A 3rd District judge on Friday granted a new competency hearing for accused Elizabeth Smart kidnapper Brian David Mitchell — who had to be removed from the courtroom when he wouldn't stop singing a Christmas hymn.
Mitchell was led into the court wearing a tan jail jumpsuit and orange shoes, with his hands handcuffed behind his back and his legs shackled.
After he sat down next to his attorneys, Mitchell began singing "O Come, O Come, Emmanuel." Mitchell sang for 41 seconds in the otherwise silent courtroom before Judge Judith Atherton said, "That's enough, Mr. Mitchell."
Atherton then had Mitchell removed from the courtroom. He continued singing as Salt Lake County sheriff's deputies took him back to his holding cell.
"He sings well," Atherton commented before continuing with the hearing. "He got the words right on."
When the hearing resumed, defense attorney Vernice Trease argued that Mitchell's competency needed to be re-evaluated because of firsthand observations made by co-counsel Heidi Buchi and Jennifer L. Skeem, Ph.D., a forensic psychologist hired by the defense to examine their client.
Mitchell was ruled competent to stand trial on Aug. 31. But Skeem, not one of the court-appointed psychologists assigned to the case, had a meeting with Mitchell at the Salt Lake County Jail on Oct. 29 and decided her initial evaluation, which found him competent, needed to be updated, Trease said.
Trease told the court that she could not give specific examples of why Mitchell needed his competency to be looked at again without violating attorney-client privileges. She only noted that his "reasoning was more strongly driven by his delusions."
Mitchell, 51, along with co-defendant and wife, Wanda Barzee, 59, were indicted by a state grand jury Sept. 4, 2003, charged with aggravated kidnapping, two counts of aggravated sexual assault, two counts of aggravated burglary and conspiracy to commit aggravated kidnapping.
Those indictments were kept sealed until Sept. 1, a day after Mitchell, a self-proclaimed prophet who called himself Immanuel, was ruled competent to stand trial. Barzee was found incompetent to stand trial earlier this year and is currently at the Utah State Hospital. Mitchell's 12-day trial is scheduled to begin in February.
Atherton sternly questioned the defense's motion for a new competency hearing, noting that she could not make a ruling based on hearsay and that the case had already been delayed seven months for the first evaluation.
"There have been exhaustive psychological evaluations of this defendant," she said. "We have hundreds of pages of psychological evaluation. We're not at square one. We've been through this an extended period of time."
Nevertheless, Atherton granted a new competency hearing for Jan. 6 and 7, based on Buchi's observations and Mitchell's conduct in court Friday.
But Atherton strongly warned the defense that if Mitchell was found competent a second time then she would proceed with the case immediately, starting with a flurry of defense motions filed in October requesting, among other things, that the jury be sequestered.
"These are simple motions that should take little to no argument," she said.
Atherton did reject a defense motion for the court to adopt the defense's reasons why Mitchell was found competent as opposed to the order written by prosecutors.
Atherton scolded the defense for filing six motions Wednesday under seal and gave Mitchell's attorneys 10 days to provide information on why the motions should remain sealed.
"This court is open," she said sternly.
The defense filed a total of eight motions Friday, but only two of them were open.
"The court is clearly showing her impatience (with the defense)," lead prosecutor Kent Morgan told reporters outside the courtroom.
As for whether prosecutors were also growing impatient with the latest delay, Morgan said, "Justice can wait. But justice can't wait forever."
Despite the re-examination of Mitchell's competency, Morgan said he still expected to go to trial Feb. 1. For now, he is willing to wait to make sure everything is done right the first time.
"We think that we'll do everything we can not to try this case twice," he said.
As for the timing of Mitchell singing on a day the judge was to rule on whether to grant a new competency hearing, Morgan would only say that Mitchell chose to sing when he wanted to sing.
"We have been arguing that he is competent to stand trial for some time. Those sorts of behavior changes are not something that convinces me that someone is not competent to stand trial," he said.
Mitchell's defense team was surrounded by reporters as they left the courtroom, but each attorney refused to say a word as they walked down the hall. As they walked, Buchi put her arm around one of Mitchell's daughters who attended the hearing.
E-mail: preavy@desnews.com