Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Elizabeth Smart Kidnapping Case In Federal Court Starts – Is He Competent To Stand Trial?

The good people of Salt Lake City have been chomping at the bit for a currentt trial. It has been a long time in coming. It is the trial of the alleged abductor of Elizabeth Smart. 57-year-old Brian David Mitchell (hereinafter, the “Defendant”) is the man accused. After approximately 8 years of delay, and a change of jurisdiction, he is finally going to get his “day” in court.

Jury selection in the criminal trial started yesterday.

The Defendant faces federal charges of kidnapping and unlawful transportation of a minor across state lines – for allegedly taking Smart to San Diego in the 2002 abduction. If convicted, the Defendant, who was once an itinerant street preacher could spend the rest of his life in a federal prison.

As Ms. Smart’s father said of the trial last week, “It’s certainly been a long time coming”.

The matter began as a state prosecution back in 2003. Back then, the Defendant was charged with aggravated kidnapping and aggravated sexual assault…in state court. That prosecution got stalled after the Defendant was diagnosed with a delusional disorder and deemed incompetent to stand trial.

The ruling left the Defendant incarcerated in the state hospital. However, while there, he refused treatment. It was then that federal prosecutors stepped in . This year, the Defendant was judged competent to stand trial in federal court after an expert testified that he was simply “malingering,” essentially faking a mental illness to avoid prosecution.

The trial began yesterday despite a number of defense motions including a request by the Defendant to wear the white robes he would wear while preaching and moving the matter out of Utah because of the taint on the jury pool as a result of publicity being denied.

The defense also maintains that the Defendant is ill and unable to participate in his own defense. In court papers, defense attorneys have said they’ll mount an insanity defense, claiming their client was so impaired at the time of the alleged crime that he can’t be held legally responsible.

As evidence the defense is expected to rely on testimony from mental health experts who have evaluated the Defendant and will likely point to a 27-page manifesto he had drafted – “The Book of Immanuel David Isaiah” – as evidence of his delusions. The tome lays out the Defendant’s own brand of religion that mixes revelations from early Mormon theology with excerpts from the King James version of the Bible and the writings of several New Age philosophers. An addendum to the treatise, written after the alleged kidnapping, proclaims the Defendant a prophet and predicts his wife, Wanda Eileen Barzee, will take “seven times, seven sisters,” an apparent endorsement of polygamy.

Meanwhile, said wife has already pleaded guilty in the matter.
As part of the deal with prosecutors, she agreed to cooperate with prosecutors.

I hate it when saints break up…don’t you?

Attorney Sam’s Take:

As this trial unfolds, it is likely to be an interesting procedure packed with legal issues that will not end until all appeals (should there be a conviction) are finished.

There are a couple of issues which deserve our attention from the onset. First of all, there is the question of the Defendant’s competency to stand trial.

There is a common misconception that if a criminal defendant is either mentally slow or emotionally crippled, thent he or she is not competent to stand trial. If this were true, there would be much fewer criminal trials that ever see the light of day.

The test for competency, although the definition varies from jurisdiction to jurisdiction, is much more rigid than that. The defense must demonstrate, through the use of expert witnesses usually, that the defendant is so “out of it” that he/she does not understand who the judge is, what the defense attorney does, etc. Simply being suicidal, retarded or unbalanced is not enough.

Nor is proclaiming oneself a prophet.

Apparently, the Defendant had been able to demonstrate he fit the criteria after arrested for the kidnapping. However, after years have passed and there were issues with his taking his meds, the court was finally persuaded by the government’s expert that he was no longer incompetent.

It is not unheard of for criminal defendants to try to delay their “day of judgment” by any means necessary…including feigning incompetency.

You may also be wondering how the matter could jump from state to federal court. Because the alleged kidnapping crossed state lines, the federal system has jurisdiction of the case. Of course, the state could also prosecute it because the starting act of said kidnapping occurred in that state.

Federal statutes and courts are often harsher in many ways than that of a given state. Clearly, especially with the public interest in the matter, the federal prosecutors found it necessary to bring the Defendant’s matter to federal court where they could more easily force the Defendant to “justice”.

Claiming the glory of any possible conviction probably did not hurt either!

If you are facing prosecution in either state or federal court and wish to discuss it with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://www.wwlp.com/dpps/news/national/west/trial-begins-8-years-after-smart-kidnapping-nt10-jgr_3636366

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