SALT LAKE CITY -
A federal judge has ruled that Elizabeth Smart can testify in the upcoming mental competency hearing for her accused kidnapper. In a ruling issued Monday afternoon, U.S. District Judge Dale A. Kimball denied a defense motion to bar Smart from testifying in the case of Brian David Mitchell.
"Although defendant raises several concerns as to potential projudice from the court allowing Ms. Smart to testify at the competency hearing, the court finds no basis for concluding that her testimony should be excluded on the grounds that its probative value is outweighed by potential prejudice or considerations of undue delay, waste of time, or needless presentation of cumulative evidence," Kimball wrote.
The ruling sets the stage for Smart to confront her accused kidnapper more than six years after she was abducted from her bedroom. In 2002, Smart was kidnapped at knifepoint from her Salt Lake City home. She was found nine months later walking a street in Sandy, in the company of the homeless street preacher and his wife, Wanda Barzee.
Elizabeth is willing to testify, her father told Fox 13 News.
"I don't think any crime victim is anxious to testify about the nightmare they went through," Ed Smart said. "But I think they do it because they want to see justice served."
In court papers, federal prosecutors said they wanted to call Elizabeth Smart to the witness stand to testify about what they claim are inconsistencies in Mitchell's use of religious terminology and references to himself as a prophet; his manipulation of others; his ability to blend in at times; and his rationalization of his conduct.
Defense attorneys claimed Smart's testimony was unnecessary. But in his ruling, Kimball said even psychologists have had trouble questioning Mitchell, forcing them to rely on witness interviews -- including Smart.
"He has been able to get away with it for six years just because he won't help the defense in his own defense," Ed Smart said. "I think that's a horrible excuse for justice not to be served."
Smart isn't the only witness defense attorneys are quibbling over. In a court filing late Monday obtained by Fox 13 News, the U.S. Attorney's Office for Utah pushed to have a pair of expert witnesses present testimony making comparisons between the delusional writings of Brian David Mitchell and those of polygamist leader Ervil LeBaron. Federal prosecutors wrote that psychologists evaluating Mitchell have "seriously misjudged and misunderstood the cotnent and context of the defendant's religious thinking and writing."
Federal prosecutors seek to draw comparisons between Mitchell's manifesto, entitled the "Book of Emmanuel David" and Ervil LeBaron's "Book of the New Commandment." LeBaron was a polygamist leader who ordered the slayings of rivals in the 1970s before dying in prison in 1981. "The Book of the New Commandment" was believed to have been a hit list, preaching blood atonement.
In its filing, the U.S. Attorney's Office for Utah challenged diagnosis of paranoid schizophrenia and a delusional disorder, saying the psychologists misunderstand what Mitchell is writing and how dangerous it can be.
Mitchell's competency hearing isn't scheduled to get under way until Nov. 30, but Smart is testifying out of order because she is leaving to serve a mission for The Church of Jesus Christ of Latter-day Saints.
"She's excited to go on a mission. This has drug on for six years," said Ed Smart. "Certainly another 18 months isn't going to hurt."
Smart told Fox 13 News his family would not object to a plea deal to make the entire case go away, but only if there were terms attached to the deal.
"He is going to be on the sex offender registry and hopefully he'd never see the light of day again," he said Monday.
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"Although defendant raises several concerns as to potential projudice from the court allowing Ms. Smart to testify at the competency hearing, the court finds no basis for concluding that her testimony should be excluded on the grounds that its probative value is outweighed by potential prejudice or considerations of undue delay, waste of time, or needless presentation of cumulative evidence," Kimball wrote.
The ruling sets the stage for Smart to confront her accused kidnapper more than six years after she was abducted from her bedroom. In 2002, Smart was kidnapped at knifepoint from her Salt Lake City home. She was found nine months later walking a street in Sandy, in the company of the homeless street preacher and his wife, Wanda Barzee.
Elizabeth is willing to testify, her father told Fox 13 News.
"I don't think any crime victim is anxious to testify about the nightmare they went through," Ed Smart said. "But I think they do it because they want to see justice served."
In court papers, federal prosecutors said they wanted to call Elizabeth Smart to the witness stand to testify about what they claim are inconsistencies in Mitchell's use of religious terminology and references to himself as a prophet; his manipulation of others; his ability to blend in at times; and his rationalization of his conduct.
Defense attorneys claimed Smart's testimony was unnecessary. But in his ruling, Kimball said even psychologists have had trouble questioning Mitchell, forcing them to rely on witness interviews -- including Smart.
"He has been able to get away with it for six years just because he won't help the defense in his own defense," Ed Smart said. "I think that's a horrible excuse for justice not to be served."
Smart isn't the only witness defense attorneys are quibbling over. In a court filing late Monday obtained by Fox 13 News, the U.S. Attorney's Office for Utah pushed to have a pair of expert witnesses present testimony making comparisons between the delusional writings of Brian David Mitchell and those of polygamist leader Ervil LeBaron. Federal prosecutors wrote that psychologists evaluating Mitchell have "seriously misjudged and misunderstood the cotnent and context of the defendant's religious thinking and writing."
Federal prosecutors seek to draw comparisons between Mitchell's manifesto, entitled the "Book of Emmanuel David" and Ervil LeBaron's "Book of the New Commandment." LeBaron was a polygamist leader who ordered the slayings of rivals in the 1970s before dying in prison in 1981. "The Book of the New Commandment" was believed to have been a hit list, preaching blood atonement.
In its filing, the U.S. Attorney's Office for Utah challenged diagnosis of paranoid schizophrenia and a delusional disorder, saying the psychologists misunderstand what Mitchell is writing and how dangerous it can be.
Mitchell's competency hearing isn't scheduled to get under way until Nov. 30, but Smart is testifying out of order because she is leaving to serve a mission for The Church of Jesus Christ of Latter-day Saints.
"She's excited to go on a mission. This has drug on for six years," said Ed Smart. "Certainly another 18 months isn't going to hurt."
Smart told Fox 13 News his family would not object to a plea deal to make the entire case go away, but only if there were terms attached to the deal.
"He is going to be on the sex offender registry and hopefully he'd never see the light of day again," he said Monday.
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