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Concerns that Brian David Mitchell's trial might not finish in Utah were resolved quickly Friday, when the 10th Circuit Court of Appeals lifted a stay just 24 hours after it halted proceedings to consider a defense request.
The stay was issued Thursday by the 10th Circuit in response to a petition for a "writ of mandamus," claiming Mitchell cannot get a fair trial in Utah due to intense pre-trial publicity surrounding the 2002 kidnapping and sexual assault of then-14-year-old Elizabeth Smart.
But the appeals court Friday in a two-page ruling said a writ of mandamus is a "drastic remedy and is to be invoked only in extraordinary circumstances."
The trial will resume at 8:30 a.m. Monday before U.S. District Judge Dale Kimball in Salt Lake City.
The standard for granting a writ of mandamus requires an even greater showing than necessary to obtain a reversal on appeal following a conviction, the 10th Circuit noted.
The court concluded: "Mr. Mitchell has failed to establish his entitlement to the extraordinary remedy of a writ of mandamus."
Last month, the 10th Circuit rejected a similar defense request saying then that the issue was premature.
When the defense refiled their request Wednesday, this time including a transcript of the individual questioning of 46 prospective jurors, they argued most jurors had prejudged Mitchell's guilt or would have trouble voting for a verdict of "not guilty by reason of insanity."
During the questioning process, defense attorneys argued that only three of the 46 were fit to serve on the jury.
But Kimball overruled most objections so long as a juror could agree to base a verdict only on what they heard in court, and to follow the judge's instructions regarding the law.
Court officials in Utah say they expect the trial to pick up where it left off on Thursday, so defense attorneys will present their opening statement to the jury, and prosecutors will then begin calling witnesses.
Ed Smart, Elizabeth's father, said Friday, "We're just grateful that it's moving forward."
A Smart family member has said Elizabeth's mother, Lois Smart, will be the first witness called by prosecutors, followed by Elizabeth's younger sister, 18-year-old Mary Katherine. Elizabeth, herself, now 23, is expected to be the third witness called.
The Smarts were sitting together in court Thursday morning as attorneys picked 12 jurors and two alternates — a panel composed of nine men and five women.
Federal prosecutor Felice Viti then spent about 35 minutes telling the jury about what he called "Elizabeth's nightmare,"— nine months of being raped almost daily by Mitchell, now 57, who kidnapped her at knife point from her home on June 5, 2002.
Following Viti's opening statement, defense attorney Parker Douglas began addressing the jury, but spoke for only three minutes before court clerks alerted Kimball that the 10th Circuit had issued a stay. Court was adjourned, and Kimball sent jurors home.
On Monday, Lois Smart is expected to testify about hiring Mitchell, who called himself Immanuel, to do odd jobs around the Smart's Federal Heights home in November 2001. It was then, investigators say, that Mitchell became obsessed with the notion of kidnapping Elizabeth and making her a plural wife.
Mary Katherine, then 9 years old, was in bed with Elizabeth in the early hours of June 5, 2002, when Mitchell allegedly broke into the house and abducted Elizabeth.
Prosecutor Viti told jurors that Mitchell forced the girl to climb to his camp in the foothills above her home, where his wife, Wanda Eileen Barzee, was waiting.
Mitchell performed a marriage ceremony, then raped Elizabeth, Viti said. "Elizabeth, in tears, fell asleep in the tent in which she was raped," Viti said.
For the next six weeks, Elizabeth was tethered by her leg to a cable strung between two trees. When Mitchell finally removed the cable from the girl's ankle, he kept her from escaping by threatening to kill her and her family, Viti said.
Viti said Elizabeth "decided on a survival strategy" during her first few days at Mitchell's camp.
"She decided she was going to outlive the defendant," Viti said. "She would not do anything to bring harm upon herself, her family or others who the defendant had threatened if she acted contrary to his wishes, his desires."
Viti asked jurors to pay close attention to Elizabeth's testimony about Mitchell's ability to manipulate people to avoid detection and get what he wanted. The request was apparently in anticipation of the defense claiming Mitchell was insane at the time he allegedly kidnapped Elizabeth and during the nine months of her captivity.
The prosecution has the burden to prove Mitchell committed the crimes of kidnapping and sexual assault. But the defense has the burden to prove Mitchell was insane.
Barzee has pleaded guilty and is serving 15 years in prison.