Accused Elizabeth Smart kidnapper Brian David Mitchell was once again removed from a federal courtroom Friday. But after a very short delay, the hearing continued as scheduled.
Mitchell, who along with his estranged wife Wanda Barzee, were indicted by a federal grand jury on charges of interstate kidnapping and unlawful transportation of a minor across state lines, was gagged at his initial federal court hearing before U.S. Magistrate Samuel Alba on Monday, but still created enough of a disturbance that the hearing was continued.
On Friday, Alba again allowed Mitchell in the courtroom to give him the opportunity to listen to the proceedings without creating a disruption.
Wearing a red jumpsuit from the Salt Lake County Jail, Mitchell entered the courtroom under tight security with his eyes closed, his hands and feet shackled and carrying what appeared to be a blank note pad.
After being placed in his seat to wait for the judge to come out, Mitchell began singing the hymn, "Be Still My Soul."
"Is he going to stop or is he going to continue?" Alba asked the defense.
When the judge was informed Mitchell would likely continue his singing, he was removed from the courtroom to be placed in a "lock-up" area where a video camera and microphone broadcast the hearing to Mitchell. Mitchell, however, could not be seen or heard.
"(He) can hear and see everything in lockup going on," Alba said.
Mitchell sat in the room with one of his newly appointed attorneys from the Federal Public Defender's Office.
Once court resumed, Alba entered a "not guilty" plea on behalf of Mitchell, gave prosecutors a week to gather the evidence from the state competency hearing so it could be shared with the judge and defense, and set another hearing for Nov. 12. At that time, Alba is expected to rule on the government's motion for a competency evaluation for Mitchell at a federal facility.
The defense responded to the motion, saying the doctors at the Utah State Hospital who have already evaluated Mitchell were more qualified to make a determination of Mitchell's competency and that any evaluation should be done in Utah and not out of state.
"I absolutely disagree with it," U.S. Attorney for Utah Brett Tolman said, calling Mitchell's three years at the Utah State Hospital "somewhat of a tortured history."
"There has been little if any treatment," he noted.
Tolman said it had been nearly three years since MItchell's last diagnosis and that a fresh evaluation would be beneficial to everyone. He also believed the federal system would do a better job evaluating Mitchell because more resources were available. He added that he believed Mitchell was not incompetent to stand trial.
"No one should assume just because he sings in court he's incompetent," he said.
When asked about Mitchell's behavior once he was removed from the courtroom Friday and placed in a different area, Tolman said he received reports about Mitchell's demeanor and whether or not he continued singing, but declined to reveal what he had learned, saying it might be used as part of his arguments in court.
Ed Smart, Elizabeth's father, is also opposed to Mitchell ever being returned to the Utah State Hospital and hopes that in the coming weeks Mitchell gets to spend some time in a federal facility.
"I think he needs to get out of here. The state facility is too cushy for him. He's got the life. He seemed to be very happy living out in the dirt. Now he's got a facility with all of his meals brought to him. I don't think he should remain here. I think it would be good for him to get a taste of what he's asking for," he said.
Alba also set Dec. 22 for a jury trial as required by federal, although all sides agree that motions will most likely result in that date being pushed back. But Tolman expected the delay to be weeks, not years as was the case in state court.
