night of the kidnapping and was the only witness -- all appear on the prosecution's witness list.

Mitchell's attorneys earlier attempted unsuccessfully to move his trial, saying it should be held outside of Utah because publicity in the case had prejudiced the pool of potential jurors against him and jeopardized his right to a fair trial.

Defense attorneys in July said in court documents that they intend to utilize an insanity defense and intend to introduce expert testimony relating to an alleged mental disease or defect.

Now 22, Smart testified as part of Mitchell's competency hearing last year that after taking her -- still dressed in her red pajamas -- from her home, Mitchell took her to a wooded area behind her home and performed a mock marriage ceremony with her before sexually assaulting her. She testified he repeatedly assaulted her during her months in captivity, and that he and Barzee took her to California before returning with her to Utah.

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