Judge clears way for Smart to testify at competency hearing

Elizabeth Smart will testify Thursday as part of the federal competency hearing of her accused kidnapper, Brian David Mitchell.

U.S. District Judge Dale Kimball on Monday denied a motion by Mitchell's attorneys to prevent all lay witnesses from testifying, thus opening the door for Smart to take the witness stand.

"It's what I expected," Ed Smart, Elizabeth's father, said Monday of the ruling. "I'm sure that's what (Elizabeth) expected, too."

Because Elizabeth Smart is leaving for an LDS mission to Paris before Mitchell's competency hearing was scheduled to officially begin on Nov. 30, she will be allowed to give her testimony early.

The hearing will be the first time that Smart has been in the same room as Mitchell or seen him in person since Mitchell was arrested in 2003. It will also mark the first time she has taken the witness stand in any courtroom in her case.

Smart was abducted from her bedroom in June 2002, when she was 14. She, Mitchell and Mitchell's estranged wife and co-defendant, Wanda Barzee, were spotted walking along State Street in Sandy in March of 2003, just a week after the trio had left Lakeside, Calif. Mitchell and Barzee were arrested and charged both in state court, as well as having a federal indictment filed against them.

In his 16-page decision, Kimball said it was unclear if the defense was concerned about Smart giving her opinion during her testimony or if they were worried about the relevance of it, so he commented on all fronts.

Smart's testimony is relevant because Mitchell won't cooperate with the experts trying to examine him, according to court documents.

"(Mitchell's) refusal to cooperate has made fact evidence from collateral sources necessary to a determination of his competency," he wrote.

As for the argument that Smart's testimony wouldn't be relevant to Mitchell's current state of mind because her last interaction with him was six years ago, Kimball said, "it is well-established that evidence of defendant's prior conduct can give the court a better understanding of defendant's current condition. In addition, the United States has presented persuasive arguments that certain aspects of the crime itself can be relevant to the competency determination."

Kimball later added that the nine months Smart spent with Mitchell "is far more intensive (than the experience of) any of the expert witnesses in this case" with him.