Hearing Oct. 30 in Mitchell document fight

A federal judge has scheduled a closed-door hearing for Oct. 30 in an attempt to resolve an ongoing dispute over what documents relating to a competency hearing for Brian David Mitchell should be sealed.

In an order filed this week, U.S. District Judge Dale Kimball agreed in part with prosecutors that defense attorneys for Mitchell, who is accused of kidnapping Elizabeth Smart, had "selectively chosen to file documents under seal without a court order," according to court records.

Kimball said the matter deserved a full court hearing, particularly because there were some issues that were still unclear.

"The issue of whether documents relating to (Mitchell's) competency to stand trial should be, and to what extent they should be, under seal is not precisely clear from the court's initial review," the judge wrote.

The court must decide where to "draw the line" between public access and protecting "sensitive medical information," Kimball said in his order. He cited Timothy McVeigh and the Oklahoma City bombing case as an example of another high-profile incident that put special demands on the trial court and required a standing order regarding whether documents should be made public.

In August, defense attorneys for Mitchell filed a motion to exclude Dr. Michael Welner from testifying at Mitchell's upcoming competency hearing.

Welner, a renowned forensic psychiatrist from New York City, is expected to be the government's key witness when Mitchell's competency hearing resumes in late November. Welner's 200-plus-page report is considered by some to be the most extensive study on the defendant to date.

"The motion was filed under seal, despite the fact that the defendant had not obtained an order from this court permitting the filing under seal," the U.S. Attorney's Office responded in court documents.

Mitchell's defense team has also filed a motion to exclude the writings of polygamist leader Ervil LeBaron and testimony from Richard Forbes and Daniel Peterson from the hearing. Forbes is a former head investigator for the Salt Lake County District Attorney's Office and was one of the lead people who worked on the murder investigation and subsequent conviction of LeBaron, who ordered the killing of Rulon C. Allred, the leader of another polygamist sect. Peterson is a religion professor at BYU.

None of the responses that the U.S. Attorney's Office has filed in Mitchell's case has been sealed. Last week, defense attorneys filed a motion, again under seal, requesting sanctions against the government for not sealing their responses. Mitchell's attorneys say prosecutors have violated a court order limiting the release of "non-public information," according to court documents.

"Again, the defendant's motion was filed under seal without an order from this court permitting such a filing," prosecutors responded in court records. "A party cannot unilaterally elect to file a court document under seal in either a civil or criminal case."

The government countered on Tuesday by filing a motion calling for Mitchell's motion for sanctions to be unsealed.

"On-the-record findings" must be made by the court that show sealing the motions outweighs the public's right to view them, prosecutors argued. By sealing the motion, defense attorneys may have violated "court rules, the public's common-law right of access and possibly the First Amendment, as well," prosecutors said in court documents.

The Deseret News, the Salt Lake Tribune and the Society of Professional Journalists also plan to oppose the closure of the defense motion to exclude Welner's testimony.

e-mail: preavy@desnews.com