SALT LAKE CITY — In many ways, just looking at Elizabeth and her sister Mary Katherine today tells the story of how long "Elizabeth Smart" has been a household name throughout the nation, and how long their family has waited for justice to be served.
Around the world, the picture of Elizabeth in her "missing" poster, of her in her yellow vest jacket with her hair pulled back, became ingrained in people's minds.
Today, Elizabeth is 22. And Mary Katherine — who many remember as a little 9-year-old girl who feigned sleep while she watched her older sister being taken away at knifepoint from their own bedroom — is now an 18-year-old high freshman at Brigham Young University.
Now, after seven years of motions, appeals, competency evaluations, red tape and testimonies from experts, witnesses, and family members, the trial of Brian David Mitchell is finally scheduled to begin.
The former street preacher and self-proclaimed prophet accused of kidnapping and sexually assaulting Elizabeth Smart will enter U.S. District Judge Dale Kimball's courtroom Monday for the start of what is expected to be at least a month-long trial.
Several key witnesses are expected to generate huge media attention, including Elizabeth Smart who is being flown back to Utah from her LDS mission in France early to testify. Mary Katherine is also expected to testify in court for the first time as is Lois Smart, their mother.
The Mitchell case has been as high profile as any trial that has ever occurred in Utah before, and is expected to attract international attention.
For Smart's family, it's an event they have waited for for many years. Ed Smart, Elizabeth's father, who has been outspoken in the past about the case and about protecting the rights of his daughter, declined an interview with the Deseret News for this story because he did not want any last minute problems due to something he might say or any publicity it might generate. He only acknowledged he was anxious for the trial to begin.
One of the biggest questions surrounding the trial is what kind of case will the defense present? Will Mitchell's lawyers attempt to defend their client as innocent until proven guilty, despite seemingly insurmountable evidence against him? Or will it turn into a case of Mitchell's competency once again coming into question and whether he is not guilty by reason of insanity?
Smart was abducted at knifepoint from her bedroom in 2002 when she was 14. She was found nine months later, wearing a wig and a sort of makeshift veil, walking along State Street in Sandy with a man who called himself Peter Marshall and his wife, whom he called Juliet. The "Marshalls" were later identified as Mitchell and Wanda Barzee. Elizabeth at first identified herself to police as Augustine Marshall.
After 15 to 20 minutes of questioning, police were able to get Smart to admit who she was when she bowed her head and with tears in her eyes said, "Thou sayeth."
Mitchell and Barzee were charged in state court with five first-degree felonies, including aggravated kidnapping, aggravated sexual assault and aggravated burglary, and one second-degree felony count of attempted aggravated kidnapping. The charges stemmed from the alleged abduction of Smart and the attempted abduction of Smart's cousin.
Mitchell and Barzee were both indicted by a grand jury in March of 2008 on federal charges of kidnapping and unlawful transportation of a minor across state lines for the purpose of sex, and it is those charges Mitchell will stand trial for beginning Monday.
Barzee was declared mentally incompetent to stand trial. Mitchell was originally declared competent and a trial date was set. But following a singing episode in court, a new competency hearing was ordered.
Mitchell's singing and outbursts became routine with every subsequent hearing to date. His singing and being removed from the courtroom have become trademarks of every court hearing when Mitchell has been present.
On Oct. 10, 2008, a day after 3rd District Judge Judith Atherton ruled Mitchell was not eligible for involuntary medication to restore his competency, the case was switched from the state court system to federal court.
Not long after that, Barzee was determined to be competent to stand trial after months of treatment with anti-psychotic medication administered, at least initially, involuntarily from a court order. As soon as her competency was restored, she struck plea deals in both her state and federal court cases. She pleaded guilty and was sentenced to federal prison in exchange for her cooperation in the government's case against Mitchell.
In 2009, Mitchell was determined by Kimball to be competent to stand trial in federal court following a two-week competency hearing. The hearing was highlighted by Elizabeth herself taking the witness stand for the first time and for 105 minutes delivering remarkable and unflappable testimony with frank and disturbing details of her nine months in captivity.
Smart described Mitchell as a master manipulator who used religion as a front to get sex, drugs, alcohol and anything else he wanted.
Mitchell's defense team has attempted multiple times to get the trial moved out of Utah, saying it would be impossible for a fair and impartial jury to be seated because of the immense media attention the case has received.
About 600 questionnaires were originally sent out to potential jurors — more than in the Olympic bribery scandal — Kimball said because so many potential jurors were questioned, and based on the answers to their questionnaires, he is confident an impartial jury can be seated.
When the trial begins Monday, attorneys are expected to question 35 potential jurors a day until they have seated both the 12-member jury panel and alternatives.
Legal professionals not involved with the Mitchell case told the Deseret News they also believe a fair and impartial jury can be found in Utah. But they noted a fair jury did not mean finding 12 people who had never heard of either Elizabeth Smart or Brian David Mitchell.
