Mitchell sentenced to life behind bars for kidnapping Elizabeth Smart
Laura Seitz, Deseret News
Editor's note: The following includes an unofficial transcript of much of the sentencing hearing for Brian David Mitchell. Tweets of the hearing can be viewed @DNewsCrimeTeam.
SALT LAKE CITY — Brian David Mitchell will live out the remainder of his days behind bars.
U.S. District Judge Dale Kimball sentenced Elizabeth Smart's kidnapper and tormentor to life in federal prison Wednesday. A jury convicted Mitchell last December of abducting Smart early in 2002 when she was 14 and taking her across state lines for the purpose of having sex.
"Today is the ending of a very long chapter and the beginning of a very beautiful chapter for me," Smart said following the sentencing. "I am so thrilled with the results that came out today, the life sentence. I couldn't be happier."
Smart spoke directly to Mitchell during the hearing for the first time since being held captive for nine months eight years ago.
"I don’t have very much say to you. I know exactly what you did, and I know that you know what you did was wrong and you did it with a full knowledge of that," she said.
"I want you to know that I have a wonderful life now. No matter what you do, you will never affect me again. You took away nine months of my life that can never be returned. But I know that in this life or the next you will be held responsible for what you have done, and I hope you're ready for that when it comes."
Mitchell, 57, sat singing hymns while Smart spoke to him and did not acknowledge her.
Prosecutor Felice Viti pushed for the strongest penalty possible for the man who claimed he had a revelation to "plunder" young wives between ages 10 and 14. Mitchell, he said, conceived the plan to kidnap and sexually abuse young girls.
In issuing the sentence, Kimball called it "heinous and degrading" set of facts and circumstances that lasted for nine month. "It's horrible, unusual for this type of crime," he said.
Viti asked the judge to push Mitchell's sentence to life based on several factors, though Mitchell's courtroom behavior was not one of them.
Mitchell wasn't cooperative with evaluators who compiled his pre-sentence report, which Viti argued caused an obstruction that would justify a heavier sentence.
In considering the sentence, the judge also considered age of victim, length of time held, use of dangerous weapon and sexual exploitation and abuse.
Mitchell waived his right to be in the courtroom during the first part of the sentencing hearing. After attorneys argued about what the sentence should be, Mitchell was brought into the courtroom in order for Smart to address him.
He was singing, "O Come O Come Emanuel" as he entered and he continued to sing hymns with his eyes closed throughout the rest of the hearing. He wasn't singing as loudly as he had in the past during the trial.
"It is a measure of justice for Elizabeth," said U.S. Attorney Carlie Christensen, who said she felt Mitchell received an appropriate sentence that will ensure he doesn't similarly harm anyone else again.
"This is a great day for the Smart family," said FBI Special Agent in Charge Jim McTighe.
Felice Viti said that in his years as a prosecutor, he has "never met a more poised, dignified or special person than Elizabeth Smart. ... I just thought, 'Good for her. She finally had an opportunity to face'" her kidnapper.
Smart's grandmother, Dorotha Smart, said she loved being able to see her children "rise to the occasion and band together. She said she attended most of Mitchell's hearings, except for those where her granddaughter detailed the abuse she suffered.
"I was very confident Judge Kimball would come to this conclusion. It's not a surprise to me," she said.
Defense attorney Parker Douglas said he didn't want to comment about the judge's decision, but said the life sentence was expected.
"I’m happy there's closure for Elizabeth and that all this can be over with," said Mitchell's stepdaughter, Rebecca Woodridge. She visited him in jail Tuesday and asked him if he wanted to write any statement. He didn't want to. "He said, the world isn't ready for what I have to say."
She said he believes he'll never serve a life sentence because the world will either end or he'll get out of prison early. He believes "the Lord will save him and that he will be set free at the hands of the Lord," she said.
Ed Smart spoke to reporters after the hearing, thanking all those who "helped bring Elizabeth home" and Mitchell to justice.
