Attorneys argue over evidence in Mitchell hearing

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SALT LAKE CITY -- We could soon have access to more than a dozen previously sealed documents in the case against Brian David Mitchell--the man accused of kidnapping Elizabeth Smart in 2002--including an arrest warrant, letters from the Bureau of Prisons and motions to exclude testimony.

Lawyers for Mitchell, prosecutors and an attorney representing the media discussed the unsealing of court documents before a federal judge Friday afternoon.

Mitchell was not present in court as lawyers told the judge they felt the case should be as open to the public as possible. They did, however, want to make a few minor exceptions, like removing the names of minors and patients before documents were unsealed.

Media attorney Michael O'Brien said there were currently 16 sealed documents and Friday's discussion was a good step forward.

He said, "When we started this whole process there was a lot of talk, buzz, about closing stuff down, and I think that's been turned around."

There was also much discussion about releasing competency reports on Mitchell. The attorneys agreed the reports should be made public to some extent; the question was when.

"Were going to talk to the government and to Mr. Mitchell's lawyers and see if we can work that out," said O'Brien. "And if we can't, then my expectation is we'll file another motion to get those competency reports released as soon as possible."

The defense was concerned their release would hurt Mitchell's right to a fair trial. O'Brien planned to argue that.

Finally, the defense withdrew its motion to impose sanctions on the prosecution for comments made to the public.

Defense Attorney Robert Steele told the court he dropped the motion, believing everybody in the case has "done what they have done in good faith."

The judge accepted that motion.

A federal grand jury indicted Mitchell on charges of kidnapping and unlawful transportation of a minor in March 2008.

Prosecutors contend Mitchell is feigning incompetence to avoid prosecution. According to court documents, a New York forensic psychiatrist hired by the defense diagnosed the 55-year-old Mitchell with a variety of mental disorders, including narcissism, pedophilia and malingering, a condition that suggests he may be exaggerating his illnesses.

Defense attorneys dispute the findings and say Mitchell cannot participate in his own defense.

A federal court competency hearing is set to begin Nov. 30 and last 10 days.

Smart was 14 in 2002 when she was taken from her home at knifepoint. She was recovered nine months later after being seen on a suburban street with Mitchell and his now estranged wife, Wanda Eileen Barzee.

State court charges filed against the couple in 2003 - multiple felonies including kidnapping and aggravated sexual assault - have stalled because both Mitchell and Barzee were twice deemed incompetent for trial.

Two weeks ago, a Utah State Hospital report said Barzee is now competent to stand trial after more than year of forced treatments with psychotropic medications. The finding could move her state case forward.

Barzee also faces a federal indictment, but prosecutors have not moved to begin her prosecution.


Story compiled with contributions from Sarah Dallof , Marc Giauque and The Associated Press.

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