Attorneys want Elizabeth Smart's kidnapper sent to mental health facility, instead of prison

They also argue that Smart wasn't that psychologically damaged

Published: Tuesday, May 17 2011 4:00 p.m. MDT

Elizabeth Smart (Scott G. Winterton, Deseret News) Elizabeth Smart (Scott G. Winterton, Deseret News)

SALT LAKE CITY — Defense attorneys for Brian David Mitchell say their client should be sent to a federal mental health facility when he is sentenced next week.

The attorneys also question whether Elizabeth Smart actually suffered "extreme psychological injury" when she was kidnapped from her Federal Heights home and held captive for nine months.

In court papers filed Tuesday, defense attorney Robert Steele said Mitchell, convicted of kidnapping then 14-year-old Elizabeth Smart and taking her across state lines for the purpose of having sex, should have his mental and physical health needs considered when he is sentenced by U.S. District Judge Dale Kimball.

Steele argued that all of the mental health experts who testified during Mitchell's trial, even those called to the stand by the government, argued that Mitchell had a mental condition that ranged somewhere between a "severe mental illness" and a mental disease.

Brian David Mitchell (Scott G. Winterton, Deseret News) Brian David Mitchell (Scott G. Winterton, Deseret News)

"All of them explained his (offensive) behavior as at least in part generated by these mental health conditions. The jury noted in its press conference that all of them thought that Mr. Mitchell had some sort of mental health problem but decided ... (it) did not interfere with his ability to understand the nature of what he was doing and that it was wrong," Steele wrote.

The jury, which had the option of finding Mitchell not guilty by reason of insanity, unanimously found Mitchell guilty on both counts.

Steele contends the record "amply supports the position that Mr. Mitchell suffers from a mental condition that contributed at least in part to his commission of the offense."

Also Tuesday, defense attorneys said in their memorandum that Mitchell, who suffered a seizure in court during the trial, continues to suffer seizures every four to six weeks. Sometimes the seizures go unrecorded by officials, "because Mr. Mitchell can now sense when they are coming on and he can sit or lay down, thus avoiding falls leading to injury," according to court documents.

The filing by Mitchell's defense team comes on the heels of an earlier filing that contended Smart, who was raped daily by their client, really didn't suffer "extreme psychological injury" during her nine months in captivity.

In court documents filed May 6, Mitchell's attorneys, Steele and Parker Douglas, say they do not agree Smart suffered "extreme psychological injury ... since its application is directly contradicted by the testimony of Ms. Smart and argument by the government, who vigorously argued that Ms. Smart is a 'survivor' who has not been psychologically injured more than other victims of the offenses at issue."

Mitchell was convicted in December of kidnapping and taking Smart across state lines for the purpose of having sex. He is scheduled to be sentenced next week in federal court. The maximum sentence for kidnapping is life in prison and a statutory maximum of 15 years for the transporting a minor conviction.

A pre-sentence report was filed by the U.S. Probation Office. That report is not public record. The reply filed by the defense is public record.

One of the benchmarks of Mitchell's trial was Smart's poised and remarkable testimony. For three days she took the witness stand and described in detail the abuses she suffered by Mitchell. Many in the courtroom remarked about how composed she remained talking about such horrific acts.

Smart has often talked about being a survivor. After Mitchell was convicted, she stood outside the courthouse and said, "I hope that not only is this an example that justice can be served in America, but that it is possible to move on after something terrible has happened, and that we can speak out and we will be heard."

After Mitchell's conviction, Utah Coalition Against Sexual Abuse executive director Alana Kindness told the Deseret News it could be difficult for the community to understand that rape survivors react differently to the legal process, and how a community perceives the reaction of a survivor can affect whether or not they believe or support them.

"What is interesting in terms of public response to rape is how often that ability to talk about it and reflect on it without breaking down is used against victims in a trial to discredit them," Kindness said. "We have this idea of how someone should behave, so we're shocked when they don't behave that way."

Other victim advocates said the way Smart has moved on since her abduction shows how Smart isn't going to let that moment of her life define her.

Smart's father, Ed Smart, said when he initially heard about the objection he was outraged.

"I thought it was pretty ridiculous," he said Tuesday. "Elizabeth has been amazingly resilient. But did it cause her psychological trauma? Oh my gosh! Give me a break!"

After talking to prosecutors, however, Ed Smart said he understood such a motion is fairly typical in the legal system.

"We have confidence what was testified to," he said. "We're hoping, praying he gets the life sentence."

Also in their objections, Mitchell's attorneys said their client should not receive enhanced penalties for being the alleged mastermind behind the kidnapping.

"The facts adduced at trial do not support the application of an enhancement for Mr. Mitchell as the organizer, leader, manager or supervisor of the criminal activity," attorneys wrote in court documents. "Rather, the facts amply demonstrate that the co-defendants in this case acted equally in harmony and in concert, particularly at first as the criminal activity unfolded."

Mitchell's estranged wife and co-defendant, Wanda Barzee, struck plea deals in both her state and federal cases after being restored to competency in 2009. She was sentenced to 15 years in federal prison in Fort Worth, Texas.

The defense also asked that a paragraph in the pre-sentence report that apparently classifies Barzee as being a "victim" of Mitchell be removed, "as it is not at all relevant to any sentencing issue in this matter."

Prosecutors can now file a reply to the defense's objections.

Elizabeth Smart, who just recently returned home after serving an LDS Church mission in France, is expected to address the court — and Mitchell — when he is sentenced May 25.

Email: preavy@desnews.com

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