Defense seeks delay of hearing in Smart case

Defense seeks delay of hearing in Smart case

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SALT LAKE CITY (AP) -- Defense attorneys are asking a judge to delay a planned Nov. 30 competency hearing for the man charged in the 2002 kidnapping of Elizabeth Smart.

The Thursday request by attorneys for Brian David Mitchell comes after an expert working for federal prosecutors interviewed Mitchell's estranged wife, Wanda Eileen Barzee.

Both Mitchell and Barzee were indicted on federal kidnapping charges in March 2008.

Barzee's competency was also once in question, but Utah State Hospital doctors now say that after more than year of court-ordered treatment she is able to stand trial. Court papers show her attorneys allowed the interview with Dr. Michael Welner.


Defense attorneys are getting a DVD copy of the interview. But in court papers the defense contends that prosecutors said they believe only Welner -- not defense attorneys, the court, nor other case experts -- could use the interview information during Mitchell's hearing.

"As a result ... Dr. Welner will have information that is potentially important to the court's decision concerning competency of Mr. Mitchell, but this information cannot be discussed at the hearing, or even divulged to anyone," defense attorneys wrote.

That leaves the defense unable to adequately cross-examine Welner, court papers say.

In a response filed Friday, the U.S. attorney's office disputes that characterization.

"The use of that interview is something yet to be concluded by the court and counsel," prosecutors wrote.

Even if the information can be used, defense attorneys argue that the late introduction of new material leaves them little time to prepare -- another point prosecutors dispute.

Both sides are expected in U.S. District Court on Monday to argue whether some witnesses should be excluded from testifying. Defense attorneys are trying to block Welner's testimony from the hearing. His evaluation of Mitchell concluded the former street preacher is competent for trial.

Other experts have said Mitchell suffers a delusional disorder and is incompetent.

The motion to continue the hearing also shows that defense attorneys had urged prosecutors to seek "a neutral mental health professional" to interview Barzee in order to avoid any potential complications.

Smart was 14 when she was kidnapped at knifepoint from her Salt Lake City home in June 2002. She was recovered in March 2003 after a motorist saw her walking a suburban street with Mitchell and Barzee.

Mitchell and Barzee have also been charged with multiple felonies in state court. Competency issues have stalled Mitchell's case.

Barzee's state case is expected to move forward now that experts believe her competency is restored. She has yet to be arraigned in federal court.

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

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