UT- Defense seeks dismissal of Smart kidnapping case

12-21-2008 Utah:

SALT LAKE CITY (AP) - Defense attorneys for the man charged with kidnapping Elizabeth Smart want a state judge to dismiss the case.

Lawyers for Brian David Mitchell say continuing to hold criminal charges over his head when he has been deemed incompetent creates "unnecessary and harsh" conditions of confinement which violate the "unnecessary rigors clause of Utah's constitution.

The state constitution protects arrested or imprisoned persons from confinement conditions that are "needlessly harsh, degrading or dehumanizing."

"Mr. Mitchell is incompetent to stand trial and will remain so. Permitting his criminal charges to remain, despite the reality that no trial will ever be held is unjustified and unnecessary," attorneys Heidi Buchi and Michael Sikora wrote in papers filed Thursday in 3rd District Court. "It accomplishes nothing more than to cause Mr. Mitchell anxiety and concern."

Buchi and Sikora said the state could seek to have Mitchell civilly committed - an "adequate alternative" to prevent harm to the community that would not cause Mitchell the "anxiety and concern" inherent in criminal charges, the attorneys said.

Third District Judge Judith Atherton has scheduled a Feb. 26 hearing to decide the issue.

Salt Lake County Deputy Prosecutor Alicia Cook says she'll oppose the request.

"We don't think that it's necessary to dismiss the charges at this point," Cook said Friday. "We do not think that the case is dead. We think that there are many concerns and that its valid to continue to put energy and interest into this case. If there's any possibility of moving forward on it, we want to preserve it."

Cook said the law does not require the dismissal of charges when the state has been unsuccessful at restoring a defendant's competency.

Arrested in 2003, Mitchell is charged with multiple felony kidnapping and sexual assault charges in the June 2002 abduction of Smart, then 14, from her Salt Lake City home Mitchell suffers from a rare delusional disorder and has twice been found incompetent for trial. The state's case stalled in October after Atherton said she would not order forced medications for Mitchell.

Cook has not - and will not - appeal the ruling and said she delayed making a decision to seek civil commitment, because federal prosecutors sought custody of Mitchell.

A federal grand jury indicted Mitchell on charges of kidnapping and unlawful transportation of a minor in March.

On Dec. 4, Mitchell was transferred from the Salt Lake County Jail to the U.S. Medical Center for Federal Prisoners in Springfield, Miss., where he's under-going a mental evaluation ordered by federal judge. It is unclear how long that process will take. ..News Source.. by JENNIFER DOBNER