"I would once again like to express my gratitude to everyone who ever prayed for me, searched for me ... or made an effort to bring me home," Elizabeth Smart said. "I am deeply deeply grateful, truly from the bottom of my heart to everyone and for the outcome today."
Smart reminded reporters that Wednesday is National Missing Children's Day and encouraged everyone to pray for missing children.
"Miracles can happen and they still happen today. It's been a huge miracle in my life that I am here standing today," she said.
Asked how she felt when she addressed Mitchell in court, Smart said she was "happy for the opportunity to say what I felt i needed to say."
"I told Brian David Mitchell today that whether he received his just sentence here on earth ... one day he will have to be responsible for his actions," she recalled.
"In regards to how I felt about him not paying attention to me (in court), it didn't make a difference to me. He made up his mind to what he wanted to do. I said what I needed to say."
Smart said she was happy this day finally arrived.
"Right now my life is wonderful. I just recently returned home from serving a full-time LDS mission. I couldn't have loved that experience any more than I did. I'm excited to continue to work in child advocacy ... finding future ways to stop and prevent" kidnappings or sexual crimes against children, she said.
Here is an unofficial transcript of much of the hearing (it is still being updated:
Judge Kimball enters courtroom at 2:31 p.m.
Judge Kimball: Good afternoon. We're back here in the matter of U.S. v. Brian David Mitchell. The United States is represented by Felice Viti, Diana Hagan and Alicia Cook. The defense is represented by Mr. Parker Douglas, Robert Steele and Wendy Lewis.
For the first part of the hearing, the defendant's presence is waived. Let's begin with you telling me whatever you need to tell me about the sentencing factors. I read all your papers and before you begin, it's better if you come to the mic and speak because there are people in room 140 (annex).
Steele: I will speak up. We are asking that you consider the medical records we have provided when designating him. We've also provided a cover letter to date for those not a part of today's hearing, but I want to get it attached along with the pre-sentence report to go to the (unknown). There's only one factor that can fairly … It's the one we've been asking all along and that's about Mr. Mitchell's mental health and everyone has heard plenty about that and that, until about six months ago …
Kimball: Mr. Douglas.
Douglas: I'm happy to address the questions the court has. I would respond just briefly to arguments the government made and then answer any question the court has first regarding the obstruction argument. The guideline clearly says in its present form it has to be related to defendant's conduct or related conduct. The government hasn't made any arguments that it meets in addition to that.
Kimball: What about attempted obstruction?
Douglas: The government hasn't asked for an enhancement on attempted obstruction.
Kimball: That doesn't prevent me…
Douglas: I know it doesn't I know you're read our memorandum carefully and what we have here come even close to the 5th Circuit and other cases the government cites. The second thing I would point out is we 're talking about a procedure where the government moved for a competency finding. We were put in the (unknown) case of having to respond to a competency finding. We worked very closely with the court as your honor is well aware to set up a procedure where this defendant had a track record of atrocity. … To make it as least invasive as possible. ..We want to think we accomplished that.
Kimball: What about the defendant's refusal to cooperate with interviewers and the like, isn't that a form of obstruction?
Douglas: I don't know what Mr. Mitchell was doing. I think if we would talk about silence and refusal to cooperate and they were talking about something that runs very close to the fight to be screaming silent. I think we would run close to that.
Douglas: This is a case where given the history where what we would still respectfully say is that in relation to history … social personality disorder we were faced with having to deal with somebody who specifically had problems with the court process. We dealt with that the best we could. Obstruction is very specific thing your honor. It goes to witness tampering in … government. We have attempted obstruction of evidence we have nothing that rises to that except whet you just mentioned. I think it would be a travesty to make a finding that refusal to talk to some evaluators amounted to obstruction. He was present. We helped him be present and he was present. I don't know how to put it any more boldly than that
Kimball: Anything else?
