Judge denies defense plea to exit from Smart case

Judge denies defense plea to exit from Smart case

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SALT LAKE CITY (AP) -- A federal judge has denied a request by the federal public defender's office to withdraw from representing the man charged in the 2002 abduction of Elizabeth Smart.

In court papers filed Tuesday morning, defense attorney Robert Steele said the office has a conflict with a witness set to provide testimony about Brian David Mitchell next week. Steele said the unnamed witness was previously represented by the public defender's office.

At a hearing hours later, Steele said that leaves the defense in an ethical quandary because attorneys may need to draw on information that would undermine the former client's credibility.

U.S. District Judge Dale Kimball rejected the request, but acknowledged Steele was acting out "an abundance of caution." Before making a ruling, Kimball ordered a portion of Tuesday's hearing closed to privately hear Steele's specific concerns.

"I'm not letting you out," said Kimball. "I'm ordering you to represent your client."

Mitchell, 56, is charged with kidnapping and unlawful transportation of a minor. His competency is in dispute and a hearing is set to begin Monday.

Federal prosecutors told Kimball they don't expect to call the witness to testify in person, but that information the person provided will be included in the testimony from Dr. Michael Welner, a forensic psychiatrist who has evaluated Mitchell.

Kimball said he had reviewed the individual's federal court file and would limit the scope of questioning or information about the person to that which is already in the public record.

Steele said he had consulted with the Utah State Bar and was advised to bring the issue to Kimball's attention.

In addition to Welner, federal prosecutors have proposed a list of 28 witnesses for the 10-day hearing. They include experts in religion and religious writings, former co-workers, employees of the Utah State Hospital and relatives of Mitchell's estranged wife, Wanda Eileen Barzee, who has pleaded guilty in the case.

The defense has proposed just seven witnesses. All are either mental health experts or care providers who have worked with Mitchell.

Now 22, Smart was just 14 on June 5, 2002, when she was taken from her home at knifepoint and held captive for nine months. In court testimony last month, Smart said she was forced to become Mitchell's second wife in a religious ceremony and then raped.

Smart was recovered in March 2003 after motorists saw her walking a suburban street with Mitchell and Barzee.

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

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