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News Organizations Seek Open Hearing in Smart Case

News Organizations Seek Open Hearing in Smart Case

Posted - Jan. 1, 2004 at 10:19 a.m.



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SALT LAKE CITY (AP) -- A hearing has been set for Monday on news organizations' petitions to have competency hearings for the man accused of kidnapping Elizabeth Smart remain open to the public.

Attorneys for Brian David Mitchell had asked the hearings be closed, and a judge agreed. Third District Judge Judith Atherton will hold a hearing Monday on the petitions asking the hearings be open.

Mitchell, 50, Wanda Barzee, 57, are charged with aggravated kidnapping, aggravated sexual assault and aggravated burglary in the June 5, 2002, abduction of the then 14-year-old girl, who was found in their company nine months later. The news organizations also are seeking to have the competency hearings for Barzee kept open.

Mitchell's attorney, David Biggs, argued that Mitchell's right to a fair trial would be jeopardized if competency hearings were open.

Jeff Hunt, attorney for the Deseret Morning News, KSL-TV and the Utah Headliners Chapter of the Society for Professional Journalists, argued in a memo Wednesday that Briggs had failed to show that media coverage would hurt Mitchell's right to a fair trial.

"It is Mitchell's burden to demonstrate that closure is proper under the rigorous constitutional standard applicable to this case," Hunt wrote. "That burden requires Mitchell to show, in more than conclusory fashion, that the presumptive right of public access will pose a substantial risk to his right to a fair trial and that no less restrictive alternatives will protect that right."

Michael Patrick O'Brien, attorney for The Salt Lake Tribune, also filed court papers Wednesday, arguing that the Utah Supreme Court has held in previous cases that there is a constitutional right of access to mental competency hearings in criminal cases unless closing them will preserve a "higher value."

He also has cited a number of high-profile Utah cases in which competency hearings remained open.

(Copyright 2004 by The Associated Press. All Rights Reserved.)

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