Douglas: Not on that. I would rest on what I've said in … I think it could go either way. I think in the trial we saw Ms Barzee and Mr. Mitchell acting in concert 12 or more years before the event took place on a vulnerable victim. I think the court is also looking at facts that go to upward departure for extreme and heinous conduct. I could be wrong if pointing to other conduct, but the law for vulnerable victim is clear that if the factors for the … guidelines take into the account the specific characteristics we're talking about. The papers takes into account the age of the victim, the length of time that Ms. Smart was held under (code number) that Mr. Mitchell used a dangerous weapon is taken into account and the sexual exploitation, an abuse under (numbers) that coupled with the case laws, which had the government cautioned at least on vulnerable victim doesn't constitute upward departure for heinous conduct. Frankly we are looking at conduct that is reprehensible. We never argued against it this was horrible conduct whether a vulnerable victim applies, though, it’s another matter I don’t think it can be double counted like I just said. I don't think the government … the enhancement that you would assume it’s a vulnerable victim its inapplicable. The Denny Shafer case does not help the government even though the kidnapping is on ongoing offense Mr. Mitchell chose this victim just once. This is horrible conduct. It is. We never said anything to the contrary in opening. ...
Kimball: Thank you, thank you Mr. Douglas.
Viti: Thank you your honor, I will press my remarks in the order in which Mr. Douglas raised the issues and what I will do is just focus on the objection that, with respect to the obstruction of justice argument, the defendant argues that it should not be applied.
Your honor, quite frankly, the U.S. failed to make this argument that the defendant's conduct does not rate
The defendant is arguing that the only our response to such argument is that it is illogical. Taking that argument to that extreme, if the defendant purges himself or purges himself, all accounts of which committed after the completion of the charge for which he is caused.
Kimball: What is the obstruction conduct?
Viti: It's what your honor found. All the evidence, which was presented during the competency hearing, during the trial.
The defended committed affirmative acts that tended to give image of incompetency, and he did so with the intent of obstructing judges.
Exhibits the antithesis of being preoccupied with religious nature. This court with its specific finding that the appearance of this defendant was designed to derail the proceedings.
All he had to do was strategically preset a prophetic personal in the courtroom and medical center at any time that the thought he would be under.
Kimball: The federal case was not stalled much, the other proceeding prior to state proceedings were stalled.
Viti: We are not asking the court to enhance the sentence for anything occurring during this trial. We are not asking for any of that. For that enhancement to be based on his in-court conduct during the trial, just we are asking the court to find it based on what you have already found.
Finally this court found that the competency order that the evidence demonstrates a pattern of behavior that the defendant has done everything possible to delay a trial.
Finally the defendant argues that it was the United States that delayed these proceedings, because it was the U.S. that moved for these competency hearings. The response to that is that the U.S. responded to the conduct, which this court has characterized.
With respect to the organizer leader the defendant states that Wanda Barzee acted with the defendant.
Your honor heard the testimony of Ms. Smart and Mrs. Barzee, and after careful evaluation of the testimony, their testimonies and many of these addressing the defendant's intention that it was Ms. Barzee that prompted him to carry out this plan. I would note that her encouragement came only after he had convinced her.
Viti: Equal partner in crime in the fact that individuals acting in concert should not mitigate the enhancement if did, then members of the conspiracy conspiracy or others … devising the executing of this plan demonstrate that the two level enhancement for his role applies. You have any questions, your honor?
Kimball: I don't.
