UPDATE: The United States Court of Appeals, 10th Circuit, has just issued it's order denying Brian David Mitchell's petition for change of venue. The Court's order states, "After considering all of the submissions by the parties and the applicable legal authority, we conclude Mr. Mitchell has failed to establish his entitlement to the extraordinary remedy of a writ of mandamus. Accordingly, we deny the mandamus petition, and we vacate the temporary stay of the trial proceedings."
SALT LAKE CITY – As ordered by the U.S. Court of Appeals, 10th District, the parties filed briefs before midnight last night, regarding whether or not Brian Mitchell's petition for mandamus, seeking change of venue, is moot in light of jury empanelment. At this posting, these briefs remain under consideration.
Mitchell's defense counsel argues that the empanelling of the jury (12 seated with 2 alternates) alone is not significant enough for double jeopardy to attach or for irreparable harm to befall the Court in issuing a change of venue.
Mitchell's supplemental brief further argues, "since no witnesses have been called and no evidence has been presented, the trial itself has not begun." The prosecution on the other hand argues that opening statements have been made – the United States gave its opening statement and Mitchell's counsel began his opening statement before the stay was imposed yesterday.
Mitchell's seminal petition seeking change of venue argues that six particular jurors showed actual bias which his attorney claims "prejudged guilt."
But prosecutors counter this, pointing out that "[a]lthough these six jurors were part of the panel of 32 from which the jury was selected, not one of the jurors enumerated in Mitchell’s supplemental memorandum was actually seated on the jury."