Brian David Mitchell

Both sides in the kidnapping and sexual assault case against Brian David Mitchell submitted their final memorandums this week on whether the self-proclaimed prophet should be involuntarily medicated.

Third District Judge Judith Atherton will now take the case under advisement and issue a written decision at an undetermined date.

Mitchell and co-defendant Wanda Barzee, Mitchell's estranged wife, are accused of kidnapping Elizabeth Smart in June 2002. The three were found walking down State Street in Sandy nine months later. Both defendants were charged by a state grand jury with aggravated kidnapping, two counts of aggravated sexual assault, aggravated burglary and attempted aggravated kidnapping.

Both Mitchell and Barzee have been found incompetent to stand trial. Prosecutors say doctors at the Utah State Hospital have tried everything to restore Mitchell's competency except anti-psychotic medication, which he refuses to take.

In September, Atherton held a Sell hearing to determine whether Mitchell could be forced to take medication. A Sell hearing is named after the U.S. Supreme Court case that set the standard for involuntary medication. For a defendant to be forcibly medicated:

• There must be important government interest at stake.

• The medication must be "substantially likely" to render the defendant competent.

• Medication is necessary to achieve the result.

• It is medically appropriate.

The main point of contention between the state and Mitchell's defense is what constitutes "substantial likelihood."

In its 37-page memorandum, the defense argued that prosecutors did not meet any of the Sell criteria.

"The State failed to demonstrate by clear and convincing evidenced that involuntary medication is significantly likely to restore Mitchell to competency, substantially unlikely to result in side-effects that would undermine his right to a fair trial, and in in his best interests as a patient. The State's competency restoration estimates are founded upon unreliable, unscientific and biased evidence," according to court documents.

The defense even concedes that it's unlikely Mitchell will be set free. Therefore, the State's argument that an important government interest is at stake is not true.

"Absent medication, Mitchell is likely to remain confined in the Utah State Hospital indefinitely," court documents state. "Regardless of whether Mitchell recovers without medication, he faces secure confinement ... Although Mitchell faces serious charges, the State's interest in prosecution is diminished as his continued confinement significantly reduces any risk to community safety."

Prosecutors countered, however, that the serious charges Mitchell faces, "can only fully be addressed through resolution of the criminal case," according to court documents.

The State's memorandum, with supporting addendums, is about 1 1/2 inches thick. Prosecutors say their two expert witnesses who testified in September were credible. Both of them put the chance of restoring Mitchell's competency if he is medicated at 60 percent or higher.

"The State has presented clear and convincing evidence that medication is substantially likely to succeed based on the testimony of the State Hospital's experts, that there is a substantial likelihood that antipsychotic medication will restore the defendant and that the defendant is unlikely to experience side effects that would interfere with his defense," according to court documents.

Barzee was also given a Sell hearing, the first ever in Utah. Atherton ruled in her case that the Sell criteria were met and she could be forcibly medicated. That decision was appealed to the Utah Supreme Court. As of Wednesday the court had not made a decision.


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