Viti: With respect to the vulnerable victim enhancement, the defendant contends that for the purpose of this, the enhancement should be vulnerability at the time of the conduct. That's because the defendant created this vulnerability. It doesn't apply … it was only after the offenses that the defendant acted to render Ms. Smart vulnerable since the kidnapping is a contributing circumstance. This conduct didn't make her more vulnerable to the crime of kidnapping. Recall what the defendant did to Ms. Smart before detective (unknown) confronted him in the Salt Lake City Library in the summer of 2002 and the reasons Ms. Smart gave for not talking to (the detective). If not for the defendant's actions to that day ,the kidnapping of Ms. Smart ends that day. Let's say Elizabeth meets the characteristics that make her vulnerable to the time of the offense. With that in mind, we turn to circumstances of interstate transportation of a minor committed in October 2002. This was after four months in captitivty but for the defendant's conduct to that point, we submit the defendant can't commit that circumstance of transportation of a minor if the defendant is coerced and made vulnerable in the commission of that crime.
Kimball: The transportation?
Viti: Yes sir. The defendant also argues that finding Ms. Smart vulnerable under the man act tragic circumstances that are attendant to many man act violations the victim run across many of these characteristics
Alcohol, drugs, coming from an unstable home. It doesn't render them vulnerable as a class. (The court) needs to remember a few things about the Scott case. The court did find … of vulnerable victims based on personal characters of that victim who was small, fragile and naïve. It did focus on personal traits of that particular victim not asking Ms. Smart to be vulnerable based on her membership in a particular class, but what was brought on during the nine-month period that the defendant held her captive. The defendant argues at leagth that the victims conduct cannot render a victim vulnerable. Dethman dissects and analyzes and comments on the cast the government cited, but in all of this he cites no case favoring the proposition that the defendant cannot create a vulnerability. Consider the following scenario: You have an individual in Indian country who is dining with a woman and in the corse of dinner slips a date rape drug in her drink. He takes her home and rapes her. Is there any doubt his conduct renders her vulnerable? That's exactly what this defendant did. The defendant distances himself a little from the facts cited in the government's brief in the (unknown) case. For example, what appeared to be severe to the enhancement, the defendant humiliated the victim on prior occasion. The defendant humiliated Ms. Smart like in (the case). It was the defendant who humiliates her. The defendant notes the 5th Circuit .. case that was cited .. enhancement based on the fact that the victim was a prisoner in a penal institution and was dependent on the care of corrections officers. (The victim) was victimized by those officers. Wasn't the 14- and 15-year-old Ms. Smart dependent on him for nine months? … The corrections officers … left that victim vulnerable for the enhancement just as this defendant took the affirmative step of tethering Ms. Smart to that tree with consistent abuse and threats, leaving her vulnerable to the crime of kidnapping and interstate transportation. In that case, the doctor based the enhancement on the .. vulnerability of the victim. … The 10th and 9th circuits all upheld the vulnerability.
Viti: The last point is nowhere. Has the defense mentioned that the vulnerable victim enhancement includes conduct that is relevant conduct that is the not the offense of conviction. The … even is if we accept in that moment that the vulnerability must exist that the time of the defendant's conduct, since the defendant's conduct during that nine months he held her captive made her vulnerable to aggravated sexual abuse. I don't think anyone doubts the … sexual abuse is not relevant … would ask the court to continue to follow. He kidnapped her and drugged her … of abuse when would have been vulnerable. He did much more than drug Ms. Smart, to render her vulnerable. I would ask this court in dealing with was she vulnerable to recall the testimony of (unknown name). He is the individual who observed the trio at a Burger King in north Las Vegas. He saw them on March 11, the day before Ms. Smart was found in Sandy, Utah. The day before the last time she was raped his testimony. As I recall was that he was so concerned observing the three that he called the police. He was asked what made him call the police. He responded an this is what the look ion the this little girl's face. He was asked to describe the look. His response was afraid, very afraid. That was the day before March 12 the day before she was last sexually abused. It was the defendant's conduct that … that look in the little girl's face and left (unknown name) and to call police. And I believe (unknown name) recognized the criteria required of vulnerable victims. That that little girl was unable to protect herself and was unable to protect herself. Does your honor have any further questions?
