SALT LAKE CITY — On Wednesday, Elizabeth Smart will address Brian David Mitchell for the first time since she was rescued from her horrific nine months of captivity eight years ago.
Mitchell, convicted in December of kidnapping Smart in 2002 when she was 14 and taking her across state lines for the purpose of having sex, faces a possible life sentence when he is sentenced in federal court.
But before U.S. District Judge Dale Kimball sentences him, Smart will be allowed to address both the judge and Mitchell himself.
"Under federal law, crime victims have the right to address both the court and the defendant and explain how the crime has affected them. She can talk to Judge Kimball and talk to Mitchell on what effect his crimes have had on her," said University of Utah law professor and former federal judge Paul Cassell.
During a series of short interviews with the media last week, Smart told the Deseret News she hadn't decided what she will tell Mitchell.
"I'm not really sure what I'm going to say yet. I guess we'll just all wait and see," she said.
But Ed Smart, Elizabeth's father, has noted for awhile that his daughter wants an opportunity to confront him.
The first time Elizabeth Smart took the witness stand during Mitchell's competency hearing in 2009, she did not come face to face with Mitchell because he had been removed from the courtroom for singing and disrupting the proceedings.
"She actually wanted to face him," Ed Smart said then. "She asked (before the hearing) if he could be muzzled and sit and watch."
When Mitchell's trial began in 2010, it was the first time Elizabeth had seen Mitchell in person since she, Mitchell and Wanda Barzee (Mitchell's estranged wife and co-defendant) were stopped by police in Sandy in 2003, bringing Smart's kidnapping nightmare to an end.
Smart does not mention Mitchell by name. During three days of testimony during Mitchell's trial, she only referred to him as "the defendant." But Smart also says she has moved on with her life. She does not spend time dwelling on what Mitchell did to her.
One point that she is expected to bring up during Wednesday's sentencing is that Wednesday is also National Missing Children's Day.
Giving hope to others and helping them get through their own trials was something Smart touched on Sunday to members of her LDS ward in Federal Heights as she spoke of her recent mission to France.
Telling stories that were both inspirational and frequently filled with light-hearted sarcasm and humor, Smart talked about how the gospel of The Church of Jesus Christ of Latter-day Saints has helped her get through every trial in life that she's had to face. Although not once directly mentioning her kidnapping ordeal, Smart said the gospel has always given her hope and she wanted to share that message with others — which is why she decided to go on a mission.
Originally, however, a mission wasn't something Smart said she was sure she wanted to do. Even when she was at the Missionary Training Center in Provo, she continued to have doubts about whether she had made the right decision. It wasn't until a man she had once dated — whom she clearly told it wasn't going to work out between them — made an ill-advised marriage proposal inside the MTC that Smart knew going on a mission was what she wanted to do.
Last week, prosecutors and defense attorneys filed several documents in preparation for Wednesday's sentencing.
There are guidelines that each judge follows when a person is sentenced. Based on the crime, they are able to determine a range of possible sentences.
For Mitchell, the maximum penalty he faces is life in prison. But the possible minimum sentence is something that will be determined by Kimball based on how many aggravating circumstances he decides Mitchell committed.
Once he has a floor and a ceiling, the judge can either give Mitchell a sentence that falls within that range, or he can go above or below that range if he determines there is good reason, Cassell said.
A basic conviction of kidnapping in federal court for a person with no prior convictions who did not harm their victim is a 10-year minimum sentence, he said.
Attorneys for both sides of the Mitchell case are expected to argue about a number of possible aggravating factors. Those include whether Smart suffered "extreme" psychological harm, whether Mitchell was the mastermind of the crime or whether he worked hand in hand with Barzee, and whether Mitchell preyed on a vulnerable victim.
Cassell's prediction is that Mitchell "will probably receive a very, very heavy sentence on Wednesday."
Mitchell's attorneys, however, are expected to ask Kimball to send their client to a federal mental health facility.
One question that has been on the minds of many is how Mitchell will react in the courtroom when confronted by Smart. Cassell said traditionally, it is highly unusual for a defendant to act inappropriately during his or her sentencing.
"Usually defendants are on their best behavior during sentencing because they're trying to get the best possible sentence," he said.
But in Mitchell's case, he has sung hymns or disrupted the proceedings for every court appearance — even when jurors delivered their guilty verdict — for the past seven years.
Kimball's office declined to comment about what actions might be taken Wednesday if Mitchell again tries to disrupt Smart when she addresses the court.
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