Media seek to unseal Mitchell documents

Calling his case "an event of substantial local and national public interest," local media outlets, including the Deseret News, have requested documents filed in the federal court case of Brian David Mitchell to be unsealed.

The News, along with the Salt Lake Tribune, the Associated Press and the Society of Professional Journalists, collectively referred to as the media intervenors, filed a memorandum in federal court Monday asking that a sealed motion from Mitchell's lawyers to exclude Dr. Michael Welner from testifying at Mitchell's competency hearing, and one calling for sanctions to be levied against the U.S. Attorney's Office for not sealing its court filings, be opened to the public.

Mitchell, accused of kidnapping Elizabeth Smart and taking her across state lines for the purpose of having sex, is scheduled to resume his federal competency hearing on Nov. 30. Welner, a renowned forensic psychiatrist from New York City, is expected to be the government's key witness when Mitchell's competency hearing resumes.

Prosecutors and defense attorneys have filed a flurry of documents in court in recent weeks over the issue of what documents should be sealed and what ones should be made public.

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.

U.S. District Judge Dale Kimball has scheduled a closed-door hearing on Oct. 30 in an attempt to settle the issue. The court must decide where to "draw the line" between public access and protecting "sensitive medical information," Kimball said in court documents.

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 media argued that despite several high profile cases in Utah over the years, (such as the Lafferty brothers, Ronnie Lee Gardner and Gary Bishop), "a Utah appeals court has never reversed a guilty verdict as a result of pretrial publicity."

In documents filed Monday, the media argued that unsealing the defense's motions would not prejudice Mitchell's right to a fair trial and that denying assess to the documents raises "significant issues of public concern" regarding the public's right to know about judicial proceedings, according to court documents.

"Even more troubling, these sealed filings do not appear on the docket for this case in any fashion," the media intervenors say in court documents.

The media intervenors are also asking Kimball to open the Oct. 30 hearing scheduled to discuss these issues.

e-mail: preavy@desnews.com