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Utah media challenge sealed filings in Smart case

Utah media challenge sealed filings in Smart case



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SALT LAKE CITY (AP) -- Several Utah media outlets, including The Associated Press, have jointly petitioned a federal court judge to open sealed records filed in the Elizabeth Smart kidnapping case.

Documents filed on behalf of the Deseret News, The Salt Lake Tribune, the Utah chapter of the Society of Professional Journalists, the Utah Press Association and the AP contend the public has a compelling interest in court filings related to the charges against Brian David Mitchell, who is charged in Smart's abduction seven years ago.

Filed by attorney Michael O'Brien on Monday in U.S. District Court, court papers say sealing the documents restricts the ability of news organizations to gather and report information in the case.

"Although members of the public may not attend criminal proceedings in large numbers, the news media acts as the public's surrogate in attending such proceedings and reporting to the public, thus educating the public," O'Brien wrote.

He contends the court failed to notify news agencies of its intention to seal some documents, including a report about Mitchell's mental competency filed by the U.S. attorney's office. The case docket, which outlines all court filings and hearings in the case is also incomplete, according to O'Brien.

"The docket in this matter does not even reflect the existence of these sealed motions and memoranda, and unidentified gaps appear in the docket numbering," he wrote.

Media organizations only learned that some sealed documents had been filed after federal prosecutors filed a response to a defense motion and quoted from the competency report.

Defense attorneys for Mitchell have asked U.S. District Judge Dale Kimball to sanction federal prosecutors for that filing because it contained medical information about Mitchell that is protected by privacy laws. Defense attorney Robert Steele has also said a judge's order bars attorneys on both sides from distributing nonpublic case information.

Kimball has set a closed hearing to discuss the issue for Oct. 30. In his motion to intervene in the case, O'Brien seeks to open the hearing to media.

"Denying public access to judicial proceedings or documents preclude public scrutiny of the judicial process, creating an impression of unfairness and secrecy, even though the proceedings may be imminently fair," O'Brien wrote.

U.S. attorney's office spokeswoman Melodie Rydal declined to comment on the media effort to intervene in the case. Steele also declined to comment Tuesday.

Smart was 14 when she was taken from her Salt Lake City home in 2002 at knifepoint in the middle of the night. She was found nine months later walking with Mitchell and Wanda Eileen Barzee, his now estranged wife, on the streets of a city suburb.

Mitchell, a one-time itinerant street preacher and self-proclaimed prophet, and Barzee were charged in the abduction in state court. Mitchell has twice been deemed incompetent for trial, delaying his prosecution.

In 2004, Utah media organizations successfully fought to keep competency proceedings for Mitchell open in the state court system.

A federal grand jury indicted Mitchell and Barzee last year on charges of kidnapping and unlawful transportation of a minor. A 10-day competency hearing is set for Nov. 30.

Smart testified in federal court on Oct. 1 that Mitchell raped her daily and forced her to use drugs and alcohol.

According to O'Brien, media organizations have standing to appear in any criminal proceedings for the purposes of opposing the closure of records or hearings.

"This rite of access has a time-honored history, rooted in the acknowledgment that the open court fosters and protects important societal values," he wrote.

(Copyright 2009 by The Associated Press. All Rights Reserved.)

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Jennifer Dobner Writer

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