State might seek to medicate Mitchell

Brian David Mitchell, accused of kidnapping and sexually assaulting Elizabeth Smart, could be next in line for a hearing on whether he can be forcibly medicated. His estranged wife, Wanda Barzee, already is the subject of a court battle over the same issues.

Mitchell, who was found incompetent to stand trial in December 2005, will make his return to the courtroom Monday for his one-year review hearing. At that time, doctors from the Utah State Hospital are expected to tell 3rd District Court Judge Judith Atherton whether they believe Mitchell is still incompetent to stand trial or if progress has been made to restore his competency.

The State Hospital filed a competency report on Mitchell with the court a little over a week ago. The report is sealed and its conclusion is expected to be released publicly for the first time Monday in court.

Information about how Mitchell has been doing during his yearlong stay in the hospital is protected, so it's not known whether his courtroom antics of singing and yelling carried over to that facility.

Mitchell and co-defendant Barzee 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. They are accused of kidnapping Elizabeth Smart from her home in June 2002. She was found in Sandy nine months later.

In 2005, doctors at the Utah State Hospital requested a Sell hearing to determine if they could forcibly medicate Barzee. Doctors said they had exhausted all other treatment options except anti-psychotic medication, which Barzee refused to take because she does not believe she is mentally ill.

A Sell hearing comes from the 2003 case Sell v. 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.

In June, Atherton ruled in favor of forcible medication. But Barzee's attorneys appealed the ruling to the Utah Supreme Court, which heard the case earlier this month. The state's high court has not released its decision yet on whether Barzee can be forced to take medication.

Monday, the competency spotlight returns to Mitchell, who at one time had a trial date scheduled in connection with his criminal charges, but it was canceled following continuous outbursts in court and a second competency hearing where he was found incompetent to stand trial.

If the State Hospital reports no progress has been made with Mitchell, and if, like Barzee, he has refused to take medication, the Salt Lake District Attorney's Office may request the second ever Sell hearing in Utah.

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E-mail: preavy@desnews.com