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Mitchell’s attorneys want state charges dropped

But the state isn’t ready to give up on its case

SHARE Mitchell’s attorneys want state charges dropped

Although accused Elizabeth Smart kidnapper Brian David Mitchell is currently being prosecuted by federal officials, the state says it isn't ready to throw in the towel on the case.

"We don't think the case is dead," Salt Lake deputy district attorney Alicia Cook said Friday.

But Mitchell's defense attorneys say otherwise.

Earlier this week, Mitchell's attorneys filed a motion in 3rd District Court for the state kidnapping and assault charges against the self-proclaimed prophet to be dropped. Because it's unlikely Mitchell will ever be restored to competency, and because it's unlikely he'll ever be freed but rather civilly committed to an institution the rest of his life, according to his attorneys, they say the charges against him should be dismissed.

"Allowing criminal charges to remain is unnecessary and unjustified. These charges cause unnecessary anxiety and concern to an incompetent defendant," Mitchell's defense team wrote in court documents.

A scheduling conference was held Friday in Judge Judith Atherton's courtroom. Mitchell, who was recently ordered by a federal magistrate to undergo a mental evaluation in a federal facility, was not present. Cook said she believed he had been transferred to the federal facility in Springfield, Mo., to have his evaluation conducted. Defense attorney Heidi Buchi, however, said she would like her client to be present for future hearings.

The state now has until Jan. 9 to reply to the motion to dismiss. The defense has until Jan. 23 to add a rebuttal. Both sides are scheduled to present their arguments in court Feb. 26.

Mitchell and his estranged wife Wanda Barzee are accused of kidnapping Smart in 2002. Both were found incompetent in separate state court proceedings to stand trial. But while Atherton agreed to have Barzee involuntarily medicated, she did not rule the same for Mitchell.

After the decision was made not to forcibly medicate Mitchell, the U.S. Attorney's Office, working in conjunction with the district attorney's office, decided it was time for them to begin prosecution of their case. A grand jury indicted both Mitchell and Barzee in March on charges of interstate kidnapping and unlawful transportation of a minor across state lines.

In November, a U.S. magistrate ordered that Mitchell be sent to a federal facility for a mental competency evaluation.

"What occurs in one case doesn't dictate or bind what happens in another," Cook said.

Cook admitted, however, that Mitchell cannot be held indefinitely within the state system. At some point the state will either have to move ahead with charges or have him civilly committed.

Defense attorneys, however, see the moving of Mitchell's case from the state to the federal system as the state's way of conceding it has reached a dead end.

" ... If the state had disagreed or seen fault with this court's findings, they would have appealed. Instead ... (prosecutors) have simply decided to seek what they believe will be an easier forum," according to court documents.

The defense goes on to argue that, "this court is not required to waste any more of its time and effort for the sole purpose of acting as a safety net in the unlikely event that the prosecution in federal court proves unsuccessful."

E-mail: preavy@desnews.com