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Mitchell defense team files for acquittal

Mitchell defense team files for acquittal

By Pat Reavy | Posted - Nov. 16, 2010 at 5:54 p.m.



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SALT LAKE CITY — Defense attorneys for Brian David Mitchell, accused of kidnapping Elizabeth Smart, filed a motion Tuesday for their client to be acquitted, claiming prosecutors failed to show "sufficient evidence" that proved their case "beyond a reasonable doubt."

Specifically, defense attorneys claim prosecutors, who rested their case Tuesday, failed to prove beyond a reasonable doubt that Mitchell transported Smart across state lines for the purpose of having sex.

"To the contrary, the evidence suggests that the sexual activity, while foreseen by Mr. Mitchell, was incidental to the primary purpose of the trip," the defense wrote in its motion.

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Mitchell is facing a two count indictment in federal court; kidnapping and illegally transporting a minor across state lines.

Defense attorneys say in order for count two of the indictment against Mitchell to be proved, prosecutors must prove beyond a reasonable doubt that "a significant, or dominant, or motivating purpose of the travel from Utah to California was that Elizabeth Smart would engage in illegal sexual activity."

Smart testified that she was raped almost daily by Mitchell after being kidnapped, the defense argued.

"To put it bluntly, Mr. Mitchell had no need to travel outside of Utah for the purpose of engaging in sexual activity with Ms. Smart," the defense wrote.

Mitchell's main purpose in going to San Diego was to find additional wives and get to a warmer climate, the defense argued. They also contend that Smart's near discovery at the Salt Lake City Library by a police officer who stopped and interviewed Mitchell did not provide any additional motive for Mitchell to leave Utah, which he had already planned to do before the library encounter.

In their response filed late Tuesday, however, prosecutors contend "it is not necessary for the government to prove that the sexual activity was the sole purpose for transporting Elizabeth Smart from Utah to California."

It's possible for a person to travel across state lines for several reasons, prosecutors argued, "and each may prompt, in varying degrees, the act of making the journey."

Smart testified that Mitchell told her one of her duties as his "wife" was to have sex with him.

"Miss Smart testified that he forced her to California, and that the defendant expected her to be his wife in California, and that her responsibilities as his wife in California included having sex with the defendant," prosecutors argued.

Within 24 hours of their arrival to California, Smart was raped.

"This evidence clearly shows that illegal sexual activity was either a significant or dominant or motivating purpose for the travel to California. The evidence is clear that the defendant intended to treat Miss Smart as his "wife" in California, which treatment included raping and otherwise sexually abusing her," the government wrote in court papers.

U.S. Judge Dale Kimball is expected to make a ruling on the defense's motion.

E-mail: preavy@desnews.com

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Pat Reavy

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