Judge opens hearing in Smart case

A hearing to determine what, if any, documents can be sealed in the federal court proceedings of accused Elizabeth Smart kidnapper Brian David Mitchell will be open to the media.

In addition, U.S. District Judge Dale Kimball ruled Monday that court docket entries related to the Smart case be unsealed. Kimball noted in his ruling that before the media, including The Deseret News and Salt Lake Tribune, filed a motion to have the docket entries unsealed, he was unaware of the secret entries.

"The court finds no basis for sealing the docket entries," Kimball said in his order.

Mitchell's lawyers have filed a motion for sanctions to be levied against the U.S. Attorney's Office for not sealing some of the court records.

Friday's hearing is expected to focus on the motion of sanctions as well as wether certain documents, or information within those documents, should be sealed.

Because the majority of the hearing can be done while speaking in general terms without prejudicing Mitchell's right to a fair trial or releasing sensitive information regarding the sexual assaults on Smart, Kimball ruled Friday's hearing would be open to the public with the option of the court to seal parts of the hearing when needed.

"Again, the only basis for sealing a portion of the hearing is to allow the parties to identify to the court specific information contained in psychological reports and other court filings that may prejudice Defendant's rights to a fair trial, the privacy rights of the victim and other alleged abuse victims, and the identities of other patients at the Utah State Hospital. If such information can be presented in a general manner, no portion of the October 30, 2009, hearing will be sealed," Kimball ruled.

Another hearing was scheduled for Nov. 9. During that hearing, Kimball will consider motions by Mitchell to exclude Dr. Michael Welner from testifying at Mitchell's competency hearing when it resumes Nov. 30. In addition, motions to exclude the writings of polygamist leader Ervil LeBaron and testimony from Richard Forbes and Daniel Peterson from the hearing will be considered.

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. Peterson is a religion professor at BYU.

Welner, a renowned forensic psychiatrist from New York City, is expected to be the government's key witness.

Email:preavy@desnews.com