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Smart subpoenas mystify attorneys

They can’t imagine why defense wants Elizabeth’s records

SHARE Smart subpoenas mystify attorneys
Brian David Mitchell is to have a competency hearing Feb. 15.

Brian David Mitchell is to have a competency hearing Feb. 15.

Associated Press

The latest move by defense attorneys for accused Elizabeth Smart kidnapper Brian David Mitchell has several people scratching their heads.

Earlier this week, subpoenas were served at East High School and Bryant Intermediate School for all of Smart's records dating back to 2001. The subpoenas included requests for the classes Smart took, her teachers, report cards, disciplinary reports and attendance.

"How Elizabeth is doing in school has anything to do with their case is beyond me," said Ed Smart, Elizabeth's father.

Attorney Greg Skordas, who represents Elizabeth Smart, said he was frustrated and offended by the motions and failed to see why the defense would even want them.

"I don't know what to think," he said. "If these defense attorneys can look me in the eye and give me some ethical reason for this, I'll hold my tongue. I can't even fathom what it would be."

Brigham Young University law professor Marguerite Driessen said she too could only guess at the reasons for the request.

"The best spin you can put on this is you have dedicated attorneys who are zealously trying to leave no stone unturned," she said.

Defense attorney Kimberly Clark did not return a call to the Deseret Morning News Thursday.

Regardless of the reasons for the subpoenas, Driessen said the records most likely won't even be admitted in court.

If the defense was trying to attack Smart's character, the records would not be admitted, she said. And if the defense was simply fishing around to see what it could find, "the law doesn't allow unbridled fishing expeditions," Driessen said. "It raises my eyebrows. I'm not seeing anything immediately that it would be relevant to."

Skordas said even if the records were admitted in court, there was absolutely nothing embarrassing to Elizabeth in them.

"They have absolutely no relevancy to the defense in the case. They shouldn't have even been requested. It's very insensitive," he said.

Skordas said he was also frustrated that he wasn't notified of the subpoenas until after the information had already been handed over by the district.

A spokesman with the Salt Lake School District said the district did submit the requested information to the court. Ed Smart was informed first of the requests and given copies of everything given to the court, said spokesman Jason Olsen.

"What they're calling those records in for shouldn't have anything to do with his competency or conviction or trial. Mitchell did what he did, and he needs to be responsible for it," Smart said.

Mitchell, 51, along with co-defendant 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.

They were accused of taking Smart from her Federal Heights home in June 2002. The trio was found in Sandy on March 12, 2003.

Following two singing outbursts in consecutive court appearances, Mitchell is scheduled to have a second competency hearing Feb. 15. He was already declared competent to stand trial once on Aug. 31.

Barzee was found incompetent to stand trial and is at the Utah State Hospital. She has a review hearing scheduled for later this year.

E-mail: preavy@desnews.com