Viti: Allow me to address double-counting argument. Use those factors, 10th Circuit that impermissible double counting or cumulative sentencing occurs only when the same conduct is used to support separate increases under separate if two guidelines serve different purposes it therefore follows both could be applied. Based on the same conduct everyone on in 518218 departure therefore all applied under same conduct the conduct that rendered Ms. Smart vulnerable can be just. Due to justice conduct departure such victims are in need of greater societal protection. I would … case 10th Circuit I have other items if your honor needs them. Extreme conduct no evidence that requites comparative analysis this issue was raised and rejected by 10th circuit at 65334456 the only
Viti: (Unknown name's) assertion that government was required to present evidence establishing typical conduct in an aggravated sexual abuse assault the court is simply without foundation in the guidelines, and thus we reject the … comment on the 35553 a factors on there than what we cited or noted in our sentencing memorandum that being approximated six-months after the defendant kidnapped Ms. Smart, the kidnapping guidelines were changed and if one does a calculation under those new guidelines the cross-reference would not even apply because the guideline level would be much higher, in fact, using that guideline your honor without any of the contexts and enhancements total offense level could be 42 offense level 442 at criminal history category 2, the guideline range is 360 to life, and I ask this court to consider that when it's applying and analyzing the 3551 facts in sentencing.
Kimball: Thank you Mr. Viti. I don't think I asked you to comment if there anything else you want to say go ahead and say it.
Douglas: Two things to note. First that the government has argued that the conduct during the ongoing offense … and I've cited cases throughout both on kidnapping and the man at that Mr. Viti addressed what he ignore is that under U.S. vs. Cabanero, we are also supposed to 1251 number 1243, I we must only apply this the characteristics are typical of unusual targets the man act cases squarely show that usual victims in those cases are as those man act cases described I won’t repeat my kidnapping argument I do think Mr. Viti makes a good point that kidnapping is ongoing offense the question of whether she was kidnapped every day is a logical one you could not rest on
Judge: Could not as for minority only followed in 5th circuit case clearly puts it this way that the court is careful to say that truly is not intended to put counsel … of foregoing competency hearing and therefore making grounds of ineffective assistance of counsel claim and … pc101 enhance,wnm4n that's exactly where were … as Mr. Viti described. We came into this court in 2008 and the United State we asked for a competency hearing we were bound to follow that and we didn't oppose it and I put it to this court to say that if was had opposed it our opposition would have been denied.
Judge: I don’t think the argument is based on facts of competency hearing, variety of delaying tactics before. And your honor will characterize them as you will or as I have ;or as you have
What we have seen your honor is the testimony at trial and I will point out the … of the governments two mental health experts didn't change neither support they did continue to say Mr. Mitchell was feigning religiosity and I will point to what I said in my brief about feigning religiousness a stall tactic I don't think feigning religiosity helps that at all and I will say, quite frankly, there isn't that much evidence in front of this court of finding of making a finding when it doesn’t need to on sincerity and nature of someone's religious beliefs.
Judge: Thank you Mr. Douglas. Mr. Steele did you have anything you wanted to say?
OK. We'll bring in Mr. Mitchell now and go through victims' statements than I will rule
Mitchell enters courtroom at 3:12, singing
Kimball: Ms. Smart, Mr. Smart, whichever of you goes first.
Ed Smart: Your perversions and explanation of religion is not a defense. It is disgusting, and it is an abuse that anyone should despise. You put Elizabeth through nine months of psychological hell. I hope that sometime in your life you find that what you have done is wrong, whether it is on this earth or in eternity. You are going to have to face the guilt you are going to have to recognize that what you did and I hope that at some point you will repent of it.
Elizabeth: I don’t have very much to say to you. I know exactly what you did and I know that you know that what you did was wrong. You did it with a full knowledge. I also want you to know that I have a wonderful life now, and no mater what you do, you will never effect me again. You took away nine months of my life that can never be returned, but I know that in this life or in the next you will be held responsible for what you have done, and I hope you're ready for that day when it comes.