"You'd be looking under a rock and questioning their ability to make informed decisions," said former BYU law professor and legal expert Marguerite Driessen. "Just go back to the OJ (Simpson) trial. It's not whether or not you've ever heard anything."
"The object is not to find 12 Rip Van Winkles who have been asleep for the past 20 years," added University of Utah law professor and former federal judge Paul Cassell.
Jury selection should be based on whether potential jurors can reach a conclusion solely from evidence presented to them in the courtroom, the legal experts said.
"I think the jury selection may be the most difficult and time-consuming part of the trial, along with the expert testimony," Cassell said.
In motions filed prior to the trial, Mitchell's defense team argued that a change of venue was needed because Kimball concentrated too heavily on selecting potential jurors who were open to the idea of not guilty by reason of insanity.
"The district court has taken onto itself to make the determination for the defense of its best strategy, namely that an approach of advancing an insanity defense singularly is more important than advancing a case on factual innocence," the defense wrote in court documents.
Mitchell's attorneys also noted that the "most striking aspect" of the case was "the continued insistence by the district court, the government and the government's expert that factual guilt may be presumed in this case."
Prosecutors concurred that factual guilt should not be presumed. But they also said based on court filings and what the defense has said in court, it was not unreasonable to assume the insanity defense would end up being a key issue.
"The defense has made plain that Mitchell will be asserting an insanity defense. Given this clear intent, the district court has been vigilant in identifying those jurors who have a fixed opinion about Mitchell's mental state at the time of the crime or who could not follow the court's instructions and return a verdict of not guilty only by reason of insanity if the evidence supported that result," the government said.
Driessen said it is true that the burden is on the prosecution to present the case to the jury.
"Just because somebody did commit a crime, (prosecutors) actually have to prove their guilt beyond a reasonable doubt with admissible evidence in trial," Driessen said. "There are lots of things you and I have heard that may or may not be admissible in court. They're starting with kind of a clean slate. They have to establish every element of the crime beyond a reasonable doubt."
Nevertheless, legal experts concur that such a task shouldn't be very difficult considering the mountain of evidence expected to be presented against Mitchell. This isn't a case of claiming someone else was responsible for Smart's abduction, they say.
Cassell believes the case "may dissolve into a battle of the experts" debating on the witnesses stand whether Mitchell was competent at the time of the alleged crime.
But that would present another challenge for the defense.
Both Cassell and Driessen agree that a verdict of not guilty by reason of insanity is difficult to prove under the federal standard.
"The defendant had to have no understanding about what he was doing and why it was wrong," Cassell said. "Given the length of time Elizabeth was with Mitchell, it may be hard to convince a jury he didn't have mental awareness."
If the defense opts to put its effort into the insanity defense, the burden of proof essentially shifts from the government to the defense, Driessen said. Prosecutors no longer would have to prove beyond a reasonable doubt that Mitchell committed the crimes he is accused of, because his attorneys would essentially be admitting to them, she said.
Instead, the burden of proof would fall on the defense to show clear and convincing evidence that their client suffered from such a severe defect that he couldn't tell right from wrong.
"You can actually be a total loon, you can be crazy by every lay appreciation of that term, and not be insane for avoiding criminal liability for these actions," Driessen said. "You have to be so crazy you can't tell right from wrong. It's very difficult to establish you're that far removed from reality and you cannot tell the difference between right and wrong."
Neither Cassell nor Driessen say they would put Mitchell on the witness stand in his own defense if they were his defense attorneys.
"It's playing with fire to put him on the stand," Cassell said.
The trial will run every weekday from 8:30 a.m. until approximately 2 p.m. The first week is expected to be mainly jury selection.
The U.S. Attorney's Office submitted a list of 22 possible witnesses in presenting its case and 25 rebuttal witnesses.
The list of prosecution witnesses includes Elizabeth Smart, Mary Katherine Smart, Lois Smart, law enforcers who were present when Mitchell was arrested and later interviewed, people who had interaction with Mitchell while Elizabeth was still missing such as store owners and restaurant workers, and workers or former employees at the Utah State Hospital.
The list of rebuttal witnesses includes Dora Corbett, Barzee's 89-year-old mother. Barzee herself is not on the prosecution's witness list, though there is a possibility that taped interviews with her after her competency was restored and before she was sentenced may be presented.
Other possible rebuttal witnesses include Dr. Michael Welner, a renowned forensic psychiatrist from New York City whose comprehensive report on Mitchell combined with his testimony during the competency hearing was credited (in addition to Smart's testimony) as being the key to Mitchell being found competent; and Dr. Noel Gardner, another expert witness in each of Mitchell's competency hearings.
Kimball has scheduled time for the trial through Dec. 10. After that, he is worried about getting into the Christmas season and the hardships that such an extended schedule could create on a jury pool.
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