Will administering anti-psychotic medication result in a "substantial likelihood" that Brian David Mitchell, accused of kidnapping Elizabeth Smart, will be restored to competency? And what exactly constitutes "substantial" in the eyes of the court?
Those are the two main questions facing 3rd District Judge Judith Atherton as she decides whether doctors can forcibly medicate Mitchell for the purpose of restoring his competency so he can stand trial on charges of aggravated kidnapping and aggravated sexual assault.
Mitchell is accused of kidnapping Smart from her bedroom in 2002 and holding her captive nine months until he and co-defendant Wanda Barzee, his estranged wife, were found walking along State Street in Sandy with the girl and arrested.
The scheduled three-day Sell hearing for Mitchell wrapped up early Tuesday after just 1 1/2 days of testimony. Mitchell's defense still had two psychologists who were scheduled to testify, but Atherton questioned whether they were really relevant to the issue of forced medication since psychologists cannot prescribe medicine.
After consulting with each other, defense attorneys decided not to call the final two witnesses to the stand.
Mitchell did not attend Wednesday's hearing following Tuesday's latest outburst that resulted in his dismissal from the courtroom.
A Sell hearing is named after the U.S. Supreme Court case that set the standard for involuntary medication. For Mitchell to be forcibly medicated, Atherton must find:
• There is important government interest at stake.
• The medication must be "substantially likely" to render the defendant competent.
• Medication is necessary to achieve the result.
• It is medically appropriate.
The sticking point between the prosecution and defense is the definition of "substantial likelihood," for which there are no binding cases offering a legal definition.
Dr. Cynthia Vitko, a psychiatrist and supervisor over the forensic unit at the Utah State Hospital, on Wednesday agreed with Tuesday's testimony from Dr. Paul Whitehead, another psychiatrist and Mitchell's attending physician, that Mitchell suffers from a delusional disorder with grandiose and persecutory features but that she couldn't completely rule out paranoid schizophrenia. She believed there is a 70 percent chance that Mitchell's competency could be restored with medication.
Vitko is also the attending physician for Barzee.
Dr. Jeffrey Metzner, a forensic psychiatrist from Colorado whose specialty is in correctional psychiatry, agreed that if Mitchell were his patient it would be worth trying to medicate him.
"I think it's pretty clear if you don't treat Mr. Mitchell with medication, he's not going to get better enough to be restored to competency," he said.
However, Metzner believes the chance of restoring Mitchell's competency is less than 50 percent even with medication. Because of that, Metzner testified for the defense that under Utah law, Mitchell did not meet the criteria established in Sell even though it may be clinically appropriate.
"It's more likely than not he won't be restored to competency ... but that doesn't mean it can't happen," Metzner said.
Metzner disagreed with both Whitehead and Vitko's estimates of competency restoration between 60 percent and 80 percent with medication. He said the studies on which they based their conclusions are problematic because there simply aren't enough patients diagnosed with delusional disorder to make an informed decision.
Metzner also pointed to the fact that a common side effect of anti-psychotic medication is weight gain, something that might cause "great distress" to the very weight-conscious Mitchell, whom doctors said has not put on any extra pounds since being admitted.
Attorneys for both sides now have until Oct. 26 to submit their final briefs to Atherton arguing the issues of forced medication and "substantial likelihood."
E-mail: preavy@desnews.com