A 3rd District judge ruled Tuesday the competency hearing for accused Elizabeth Smart kidnapper Brian David Mitchell can be open to the public.
Judge Judith Atherton said the key was deciding whether opening the competency hearing would "substantially" compromise Mitchell's right to a fair trial.
"I have no present concerns that we will not be able to seat a jury in this case," she said in her ruling.
Attorneys for Mitchell, 50, argued the hearing should be closed because of the nature of the material expected to be discussed during the competency hearing. Media reports would prejudice a potential jury pool, they argued.
"There is not one case that says the rights of the media should take precedence over the rights of (the defendant)," defense attorney Mark Helm told the court.
His arguments came after both sides met with Atherton behind closed doors for more than an 90 minutes debating what material is so sensitive it would merit closing the hearing.
Smart was kidnapped from her bedroom and assaulted June 5, 2002. She was found in Sandy March 12, 2003, along with Mitchell and co-defendant Wanda Barzee, 58.
Helm called the Elizabeth Smart abduction "probably the most publicized case in Utah history." He said alternatives to closing the hearing offered by attorneys for the media were only good for "what to do after damning information is released.
"It's highly likely it would cause (the public) to pre-judge Mr. Mitchell in ways they wouldn't if it wasn't released," he said.
But Michael O'Brien, attorney for the Salt Lake Tribune, argued there have been many high-profile cases in the past that were not overturned because of pre-trial publicity, including cases involving the Lafferty brothers, the Ogden Hi-Fi murderers, Gary Bishop and Ronnie Lee Gardner.
The majority of the public doesn't follow high-profile cases as closely as those directly involved with them, he argued.
Jeff Hunt, who represents the Deseret Morning News, KSL, The Associated Press and the Society of Professional Journalists, argued it is possible for fair trials and open courtrooms to co-exist.
"Closing the hearing will not stop media coverage of the case," Hunt said. In fact, he said, opening the hearing would probably make the media coverage more accurate.
Mitchell's competency hearing is scheduled for Aug. 31. Two court-appointed doctors have split on whether they believe he is currently competent to stand trial.
Barzee was declared incompetent to stand trial. She is scheduled to be in court next week for a hearing to determine if there is a likelihood that her competency can ever be restored.
E-mail: preavy@desnews.com