Mitchell defense seeking restrictions

The defense for accused Elizabeth Smart kidnapper Brian David Mitchell filed a motion Wednesday asking a judge to restrict what prosecutors can tell witnesses.

The motion filed in 3rd District Court requests prosecutors not be allowed to tell witnesses what other witnesses have said when prepping them for court.

The defense plans to invoke the exclusionary rule during trial, according to court documents, which says witnesses cannot be in the courtroom while other witnesses are testifying.

"Exclusion of a witness would be meaningless if the prosecution was allowed to prepare its witnesses or inform them as to what others had testified," the defense said in court documents.

Invoking the exclusionary rule is not uncommon in court cases. A motion restricting attorneys from telling witnesses what other witnesses are saying is unusual because it's a practice generally observed already by the Salt Lake District Attorney's Office.

Wednesday was the deadline for Mitchell's defense to file any rebuttals to the objections filed by prosecutors Nov. 15. The objections were filed in response to a long list of motions the defense filed Oct. 15.

Among the motions being contested is one requesting the extremely rare step in Utah of sequestering a jury during Mitchell's scheduled 12-day trial in February.

The recent filings also set up a showdown in Judge Judith Atherton's courtroom Friday where many questions are expected to be answered, including whether Atherton will grant the defense's request for additional mental competency evaluations for their client.

Mitchell, 51, and co-defendant and wife, Wanda Barzee, 59, are accused of kidnapping and assaulting Smart from her home June 5, 2002. They were found in Sandy March 12, 2003.

Mitchell and Barzee were indicted by a state grand jury Sept. 4, 2003, with aggravated kidnapping, two counts of aggravated sexual assault, two counts of aggravated burglary and conspiracy to commit aggravated kidnapping. Those indictments were kept sealed until Sept. 1, 2004, a day after Mitchell was ruled competent to stand trial.

Barzee's case is on hold while she is treated at the Utah State Hospital. Earlier this year, she was found to be incompetent to stand trial.

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E-mail: preavy@desnews.com