Another hearing to determine whether Brian David Mitchell, accused of kidnapping Elizabeth Smart, is competent to stand trial appears to be on the horizon.
During a status conference in U.S. Magistrate Samuel Alba's courtroom Thursday, defense attorneys revealed that Mitchell, who was sent to a federal facility in Springfield, Mo., late last year to be evaluated by a court-appointed doctor, was found to be incompetent.
However, the government's key witness for the upcoming competency hearing, Dr. Michael Welner, from New York City, recently completed his research of Mitchell, which included interviewing the self-proclaimed prophet, and concluded in his 205-page report that Mitchell was competent to stand trial.
"It's rather interesting," Alba said of the lengthy report.
Both the prosecution and defense are now trying to work out a game plan for the competency hearing, including how long it will likely last and how many witnesses should be called.
Both sides anticipated calling witnesses from Mitchell's state competency hearing. Prosecutors believe the hearing will last at least 10 days, though the defense is hoping for fewer. But Welner was anticipated to take several days on the stand for his testimony, according to prosecutors. Dr. Noel Gardner, who twice found Mitchell competent to stand trial during each of his two state competency hearings, was also expected to take a couple of days on the stand, prosecutors said.
Alba gave attorneys until Aug. 10 to file motions, and he set another hearing for Aug. 17, at which time he hoped to name the dates for the competency hearing.
"We couldn't even tell you about the (estimated) length (of a competency hearing), because we disagree so drastically about the scope of the hearing," said defense attorney Bob Steele.
Based on schedules, there were indications Thursday that the hearing might not be until November.
"I think the lines are clearly drawn," Steele said of the attorneys' positions heading into the competency hearing. "It's a good legal issue. I don't think it's any different than it was in the state."
Steele acknowledged Mitchell's federal case could proceed through the court exactly as his state case has. He called the situation of "serial competency litigation" unique in Utah.
Smart's father, Ed Smart, was outside the federal courthouse after Thursday's hearing. He said he had full confidence in Welner, noting that he believed the nationally renowned forensic psychiatrist had done the most through report on Mitchell ever. Smart acknowledged Welner had spoken with his daughter, as well as many other people, in determining whether Mitchell was competent.
"He has looked at this case in ways others haven't," said Ed Smart, who believes Mitchell is competent to stand trial.
"Mitchell knows what he's doing," he said. "I think he puts on his song and dance number (in court), and as soon as he goes, it stops. It's purely an act."
Even if Mitchell is found incompetent, he would likely be institutionalized for the rest of his life. Ed Smart said that for safety insurance, however, he'd like to see a criminal conviction. He said he fears Mitchell would convince someone that he has reformed and changed, like he did when he was arrested for burglary and vandalism misdemeanors in Lakeside, Calif., during the time Elizabeth Smart was missing.
"If he ever gets out, he'll do it again," Ed Smart said. "He's a sex offender now … he needs to be labeled as such."
Ed Smart said his ultimate hope would be for Mitchell to "step up to the plate" and admit he's guilty.
Also Thursday, Ed Smart made a public plea for U.S. Attorney for Utah Brett Tolman to remain on the Mitchell case, at least through the end of the competency hearing, if not the entire case, even if President Barack Obama appoints another U.S. attorney to replace Tolman. The Obama administration is currently going through the process of picking new U.S. attorneys in some states, a common practice with new administrations.
"We're really hoping the president or attorney general will let Tolman finish out this case," Ed Smart said.
Mitchell and his estranged wife, Wanda Barzee, are accused of kidnapping and sexually assaulting Elizabeth Smart in 2002. The then-teenage girl was missing for nine months before being found safe in Sandy in 2003. Barzee was found incompetent to stand trial in state court and was ordered to undergo involuntary medication in an effort to restore her to competency.
