Government questions Brian David Mitchell's insanity defense

SALT LAKE CITY — The U.S. Attorney's Office has questions about Brian David Mitchell's expected insanity defense during his upcoming trial and has requested a pretrial conference to talk about it.

Mitchell, 56, accused of kidnapping and sexually assaulting then-14-year-old Elizabeth Smart in 2002, is scheduled to go to trial in federal court on Nov. 1.

Mitchell was found competent to stand trial earlier this year. Last week, however, Mitchell's defense attorneys filed a notice of intent saying they would seek an insanity defense.

In their reply filed Wednesday, prosecutors noted that in order for a defendant to claim insanity, a severe mental illness must be present at the time of the alleged crime which, as a result, made the defendant "unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense," according to the statute.

The defense also said it intends to call to the stand during Mitchell's trial expert witnesses who also testified during his federal competency hearing in 2009.

The government questions that, however, noting that while the reports from those expert witnesses may offer an opinion as to whether Mitchell suffers from a mental illness, they do not offer an opinion as to whether Mitchell knew at the time of his alleged crime that what he was doing was wrong.

"The United States is concerned that the defense intends to solely rely on the experts' existing reports, which do not include any opinion regarding the necessary linkage between the mental disease or defect and the defendant's inability to appreciate the nature and quality or the wrongfulness of his acts," according to court documents.

Prosecutors say a pretrial conference addressing this issue will "promote a fair and expeditious trial." They also want Mitchell present during the pretrial to make sure he is aware that his attorneys are seeking an insanity defense.

"Several courts have held that a competent defendant may choose to forego a defense of insanity," prosecutors said in court documents.

Mitchell and his estranged wife, Wanda Barzee, are accused of kidnapping Smart and holding her captive for nine months, taking her to southern California for part of that time, before the trio was spotted in Sandy in 2003.

After years of treatment at the Utah State Hospital, Barzee was found to be competent this year to stand trial and entered into plea deals in both her state and federal cases.

Barzee was sentenced to 15 years in federal prison, with credit for the seven years she has already spent in custody, and one to 15 years in state prison. Part of the condition of her plea deal was that she is expected to cooperate with the prosecution in Mitchell's upcoming trial, possibly testifying against him.

Mitchell's attorneys also have filed a request for a change of venue for the upcoming trial of the high-profile case. Prosecutors were expected to file their response to that motion Friday.

e-mail: preavy@desnews.com