Brian David Mitchell's state court case still on hold

SALT LAKE CITY — In the eyes of the federal government, Brian David Mitchell is a convicted child kidnapper and sex offender. But in state court, he is still mentally incompetent to stand trial.

On Oct. 9, 2008, 3rd District Judge Judith Atherton ruled that Mitchell, who in state court is charged with six felonies including aggravated kidnapping, aggravated sexual assault and aggravated burglary for the kidnapping of Elizabeth Smart and the attempted kidnapping of her cousin, was incompetent to stand trial and not eligible to be involuntarily medicated in an attempt to restore his competency.

The very next day, the federal government and the Salt Lake District Attorney's Office announced they would let the U.S. government go forward with their indictment and put the state case on the back burner.

The state, however, said it's case was only on hold and not dead. They successfully fought a defense motion to have Mitchell's state charges dismissed. Mitchell's state defense team argued that having those charges hanging over their client's head was, "unnecessary and unjustified. These charges cause unnecessary anxiety and concern to an incompetent defendant."

The juxtaposition of one court convicting Mitchell and the other still having him listed as incompetent raises the question of what will happen with the state case?

In a brief message from Ed Smart, Elizbeth's father, he said he didn't know what the district attorney's office was planning.

Paul Parker, assistant Salt Lake County district attorney, said the office has not looked at whether it would revisit the Mitchell case. He said several factors would need to be considered, not the least of which is consulting with the Smart family.

University of Utah law professor and legal analyst Paul Cassell believes the state case will remain unresolved.

"There's no reason whatsoever to pursue a state trial at this point," he said.

When he's sentenced May 25, Mitchell will likely receive two life sentences in federal prison for each of the counts for which he was found guilty.

So why was the federal government able to get a conviction in two years when Mitchell's case became tied up for five years in the state system?

Cassell said one possible explanation was money. The federal government simply had more resources.

But another reason could be that the feds were able to learn from the state proceedings, he said.