High court: Barzee to be forcibly medicated

Published: Friday, Dec. 14 2007 3:42 p.m. MST

Doctors at the Utah State Hospital have been given the green light to forcibly medicate accused Elizabeth Smart kidnapper Wanda Barzee.

Friday, the Utah Supreme Court issued its opinion that 3rd District Judge Judith Atherton's ruling allowing forced medication will stand. The state's high court voted 3-2 in favor of upholding Atherton's ruling in a 52-page opinion. Chief Justice Christine M. Durham and Justice Ronald E. Nehring dissented.

Barzee, 62, and her estranged husband, co-defendant Brian David Mitchell, are charged with kidnapping and sexually assaulting Smart in 2002. Three times she has been ruled incompetent to stand trial. Doctors at the Utah State Hospital say they have tried everything to restore her competency except anti-psychotic medication, which she refuses to take.

On June 21, 2006, Atherton ruled Barzee met the four criteria set in Sell v. United States and could be forcibly medicated. Barzee's defense team quickly filed an appeal with the state's highest court, which agreed to hear the case on Dec. 6, 2006. Attorney Scott Williams argued that Atherton's decision was not supported by the evidence presented in court.

For Barzee to be forcibly medicated, Atherton had to find that she met the four criteria set in Sell vs. United States. Those criteria included:

• Important governmental interests were at stake.

• Involuntary medication would significantly further those interests by being "substantially likely" to restore the defendant's competency.

• The medication would substantially unlikely have side effects.

• Anti-psychotic medication is medically appropriate.

Both Durham and Nehring believed the second point, that anti-psychotic medication would make it "substantially likely" that Barzee's competency would be restored, was not supported by the evidence presented in court.

"I believe the district court did not properly weigh all of the evidence presented within the framework of this high burden. Instead, the court ignored the testimony of the defense experts," Durham wrote in her opinion. "Proper balancing does not simply require a court to pick one expert or one side to defer to ... "

Durham noted that she "did not doubt that medication is the appropriate medical treatment for Ms. Barzee." She went on to write, however, that, "This court is not charged with determining what is best for Ms. Barzee from a mental health standpoint ... Unless the State's interest is highly likely to be furthered by the intrusion upon Ms. Barzee's liberty, this court cannot allow the State to forcibly medicate her ... "

In the majority opinion written by Justice Matthew B. Durrant, however, the justices determined that Atherton's ruling based on the evidence was not "clearly erroneous."

"The issue of whether medication is substantially likely to render Ms. Barzee competent to stand trial ultimately involves a disagreement among experts," Durrant wrote.

"Ultimately, the district court was faced with complicated and conflicting expert testimony," he wrote. "The district court ... did not ignore the defense experts' testimony, but carefully weighed and reviewed all of the evidence."

Ed Smart, Elizabeth's father, said Friday he was pleased with the high court's decision.

"I'm glad the right thing happened," he said. "Barzee, and hopefully Mitchell to follow, should be forcibly medicated. It's the right thing. There's no guarantee it'll make a difference, but it's a step in the right direction," he said.

Smart said he left a voice mail message for his daughter, who was busy taking her finals at BYU, on Friday telling her of the news. He said he talked with her a couple of days ago about the upcoming decision.

"Certainly she wants to see them held accountable for their actions," Ed Smart said.

A spokesman for the Department of Human Services said his office and doctors at the Utah State Hospital would first review the Supreme Court order and talk to the Utah Attorney General's Office in order to formulate a plan on how to proceed with Barzee.

In 2006, when Atherton first ruled Barzee could be forcibly medicated and before the decision was appealed, former Human Services spokeswoman Carol Sisco said that did not mean doctors would not tie her to a gurney and force medications on her. A first step would be to have a discussion with Barzee and let her be part of the process, let her decide whether she would be more comfortable taking the medication orally or through injection.

If she still refuses, Sisco said doctors would have the option to take more forceful measures. Once doctors begin administering medication, it will still take several weeks to several months to determine which medication is most effective.

A ruling from Atherton on whether Mitchell can forcibly medicated is still pending.

Salt Lake Deputy District Attorney Alicia Cook said prosecutors were pleased with the decision.

"I think it is the correct decision," she said, while noting the DA's office was ready to move forward.


E-MAIL: preavy@desnews.com

Get The Deseret News Everywhere

Subscribe

Mobile

RSS