Noting that not all treatment alternatives have been explored, a judge ordered Friday a hearing to determine if Wanda Barzee, accused of kidnapping Elizabeth Smart, meets the criteria to be forcibly medicated in an attempt to restore her competency.
Attorneys believe the so-called "Sell" hearing will be the first of its kind in Utah. An exact date was not set Friday, but the court is looking at Nov. 22 as a possibility.
Barzee, 59, and her husband, co-defendant Brian David Mitchell, 51, were indicted by a state grand jury on charges of aggravated kidnapping, two counts of aggravated sexual assault, two counts of aggravated burglary and conspiracy to commit aggravated kidnapping.
She was ruled incompetent to stand trial in January 2004 and found to still be incompetent during her first review hearing in August 2004.
Barzee's one-year competency review was Friday. Once again, 3rd District Judge Judith Atherton agreed with doctors that Barzee was still incompetent to stand trial.
Unlike her estranged husband in his court appearances, Barzee was quiet and well behaved. She sat between her attorneys, smiled as they conversed and even laughed when a joke was made during a conversation between defense attorney Scott Williams and Atherton.
Dr. Eric Dale Nielsen, a clinical social worker with the state hospital, has twice examined Barzee.
"She has not made reasonable progress to competency," he said, noting that was due in part to her mental illness and her resistance to treatment.
Nielsen said Barzee often gave long rambling answers to questions, was unable to make rational decisions, did not believe it was necessary to defend herself in court, could not testify relevantly and would have trouble providing her attorneys with information.
Of the more than 530 days she has been at the hospital, Nielsen said Barzee had attended therapy sessions less than a dozen times. But even if she attended more sessions, he said he doubted it would help.
In order to send Barzee back to the state hospital for another 18 months, there had to be some finding of progress being made.
"The question becomes, where do we go from here?" Atherton said. "That's the million dollar question: Is there any reasonable progress?"
Atherton said there was not a clear answer because not all treatment possibilities had been explored.
Furthermore, Nielsen said Barzee's diagnosis had changed. He said Barzee did not suffer from shared delusional order any more. Rather, he felt it was more a matter of a thought disorder similar to schizophrenia, a psychotic disorder that can be treated with medicine.
In the respect that a new diagnosis was made, Salt Lake County Deputy District At- torney Clark Harms argued some progress was made.
When asked whether medication may help restore Barzee's competency, Nielsen replied, "Probably."
"There's a better than 50 percent chance medication would help," he said.
Her defense attorney, however, insisted Barzee did not skip out on therapy sessions to manipulate the system. Rather, it was because she does not believe she is ill and thus refused treatment.
Based on the literal "black and white" interpretation of the law, Williams argued Friday his client should no longer be held. That sparked a debate between Williams and Atherton over the legal interpretation of "release."
"That's out of the question. It flies in the face of everything the statute supports. Under no circumstances will I approve her release to the community under these serious charges," Atherton said.
Atherton said if she released Barzee Friday from the state hospital, the only place she would go is back to jail.
Williams noted outside the courtroom, however, that even if the judge had approved his client's release, she still could have held her for seven days to give the state a chance to file for civil commitment.
Rather than release her or send her to jail, Atherton said, "I want to have the Sell hearing" and ordered Barzee back to the state hospital pending the outcome of the hearing.
The hearing's namesake comes from the 2003 case Sell vs. United States in which the U.S. Supreme Court allowed for involuntary medication if four criteria were met: there is important government interest at stake; the involuntary medication will significantly further those important governmental interests; it is necessary to further the state's interest; and it is medically appropriate.
What makes the case unique is that Barzee is not considered a danger to the community. The only reason to restore her competency is so she can stand trial.
Nielsen said once a client is given medication, doctors can usually tell within 30 days if it will have any effect of restoring competency.