SALT LAKE CITY — Prosecutors and defense attorneys for Brian David Mitchell, accused of kidnapping and sexually assaulting Elizabeth Smart, believe they have reached, or are close to reaching, agreements on many defense motions filed earlier in federal court.
During a brief hearing Wednesday, the U.S. Attorney's Office and Mitchell's lawyers told U.S. District Judge Dale Kimball they did not currently need him to make rulings on six motions. But should their negotiations reach a stalemate, they still wanted him to be ready to step in.
Among the issues considered Wednesday are whether expert witnesses during Mitchell's upcoming trial can be prohibited from stating an opinion or inference as to Mitchell's mental state at the time of the crime; whether all mention of Mitchell's failed plea bargain negotiations during his state court proceedings in 2004 can be banned from his federal trial; whether all evidence of prior sexual abuse allegedly committed by Mitchell can be excluded from his federal trial; whether opinions and findings in regard to competency as evidence can be excluded; whether evidence concerning misconduct by any member of Mitchell's defense team can be excluded; and whether all witnesses providing testimony are subject to in-person confrontation and cross-examination by the defense, thus excluding hearsay evidence.
In working out agreements to these points, U.S. attorney Diana Hagen agreed expert witnesses "can't use veiled hypotheticals" to talk about Mitchell's mental state, can't repeat testimonial hearsay and witnesses cannot speculate on anything Mitchell may or may not have said to them.
The issue that still seemed to have an unclear resolution was the one about prior plea-deal negotiations. While prosecutors agreed they could not admit conversations between Mitchell and his attorneys as evidence, it wasn't clear whether statements made to mental health professionals would be admissible.
Mitchell, who was ruled competent to stand trial, sang hymns when he was brought into the courtroom Wednesday, as he has for every court proceeding over the past several years. Kimball told him he had a right to stay for the proceedings as long as he didn't disrupt them.
"Apparently, he's going to waive that right," Kimball said as Mitchell continued to sing.
He was led out of the courtroom to a back room.
Earlier this week, Kimball ruled that when questionnaires are sent out to prospective jurors, they will include the question, "Do you know what will happen to Defendant if the jury reaches a verdict of not guilty by reason of insanity? Yes or No. If yes, please explain what you think will happen."
Prospective jurors will also be asked whether they will be able to not think about what will happen to Mitchell if such a verdict is reached, and whether they could find him not guilty by reason of insanity if that's what the evidence shows.
"This court is in a position to allow questions that can demonstrate potential biases or beliefs that could improperly influence a proper verdict. This court sees no harm in determining up-front whether there are" potential jurors who believe a verdict of not guilty by reason of insanity would result in Mitchell being set free, Kimball ruled. "If a potential juror cannot follow the court's instructions to disregard the consequences, that juror should not serve on the jury."
Kimball said that the time to find out if any biases exist among potential jurors was during the questionnaire process.
Mitchell is accused of kidnapping Smart in 2002, sexually assaulting her and taking her to California before returning to Utah, where he was spotted and arrested. Mitchell's estranged wife and former co-defendant, Wanda Barzee, struck plea deals in both her federal and state court proceedings earlier this year. She was sentenced to 15 years in federal prison for her role in Smart's kidnapping, and one to 15 years at the Utah State Prison for the attempted kidnapping of Smart's then 15-year-old cousin. The sentences were to run concurrently.
Mitchell's federal trial is scheduled to begin Nov. 1.
e-mail: preavy@desnews.com