Published January 14, 2015
Attorneys for the homeless couple accused of kidnapping Elizabeth Smart (search) went to court Monday to block efforts by the news media to have the suspects' competency hearings held in open court.
Attorneys for Brian David Mitchell (search), 50, and his wife, Wanda Barzee (search), 58, argued their clients have no chance for a fair trial unless the judge closes the hearings on whether they're mentally able to stand trial.
Facts the attorneys would discuss are "intricately tied" to the case, Barzee's attorney Scott Williams told Judge Judith Atherton. David Biggs, defending Mitchell, said allowing in the public "would eradicate his chances for a fair trial."
Neither attorney would elaborate on what facts would be discussed.
Media lawyers argued that the hearings should be open unless the defense offers compelling reasons that they be closed. So far, the defense has not done that, the attorneys said.
Plaintiffs include the Salt Lake Tribune, the Deseret Morning News, KSL-TV and the Utah chapter of the Society for Professional Journalists.
Atherton likely will rule on the issue at a scheduled hearing Friday morning, immediately before Barzee's scheduled competency hearing. Mitchell's competency will be taken up Jan. 27.
Atherton said that when she originally ruled last month that the hearings would be closed, she didn't take into account constitutional guarantees of freedom of the press.
"Once the press raises the First Amendment issue ... the burden shifts to the party seeking closure," she said.
That means the defense attorneys have to show there would be "substantial risk" to the ability to provide Mitchell and Barzee a fair trial, Atherton said.
Barzee and Mitchell are charged with aggravated kidnapping, aggravated sexual assault and aggravated burglary in Smart's abduction in June 2002. They allegedly kept her as Mitchell's second wife for nine months in Utah and California before being found in March near Salt Lake City.