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Smarts’ hard drive subpoenaed

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Attorneys for accused Elizabeth Smart kidnapper Brian David Mitchell now want the hard drive from Smart's home computer.

The subpoena this week was the latest in a recent stream of court filings that also included defense attorneys standing behind their earlier requests for Smart's school and medical records.

But Smart's father said the request for the family computer, just like the subpoena's for Elizabeth's records, is nonsense.

"It's silly. It's completely silly. It's ridiculous," Ed Smart said Thursday. "It has no value to the case. I'm disappointed with the defense. I'm amazed. I don't know what they're trying to accomplish."

In the latest subpoena, Mitchell's attorneys requested the hard drives seized from the Smarts' home computer by Salt Lake City police in the days following Elizabeth's alleged abduction on June 5, 2002.

Smart's attorney, Greg Skordas, called the subpoena another "fishing expedition." He filed a motion this week to have the subpoena quashed.

The defense is acting in bad faith by requesting the hard drive which "has no relevance to this case," according to court documents.

The subpoena "is intended solely to harass and embarrass Smart and her family," court documents state. "There is simply no need for them to have these records and there is no reason they can articulate for wanting them other than idle curiosity."

Last week, Skordas filed a similar motion requesting that Smart's school records subpoenaed by the defense be returned because they also had no relevance to Mitchell's defense and a motion to quash another defense subpoena for medical records from Primary Children's Medical Center. Specifically, the subpoena requested an examination report conducted on Smart March 12, 2003, the same day she was discovered walking on State Street in Sandy with Mitchell and co-defendant Wanda Barzee.

The defense team, lead by Kimberly Clark and Vernice Trease, filed its reply this week, arguing the examination records are exempt from physician-patient privilege because they pertain to the sexual assault charges against Mitchell. And even if the records are privileged, disclosure is required under federal and state constitutional rights of due process, according to the defense's response.

The defense also strongly denied that any of its motions were filed in bad faith or done to harass or pressure the Smart family into a plea deal. The defense called the allegation, "absolutely untrue and an irresponsible statement intended to inflame the emotions and passions of this court and the public," according to court documents.

Ed Smart said he's "amazed" at the motions that have been filed this month.

"I don't know what (the defense) is trying to accomplish," he said. "There's no question that Mitchell and Barzee are guilty. I don't know what they're trying to do."

Smart said his anger was balanced by knowing that he got his daughter back and that "(Mitchell) is going to jail."

Mitchell, 51, along 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.

Mitchell's trial was put on hold earlier this month after a second competency hearing for the self-proclaimed street preacher was ordered. The hearing was scheduled for Feb. 15.

Earlier this month, 3rd District Judge Judith Atherton denied a request motion to close the hearing to the public. The order keeping the hearing open was officially typed and submitted to the court this week.

E-mail: preavy@desnews.com