Viti: May it please the court on June 5, 2002, nine years ago, the defendant Brian David Mitchell, after careful planning and preparation cur the kitchen window at home of Elizabeth Smart and entered the bedroom where she was sleeping with her sister Mary Katherine, and held a knife to her neck and threatened her and her family if she tried to cry out or tried to escape. He took her to a campsite where he prepared for her long-term captivity. Wanda Barzee was waiting there for the defendant. The defendant and Barzee performed this so-called ceremony. Then Ms. Smart was forcibly raped despite her screams and her efforts to resist and her plea that she was a young girl who hadn't had her period. Next, the defendant tethered her to a tree — one end of which tied around her ankle — strung between two trees tethered between two campsites.
Kimball: Mr. Viti, I've heard all of the evidence.
Viti: Life changed violently and without warning on that morning for Ms. Smart. The Boogey Man under the bed the monster in the closet became real that morning for Mr. and Mrs. Smart. The word parents should never have to hear — a man has taken Elizabeth. For the next months they endured the agony of a child had been taken, left wondering whether their daughter was dead or alive. Mr. and Mrs. Smart endured and survived just as Ms. Smart endured and survived the defendant's brutal conduct of which, your honor, is where he attempted to emotionally and mentally separate her from her past life of family who loved her. He stripped her of her name, forced a new identity on her. During this time he presented her with a cruel choice. He stripped her of her clothes and forced her to burn them, destroying her connection to her past. … Ms. Smart kept those she … that she tried to hide it and the defendant found it, and realizing its important value to her, he threw it away. At that time, for those nine months, Ms. Smart was forced to engage in conduct so foreign, so contrary and repulsive to young woman she was and the young adult she has become, conduct that flew in the face of all she had been taught. For nine months Ed and Lois Smart were denied the company of their daughter and all of the joy, happiness aggravation and frustration that comes with raising a teenager. They were denied being her mom and dad, her brothers and sister denied company of their sister, denied the company or their company those nine months can never be replaced. We are here today for the defendant's sentencing. Those of us involved in the criminal justice system take their roles and responsibilities seriously where law and justice intersect.
Judge: Mr. Mitchell you are being sentenced. You have the right to say something if you want to, you are not required to. If you want to say something go ahead and say it.
Mitchell: (Defendant sings)
Judge: All right
With respect to leader/organizer enhancement PSR I think it was appropriately applied, particularly in terms of … direct to the evidence at trial suggest Mr. Mitchell did most of the arranging, and I think that as … enhancement. I also think the obstruction of justice enhancement should be given, and I will refer to my opinion in the competency ruling
Vulnerable victim ruling represents interesting set of questions. The law on vulnerable victim with it goes to kidnapping is all over the place.
I believe in this case the vulnerable victim enhancement applies because of transportation charge and conviction. We have a victim who wouldn't even talked to a policeman after a few months of horror in a camp. Her identity was almost obliterated by the defendants. It … reason on transportation charge, I won't reach it on kidnapping charge because it's not necessary.
This is especially degrading set of facts and circumstances that lasted for 9 months that is even horribly unusual even for this kind of crime.
I’m indicating an upward-level departure of five for that I hold the appropriate guideline range is 48, which means life sentence guideline range. And I think the factors also a life sentence to reflect the seriousness of the offense. We know the facts here, and horrible crime, and the life sentence reflects the history of abuse against young girls for a long time.
It is the judgment of the court that Brian David Mitchell, be placed in the custody for life. The defendant shall submit a DNA sample to the Bureau of Prisons. The defendant committed offenses and shall report addresses he resided and register as a sex offender in any state.
Mr. Mitchell, you may appeal for 10 days. If you want not apply for appeal, the court will recommend a federal correctional facility where he can receive appropriate medical help. Anything else? Thank you all. We'll be in recess on this matter.
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