Prosecutors move to drop state charges against Elizabeth Smart's kidnapper

Published: Wednesday, June 29 2011 11:02 a.m. MDT

SALT LAKE CITY — The Salt Lake County District Attorney's Office filed a motion this week to have the state charges against Brian David Mitchell dismissed.

The man convicted of kidnapping and sexually assaulting Elizabeth Smart was sentenced in federal court in May to life in prison. In the federal system, there is no possibility of parole.

But while Mitchell is a convicted child kidnapper and sex offender in the eyes of the federal court system, in state court his case is still on hold.

On Oct. 9, 2008, 3rd District Judge Judith Atherton ruled that Mitchell, who faced six felonies including aggravated kidnapping, aggravated sexual assault and aggravated burglary for the kidnapping of Elizabeth Smart and the attempted kidnapping of her cousin, was incompetent to stand trial and not eligible to be involuntarily medicated in an attempt to restore his competency.

The very next day, federal prosecutors stepped in and moved their case to the forefront. The state case against Mitchell has been on the back burner ever since.

On Monday, in a brief motion filed in 3rd District Court, District Attorney Sim Gill moved to dismiss the state case "for the reason that Mr. Mitchell has been adjudicated guilty of kidnapping in the United States District Court and has been sentenced to a term of imprisonment for life."

Ed Smart, Elizabeth's father, said his family met with Gill before the motion was filed, and they all agreed dismissing the court case was the best thing to do.

"We would never see justice in the state court the way it stands," he said. "Just because the federal court found him competent doesn't mean our state court would find him competent. It could go on forever."

Smart said his family simply didn't see any value in pursuing the state case further. "Is there any value in having the state as a backup at this point? We don't feel that there is."

Gill said a combination of factors led to the decision to file the motion, namely input from the Smart family and their desire to move on, and what it would cost to acquire the resources needed for trial versus what the ultimate outcome might be.

"The fact is, we're not going to be able to get anything beyond what the federal system gave," Gill said.

Smart said he also feared a repeat of the Lonnie Johnson case. Johnson is a convicted child rapist from Washington state, who was charged in 2007 in Utah with nearly two dozen rape, sodomy and aggravated sexual assault of a child charges.

Johnson was declared incompetent to stand trial and in March a judge ruled he was unlikely to ever be competent for trial. And because he was not considered to be a person who would cause "serious bodily injury" to himself or others, he was released from the Utah State Hospital and allowed to return to Washington.

But Gill said in Mitchell's case, that was unlikely to happen.

"He's got the federal conviction on him. He's got the sentence in place there. He's not going to be going anywhere," he said.

Mitchell's state attorneys have until July 12 to file a response. Atherton will then decide whether to agree to the motion.

E-mail: preavy@desnews.com Twitter: DNewsCrimeTeam

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