Today marks one year since attorneys for Wanda Barzee went before the Utah Supreme Court arguing that the decision to allow their client to be forcibly medicated was wrong.
Barzee, 62, and her estranged husband, co-defendant Brian David Mitchell, are accused of kidnapping Elizabeth Smart in 2002. Three times she has been ruled incompetent to stand trial. Doctors at the Utah State Hospital say they have tried everything to restore her competency except anti-psychotic medication, which she refuses to take.
On June 21, 2006, 3rd District Judge Judith Atherton ruled Barzee met the four criteria set in Sell v. United States and could be forcibly medicated. Barzee's defense team quickly filed an appeal with the state's high court, which agreed to hear the case on Dec. 6, 2006. Attorney Scott Williams argued that Atherton's decision was not supported by the evidence presented in court.
One year later, the Utah Supreme Court has yet to issue a decision.
"Yeah, we're surprised," Williams said. "We were asked by the court on an expedited basis (to present arguments). We expedited the proceedings, we expedited the argument and we haven't heard on an issue that those involved thought was (an immediate issue)."
The Salt Lake District Attorney's Office said it would withhold comment until the justices made a decision.
But legal expert and former Brigham Young University law professor Marguerite Driessen, who has no direct involvement with the case, said she, too, is a little puzzled by how much time has passed without a decision.
"It's kind of funny to me that they've taken so long," she said. "Clearly, forced medication is a somewhat sensitive issue. But typically I would not expect this to take so long."
By comparison, it would not be unusual for a capital murder case or a case before the U.S. Supreme Court to take a year, Driessen said.
Ed Smart, Elizabeth's father, said he was surprised at how long the cases for both Barzee and Mitchell have taken.
"It's amazing. I would never have guessed in a million years it would take this long," he said. "It seems every right of the predators is being given to them. What's Elizabeth's right to have them put away? Victims' rights ... are there any? But they aren't hurting her at this point, and we're moving ahead.
"The courts will do whatever they're going to do. I just can't believe it can drag on forever."
Mitchell, whose yelling and singing outbursts in court have contributed to his being found incompetent to stand trial, is awaiting Atherton's decision on whether he, too, can be forcibly medicated. Final memorandums in Mitchell's Sell hearing were filed in November.
One reason for the apparent delay in the Supreme Court's decision on Barzee could be that a bigger picture is at stake, Driessen said. Barzee's Sell hearing was the first for Utah. Whatever decision the Utah Supreme Court makes regarding the case will set a precedent for other cases.
"You're basically making law for everyone," she said.
Whether or not Barzee is competent is not the issue being decided, Driessen reminded.
"No one has appealed the competency ruling. They're not revisiting the competency question at all," she said.E-MAIL: [email protected]