Mitchell outburst gains him trial delay

Defendant in Smart case spurs new debate over his competency

Deseret Morning News/January 7, 2005
By Pat Reavy

Another vocal outburst and another delay in the court case of accused Elizabeth Smart kidnapper Brian David Mitchell.

And Mitchell's scheduled Feb. 1 trial is now off as the court continues the debate over the mental competency of the self-proclaimed street preacher.

Mitchell's hearing Thursday was delayed more than an hour and 20 minutes because he refused to come out of his Salt Lake County Jail cell.

Third District Judge Judith Atherton faxed an order to the jail that required Mitchell be brought to court.

Within 30 seconds of arriving in court, Mitchell was dismissed after he loudly began chanting a Bible verse.

"Repent for the kingdom of Heaven is at hand," Mitchell said after being led into the courtroom. He repeated the passage from Matthew 3:2 twice before bailiffs removed him.

Mitchell could still be heard chanting the verse loudly as he was led to his echoing holding cell outside the courtroom before there was a "boom" sound, like a heavy door shutting, and then silence.

Mitchell, 51, along with co-defendant and wife Wanda Barzee, 59, were indicted by a state grand jury Sept. 4, 2003, charged with aggravated kidnapping, two counts of aggravated sexual assault, two counts of aggravated burglary and conspiracy to commit aggravated kidnapping.

Barzee, who has filed for divorce, was found mentally incompetent to stand trial and is currently at the Utah State Hospital.

During Mitchell's last hearing on Dec. 3, he was removed from the courtroom after singing the Christmas hymn "O Come, O Come, Emmanuel." He was allowed to sing for 41 seconds before being escorted out.

Sitting in the courtroom Thursday three rows behind Mitchell were the parents of Elizabeth Smart Ed and Lois. It was the first time Lois Smart had attended any of Mitchell's hearings and the first time she had seen him since his arrest.

"I had a huge knot in my stomach," Smart said outside the courtroom following the hearing. "It was difficult to see him. I had a knot in my stomach thinking my daughter had to be with him for so long."

As for Mitchell's latest outburst, Smart called it "inappropriate" and questioned whether he was really mentally incompetent or if it was simply part of a calculated act.

Ed Smart said the behavior was probably something that could be expected during every future court proceeding.

Once the hearing resumed, Atherton rejected another attempt by the defense to close Mitchell's competency hearing. Atherton ruled Aug. 3, 2004, that Mitchell's first competency hearing would be open to the public, noting that his right to a fair trial would not be "substantially compromised" by an open hearing.

Defense attorney Mark Helm argued Thursday that new information had come up since the first hearing that would prejudice any potential jury pool. He said the information was developed through conversations the court evaluators had had with Mitchell and through Mitchell's own writings. Helm said it was information the public would not forget.

"You are going to remember the big things," he said. "That's exactly what we're talking about here. Big prejudicial things."

Helm argued that the public remembers details about cases over time and tried to flamboyantly make his point by asking everyone in the courtroom if they remembered the color of O.J. Simpson's Bronco during the infamous low speed chase?

Helm argued the hearing needed to be closed because the media would taint jurors with embellished stories. Several times he referenced an unnamed media source referring to Mitchell as "Osama Bin Laden."

"The job of the media is not to ensure a person gets a fair trial," he said. "Their job is to sell subscriptions."

He argued that constitution- al rights should not be given up for the "sake of a good story."

"You will not find one single case that freedom of the press should take precedence when the person accused of a crime, their rights to a fair trial are in jeopardy, and we believe they are," he said.

Attorney Jeff Hunt, who represents several media organizations, including the Deseret Morning News, disagreed and said the argument was off course.

"It's not the media's First Amendment right, it's the public's," he said. "We're not here to talk about a good story."

Hunt said the issue was not the media covering the case but rather what evidence would be presented during the hearing. And he said the defense had failed to produce any new evidence that would call for the hearing to be closed or deprive Mitchell of a fair trial.

Part of the so-called new information the defense was referring to was dialogue that "happens in every criminal case," Hunt said. The public would not be surprised by it and would probably not even remember it, he said.

After Atherton rejected the defense motion to close the hearing, the hearing was nevertheless delayed because Dr. Stephen Golding was not able to submit his evaluation report in time.

Golding was ordered to complete his evaluation by Feb. 7 and the competency hearing was rescheduled for Feb. 15 and 16. A new trial date was not announced pending the outcome of the second competency hearing.

Dr. Noel Gardner did submit his report, and Atherton noted that he had again found Mitchell competent to stand trial.

Mitchell was initially ruled competent to stand trial Aug. 31. A second hearing was ordered after the defense insisted that his evaluations needed to be updated due to recent behavior and after Mitchell burst into song in court.