Mitchell Would Have Hard Time Avoiding Trial

Mitchell Would Have Hard Time Avoiding Trial


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SALT LAKE CITY (AP) -- Lawyers for Brian David Mitchell aren't discussing how they'll defend the self-described prophet against charges of sexual assault and kidnapping in the Elizabeth Smart case.

But experts say two options open to Mitchell -- trying to avoid trial through mental incompetence or escape prison by pleading insanity -- will be met by a state legal system generally unkind to both strategies.

Mitchell, whose polygamist writings have become a focus of the case, is accused of breaking into Elizabeth's home last June, abducting her at knifepoint and sexually assaulting her in the hills behind her home.

Mitchell and his wife allegedly kept Elizabeth as Mitchell's second wife for nine months, living a transient lifestyle in Utah and California. They were found March 12 in Sandy, a suburb about 15 miles south of Salt Lake City.

Mitchell's mental state may come up at three critical times in legal proceedings, said Erik Luna, constitutional and criminal law professor at the University of Utah S.J. Quinney College of Law.

Before trial, Mitchell's defense attorneys could ask for a mental competency exam to determine if he's fit to stand trial. At trial, the defense could claim that Mitchell is not guilty by reason of insanity. At sentencing, attorneys could ask for a lighter sentence because of mental illness.

In Utah, the mental competency standard isn't very high, Luna said.

"It's pretty easy to prove someone is competent," he said. "It's nothing more than the individual understanding the consequences if he's found guilty and being able to assist the defense in putting on a case."

There are exceptions. De-Kieu Duy, a woman accused of killing a worker during a 1999 shooting rampage at the Triad Center in Salt Lake, was diagnosed as a paranoid schizophrenic and declared incompetent to stand trial. Last year, a psychologist classified her as "marginally competent," but still unable to stand trial.

A competency exam has not yet been requested for Mitchell, though one could come Tuesday when he is scheduled to appear in court for a routine hearing. A competency exam, which could be requested from either prosecutors or the defense -- could delay a trial by about two months.

District Attorney David Yocom and Mitchell lawyer David Biggs have refused to discuss the case.

If Mitchell is found guilty of his charges -- aggravated kidnapping, aggravated sexual assault and aggravated burglary -- he could spend the rest of his life in prison. However, defense attorneys could ask jurors for a verdict of not guilty by reason of insanity. In Utah, such a strategy is a tough sell.

"Very few attorneys go down that path, because it's so hard to prove," said Janina Chilton, spokeswoman for the state Division of Substance Abuse and Mental Health. "At the state hospital, we've only had two or three on not guilty by reason of insanity. Most are found guilty but mentally ill."

To prove an insanity defense, attorneys would need to claim that Mitchell didn't know he was kidnapping a person against her will. For instance, Chilton said, attorneys might claim insanity if Mitchell thought Elizabeth was an animal or a doll, instead of a person.

Mitchell wrote a dense, 27-page, religious tract that said God commanded him to take seven wives. That information could help prove Mitchell knew he wasn't kidnapping an inanimate object.

"It may not be relevant that he did it because he had some divine command," Luna said. "In other states they are much more lenient about claims of mental illness. But Utah has the bare minimum requirement that the Constitution would allow."

In addition, Mitchell can't claim that Elizabeth wanted to run away with him or agreed to sexual relations, because state law prohibits a 14-year-old from giving consent.

Another problem, Chilton said, is that defendants with strong religious callings sometimes object to an insanity defense.

"A lot of these people don't think they are mentally ill, they truly believe that are getting messages from God and they don't want to plead that way," she said.

Vicki Cottrell, executive director of the National Alliance for the Mentally Ill in Utah, said she's known Mitchell's wife, Wanda Barzee, for years and believes she probably suffers from bipolar disorder and is delusional. Cottrell hasn't spoken to Mitchell.

"In talking to Wanda I know there is no sense in her that she had done anything wrong," Cottrell said. "They thought this was a revelation from God; they were convinced."

If a jury finds Mitchell guilty but mentally ill, his sentence could involve some mental health treatment, along with prison time.

(Copyright 2003 by The Associated Press. All Rights Reserved.)

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