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All along, Brian David Mitchell's defense team has said the man accused of kidnapping Elizabeth Smart could not get a fair trial in Utah.
Out of 46 potential jurors who filled out questionnaires and were interviewed by lawyers from both sides, only three did not draw objections from the defense team — which took issue with jurors who said they already believed the homeless street preacher was guilty or who disagreed with an insanity defense.
After U.S. District Judge Dale Kimball chose a jury pool of 32, the defense refiled a motion with the 10th Circuit Court of Appeals, again saying it could not find a panel of impartial jurors in Utah.
But a Tribune analysis of the more than 160 juror questionnaires from those who were not interviewed before the pool was chosen found 34 more potential jurors who may have met the defense's criteria.
In their questionnaires — which were released by the U.S. District Court on Friday — those jurors did not indicate they believed Mitchell kidnapped Smart and said a verdict of not guilty by reason of insanity could be an appropriate outcome of a trial.
Philip K. Anthony, CEO of DecisionQuest, a nationwide trial consulting firm, said the issue of potential jurors knowing about a case's details before being chosen for a jury is commonplace nationwide.
"There are communities everywhere in which the local people, for whatever reason, know enough about the event that there's a perception that a fair and impartial jury can't be empaneled," Anthony said. "One reality of that observation is that it rarely, if ever, turns out to be true."
He points to cases such as the child-molestation trial of pop star Michael Jackson. The judge had to call in 800 potential jurors but only had to interview 600 before finding an impartial jury, Anthony said.
"It would be pretty rare for either the prosecution or defense to be able to file an appeal solely on the basis on the bias of the community," he said.
Salt Lake defense attorney Clayton Simms agrees but adds that neither side would want a jury that had never heard of the case.
"What you don't want is to eliminate a certain cross-section of the population. You would be getting people who are disconnected from media, who don't watch TV, and who are not engaged in society," he said. "If you live in Salt Lake City and don't know about the Brian David Mitchell case, that may be a concern for both sides."
He says, though, that the defense may be able to challenge the jury selection because some jurors said they believed Mitchell kidnapped Smart but said they could set aside that belief and focus only on trial evidence.
Another grounds for appeal could be the low number of strikes — 11 for the defense and seven for the prosecution — to remove jurors from the pool, Anthony said.
"Most of the cases we work on, it's more like 20 strikes per side; the numbers in the Mitchell trial are a bit lower and more typically are associated with civil cases," Anthony said.
However, he said the likelihood of even that succeeding is "fairly low."