Judge denies motion to dismiss Smart case

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SALT LAKE CITY -- A state court judge denied defense attorney's motion to dismiss kidnapping and sexual assault charges filed against the man accused in the 2002 abduction of Elizabeth Smart.

Third District Court Judge Judith Atherton made the ruling on Thursday.

Attorneys for Brian David Mitchell say he doesn't want to be declared incompetent and wants to declare his innocence in court. But they say his inability to do that and having the criminal charges stick causes him anxiety. Defense attorneys told the judge that violates the Utah constitution.

They say in Mitchell's mind, there's nothing worse than keeping him in custody and having people think he's crazy. But prosecutors argued Mitchell has not been treated inhumanely.

The judge agreed and denied the defense's request to dismiss the case.

After the hearing, Ed Smart, Elizabeth Smart's father, said, "For Brian Mitchell to say that he's in cruel punishment in the state hospital, I just am blown away by that because I think he's certainly not getting the treatment he gave Elizabeth."

A state court judge has twice found Mitchell incompetent to stand trial on kidnapping and sexual assault charges. Prosecutors plan to keep the criminal charges pending.

Mitchell is also facing charges in federal court and has undergone at least one psychological evaluation.

Another hearing in federal court is scheduled for next month.

During Thursday's hearing, the judge allowed Mitchell, who is known for outbursts in the courtroom, to stay in a holding cell. His attorneys told the judge, he was aware of the hearing.

Smart was found in March 2003.

E-mail: syi@ksl.com

(Copyright 2008 Bonneville International Corporation. All rights reserved. This material may not be published, broadcast, rewritten, or distributed. AP contributed to this report.) AP Rights & Restrictions

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Sandra Yi and AP


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