The Elizabeth Smart Trial Hits a Snag

Time Magazine/November 4, 2010

Brian David Mitchell's trial for the abduction of Elizabeth Smart came to an abrupt halt in Salt Lake City on Thursday at approximately 10:30 a.m., three minutes into the defense's opening statements. The 10th Circuit Court of Appeals in Denver had just granted a stay in the trial to consider the defense's request for a change of venue. The presiding judge in Salt Lake City, Judge Dale Kimball, said he was "very unhappy" with the decision, then said, "I have to do what the 10th Circuit says. I don't know what they'll do when they consider it, but for today we are in recess for this matter. I'm very sorry."

The stay interrupted what might have been a dramatic day of testimony. Elizabeth, who celebrated her 23rd birthday on Wednesday, was in court with her parents Ed and Lois Smart, her sister Mary Katherine and her grandmother. Elizabeth had returned home from Paris, where she was on a Mormon mission, and was scheduled to testify against Mitchell on Thursday, along with her mother. Also scheduled to testify was Mary Katherine, who was in the bedroom the night Elizabeth was allegedly taken by Mitchell.

Earlier in the day, prosecutor Felice Viti had delivered a strong and emotionally charged opening statement to the jury of nine men and five women. Viti recounted the family prayer that Ed and Lois recited each night before putting all six of their children to bed at their home in the affluent Federal Heights neighborhood of Salt Lake City. On the specific night in question, Elizabeth read to then 9-year-old Mary Katherine, with whom she shared a room and bed, before falling asleep around 1 a.m. or 1:30 a.m. It had been a busy day. Elizabeth was on the verge of graduating from junior high and the family had attended an awards ceremony that evening at her school. "That evening, when [Ed and Lois] believed their children were in safety, where they were supposed to be, they retired. They never imagined how much their world would change in the early-morning hours of June 5, 2002, when Mary Katherine awoke Ed and Lois and told them the unthinkable," Viti said. "A man had taken Elizabeth."

Viti continued his opening statement and said that for the next nine months, Elizabeth was held captive, sexually assaulted on an almost daily basis, and forced to drink alcohol and smoke cigarettes and marijuana. She spent the first six weeks tethered between two trees by a cable attached to her ankle and forced to use a bucket as a toilet. "The once limitless horizons of Elizabeth's world went no further than the length of the cable," Viti said. The prosecution was preparing to use photos and physical evidence to build their case. And then, of course, there would be Elizabeth's account of her nine months in captivity.

But the defense attorneys for Mitchell had already been working behind the scenes to throw a wrench into the prosecution's narrative. Mitchell's lawyers had argued that, even after three days of jury selection, they were unable to find an impartial jury. They filed the petition to the 10th Circuit for a change of venue on Wednesday and it was granted Thursday morning.

Mitchell himself added to the theatricality of the proceedings. Every time he was led into court, Mitchell had his eyes closed and his hands clasped, softly singing Mormon hymns. His beard is longer and his face thinner than at the time of his arrest in March 2003. He appeared in court briefly on Thursday morning, once again singing the hymns, and was removed from the courtroom - as he had been every previous time he sang - for disruptive behavior. Elizabeth entered the courtroom while Mitchell was singing and stared at him as he was escorted into an adjacent room.

When jury selection began on Nov. 1, Mitchell sang for approximately 10 minutes as potential jurors filed into the courtroom before he was removed. "I assume you'll continue to sing," Judge Kimball said, after informing Mitchell of his right to be present at his own trial - unless he continued to disrupt the court. Mitchell was then escorted to the adjacent room, still singing.

When the proceedings started, Mitchell made a request to wear the robes he was dressed in when he was arrested, but Judge Kimball denied that request for security reasons. At the time of his apprehension, Mitchell had been a homeless street preacher who called himself Emmanuel and saw himself as a prophet.

After months of anguished searching by the Smarts and the police, Mitchell was arrested in Sandy, Utah, in March 2003, on a tip from a biker who thought he fit reported and televised descriptions of Emmanuel based on Mary Katherine's recollections. Mitchell was traveling with Elizabeth and his wife Wanda Ileen Barzee at the time of the arrest. Mitchell faces federal charges for kidnapping and transporting a minor across state lines with the intent to engage in sexual activity. If found guilty, he could face life in prison.

The trials of both Mitchell and Barzee were delayed because there had been arguments about their sanity and competency. Barzee was finally brought to trial after a Utah judge approved forcibly medicating her with antipsychotic drugs to restore her mental competence. She pleaded guilty to charges of kidnapping in November 2009 and is currently serving a 15-year sentence. Last March, Mitchell was finally ruled competent to stand trial.

As for the resumption of Mitchell's trial, defense attorney Wendy Lewis said they were unsure how long the stay on the case would last. In the final moments of the proceedings on Thursday, before dismissing the jury for the day, Judge Kimball informed them that they may not be returning until next week.

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