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Laura Seitz, Deseret News
Paul Cassell

SALT LAKE CITY — Both sides in the Brian David Mitchell trial have drawn battle lines and spelled out their strategy to the jury.

After last week's brief interruption by an order from the 10th Circuit Court of Appeals, 14 jurors and alternates are sitting down to hear testimony and begin considering Mitchell's fate. The battle is about what was going on in Mitchell's head, according to University of Utah law professor Paul Cassell.

"The jury's got to decide," Cassell said, "did Mitchell know he was doing something wrong."

On one level, Mitchell's case is a no-brainer for the jury. The defense so far has done little cross-examination of prosecution witnesses because the defense does not contest the basic facts. But the jury faces the potentially difficult task of determining whether Mitchell was insane. The defense team's focus is to show that Mitchell's crimes resulted from a mental state that made him unable to tell right from wrong.

Cassell says when a case features an insanity defense, the burden of proof shifts from the prosecution to the defense.

"The burden is on him to show that clearly he was insane," Cassell said. The law requires a tough standard of proof. "Congress has said that has to be proved by a 'clear and convincing' standard," according to Cassell. "That's a pretty tough burden for Mitchell to shoulder here."

In his opening statement to the jury, defense attorney Parker Douglas said Mitchell's behavior started to change in his early teenage years and became "frequently bewildering, seemingly strange and crazy." Douglas suggested to the jury that mental illness may have run in Mitchell's family. His grandfather was institutionalized with paranoid schizophrenia, Douglas said, and his father had religious obsessions, including a long-term withdrawal to write a 900-page religious manuscript.

Douglas said Mitchell himself was referred to mental health experts in his teen years after an incident in which he exposed himself sexually to an 8-year-old girl.

As an adult, Mitchell's beliefs grew more and more extreme, according to the opening statement from the defense. Mitchell claimed revelations and a "calling" to restore plural marriage. Supposedly acting for God, "yelling hellfire and damnation" at his religious opponents, Mitchell would sometimes sing to drown out coworkers.

But in the government's opening statement last week, prosecutor Felice Viti signaled a strategy he hopes will persuade the jury to bring in a conviction. Viti emphasized Mitchell's crafty, calculating nature as he committed crimes and maneuvered to avoid arrest.

"Time after time," Viti told the jury, "the defendant would successfully manipulate the people he encountered, especially through the use of religion, in very subtle ways to obtain what he wanted."

That side of Mitchell's behavior is likely to be spelled out to jurors by prosecution witnesses. Cassell said, "The battleground's going to be, did he act out of self interest? Sexual interest? Religious interest? Whatever it may be. Or was he someone who didn't understand at all what he was doing, and particularly, the rightfulness or wrongfulness of that?"

Cassell predicted an uphill battle for Mitchell's defense team, "just given the length of time that Mitchell was able to keep Elizabeth Smart under his control." Cassell said, "That suggests someone who knew what he was doing and someone who had the ability to manipulate and control situations."

Jurors have already heard Mitchell singing hymns in court. No one can say if jurors are inclined to view that as evidence of insanity or, instead, of deliberate fakery by a scheming defendant.

Under the law, if jurors can't make up their minds about the insanity issue, the case would likely go against Mitchell. "If the jury's on the fence about whether Mitchell was insane or not, they have to convict in this case," Cassell said.

The former federal judge predicts a battle of experts. He expects both sides to call psychiatrists and others to testify about their informed opinions. "But ultimately," Cassell said, "it's going to be up to the jury, and the jury's common sense, about what they think happened."