Prosecutors preparing charges against the couple accused of kidnapping Elizabeth Smart wonder if they'll face an uphill battle in court because each has a reported history of mental illness.

The issue has arisen during discussions about charges against Brian David Mitchell and Wanda Ilene Barzee, but it may not be much of a worry in a state with, as one prosecutor put it, the "strictest laws in the country" governing prosecution of the mentally ill.

Also, experts make it clear that mental illness and incompetency do not go hand-in-hand.

"Mental illness in and of itself does not mean that somebody is incompetent as far as standing trial," said David Fisher, a psychologist and president of Minnesota-based PsyBar, a company that connects psychological and psychiatric experts with law firms, courts and other agencies throughout the country.

Mental illness and competency are entirely different things, and the presence of one does not automatically preclude the other, Fisher said.

A diagnosis of schizophrenia, for example, is simply a medical determination based on a person's physical symptoms. Insanity, on the other hand, is a legal concept. And while the diagnosis has an impact on a doctor's decision as it relates to insanity, a number of other factors are included in the analysis as well.

Stephen Golding, a University of Utah professor and expert on forensic psychology, agreed.

"Mental illness and competency are really not exactly related," said Golding, who helped author Utah's current competency law. "Mental illness is a threshold issue. In order to have your competency evaluated, you have to be mentally ill.

"And most mentally ill people are not incompetent."

Experts familiar with Mitchell, 49, and Barzee, 57, have said each likely suffers from varying forms of mental illness, including delusions and possible schizophrenia. Barzee has reportedly been hospitalized for mental illness at least once, and Mitchell expressed no interest in getting treatment when approached by a Salt Lake homeless advocate.

The alleged mental problems may not negatively affect attempts to prosecute the couple for Elizabeth's June 5 abduction.

"In a very general sense, if people are able to function independently and competently in their day-to-day lives, they are usually not found to have a viable (insanity) defense case," Fisher said.

Generally, Fisher said, a person is determined incompetent to stand trial if his illness renders him "unable to appreciate the nature and quality or the wrongfulness of his acts."

Even in situations involving religious fanaticism, which is apparently the case here, Fisher said a defendant's competence is not automatically compromised.

"You can have somebody who has religious delusions who still can appreciate the wrongfulness of his act," he said.

Take, for example, the Texas mother of five who drowned her children in a bathtub in June 2001. Doctors determined Andrea Yates was psychotic and suffering delusions because of postpartum depression at the time of the killings, but jurors still found Yates competent to stand trial on capital murder charges.

And as with Mitchell allegedly taking Elizabeth to fulfill his revelation that he was to take multiple plural wives, Yates said she believed she, too, was acting on orders from God to save her children from hell by killing them.

"There might be parallels with that to this case," Fisher said.

Under Utah's very strict laws, a person who intends to commit the crime will be held accountable. It is only when a defendant's mental disorder prohibits a rational understanding of the proceedings against him or the punishment he faces, or prohibits him from participating in his own defense, does it rise to the level of total incompetency.

If a person charged with a first-degree felony is declared incompetent to stand trial, Utah law allows the defendant to be held for treatment for up to 18 months in an attempt to bring him up to competency level. If, after a review hearing at the end of the 18 months, the defendant is still found unable to stand trial, he can be committed for more treatment.

Such is the case with De Kieu Duy, charged with the fatal January 1999 shooting at the Triad Center in downtown Salt Lake City.

The 28-year-old woman has been declared incompetent to stand trial and has been in the state mental hospital since the shooting. She is edging toward competency after receiving mental health care, but experts are divided as to whether she'll ever be ready to face charges of aggravated and attempted aggravated murder.

A February 2004 review hearing is scheduled in the case. If Duy is again ruled incompetent, the state will no longer be able to hold her on the criminal charges but will seek a civil commitment to a mental hospital.


E-mail: awelling@desnews.com