Mitchell found competent

In a surprise move, defense attorney waives hearing

Deseret Morning News/September 1, 2004
By Pat Reavy

The man accused of kidnapping and assaulting Elizabeth Smart was determined by 3rd District Judge Judith Atherton Tuesday to be competent to stand trial.

In a surprise move, a scheduled three-day competency hearing for Bryan David Mitchell lasted just five minutes when defense attorney Kimberly Clark announced the defense was waiving the competency hearing.

Both the prosecution and defense are scheduled to be back in court Thursday for a scheduling conference. At that point, additional court dates could be set to move ahead with the criminal proceedings.

Tuesday's hearing also marked Mitchell's first public appearance in 16 months. He was last seen April 22, 2003, during his first in-court appearance.

In court Tuesday, Mitchell was wearing a tan jump suit with his hands handcuffed in front of him and his legs shackled. His long hair was combed back, and he still wore a long, graying, scraggly beard.

Mitchell did not say a word during the hearing. When Atherton asked Mitchell if he had spoken to his attorneys about waiving the competency hearing and if he understood what it meant, he simply nodded his head. He then nodded his head a second time after the judge asked if he was OK with the decision.

Mitchell, 50, and his wife, co-defendant Wanda Barzee, 58, are charged in 3rd District Court with aggravated kidnapping and aggravated sexual assault. They are accused of abducting Smart from her home June 5, 2002. The three were found in Sandy on March 12, 2003.

Barzee was found to be incompetent to stand trial and is currently receiving treatment at the Utah State Hospital. Her next scheduled progress update is in 2005.

Two court-appointed doctors assigned to examine Mitchell were split on whether they believe he is competent to stand trial. The decision to waive Tuesday's hearing may have partially been based on new "evidence" that was collected.

Salt Lake District Attorney David Yocom said that new evidence was a third evaluator picked by the defense who he believed also found Mitchell to be competent.

In a prepared statement, Yocom said the standard for determining competency was determined by whether Mitchell was able to consult with his lawyers and understand what they were saying and whether he could understand the court proceedings against him.

"Mitchell's attorneys stipulated that Mitchell does, in fact, meet these standards for competence at this time; therefore, no testimony was necessary (Tuesday) to establish competency," he said in his statement.

Although the quick ending to the competency hearing may have been a surprise to those in the audience, Yocom said, "This has been in the making for some time."

Mitchell's case has been bogged down by numerous delays and appeals based primarily on issues surrounding the competency hearing and whether it should be open to the public.

"I wouldn't say it's about time, but it's good we're moving on," Yocom said about the case seemingly now proceeding.

Clark and other members of her defense team had no comment for the news media after Tuesday's hearing. Inside the courtroom, Clark called the move to waive the hearing a "tactical decision."

Ed Smart, who was in New York Tuesday, told the Deseret Morning News in a phone call that he was happy with the outcome of Tuesday's hearing.

"I'm just glad because it's not going to be a circus," he said. "We were really blessed in that things have not been in your face. That's good."

Smart said he was pleased that details of Elizabeth's abduction were not revealed during the competency hearing. Now he said the family will simply prepare for whatever comes next.

"We'll just take it a day at a time. We're just going to take it and see what happens," he said. "We're just grateful that one more step is out of the way."

Mitchell's first wife, Debbie Mitchell, who was married to him from 1980 to 1985, was in the courtroom Tuesday. She said it was the first time she had seen her ex-husband in person since their divorce. "I wanted to make sure he was found competent," Debbie Mitchell said of her reason for attending the hearing.

She described her former husband as being very controlling and abusive but said he is no dummy. "He's very intelligent. He's a smart man," she said.

She also said she believed Mitchell knew exactly what he was doing while portraying a prophet and now reportedly not cooperating with mental health evaluators, calling it a "good game" he's playing.