SALT LAKE CITY – Federal prosecutors on Thursday sought a competency hearing — not forced medication — for the man charged in the 2002 abduction of Elizabeth Smart after receiving split opinions from a pair of psychiatric experts about his competency.
The hearing, which will be held sometime this fall, comes after two independent evaluations to determine whether Brian David Mitchell is able to participate in his own defense.
Mitchell, an 55-year-old itinerant street preacher, was indicted in March 2008 on charges of kidnapping and unlawful transportation of a minor.
The findings by New York forensic psychiatrist Dr. Michael Welner and an earlier report from Dr. Richart De Mier at a federal facility in Springfield, Mo., have not been made public.
Had both physicians found Mitchell incompetent, federal prosecutors would have asked for a "Sell" hearing, which would determine whether he could be forcibly medicated in an effort to make him competent.
Mitchell's public defender, Robert Steele, said Thursday that he planned to call De Mier as a witness. Steele maintains that Mitchell is incompetent, a conclusion reached twice in a state court case.
Prosecutors sought the evaluation of Mitchell by Welner after Mitchell was observed by De Mier at the U.S. Medical Center for Federal Prisoners between December 2008 and February 2009.
Mitchell suffers from a rare delusional disorder. He has frequently disrupted court proceedings by singing hymns and once yelled at a judge to "repent."
Assistant U.S. Attorney Richard Lambert said a competency hearing could last up to 10 days. A hearing date was expected to be set during an Aug. 17 status conference.
Smart was 14 when she was taken from her Salt Lake City bedroom in 2002. She was found in March 2003, walking the streets of a Salt Lake City suburb with Mitchell and his now-estranged wife, Wanda Eileen Barzee.
State court cases for Mitchell and Barzee have stalled because both were found incompetent for trial. A state judge ordered forced medications for Barzee, but last year declined a similar order for Mitchell.
Steele said Thursday that Mitchell's federal case appeared to be headed for a repeat of state court proceedings: a competency hearing, followed by a Sell hearing if a judge rules Mitchell incompetent.
A Sell hearing is a process established by a U.S. Supreme Court ruling in 2003 that said prosecutors must prove a compelling interest is at stake and that medicating the defendant would further that interest. The medication must also be shown not to harm the individual or prevent him from defending himself.