Judge Judith Atherton wrote in a 44-page decision that the likelihood that psychotropic medications would help Mitchell is too low to warrant forcing him to take them.

The ruling means Mitchell may never become competent to stand trial in state court for the kidnapping.

Prosecutors, however, have the option of appealing Atherton's decision to the Utah Supreme Court. Also, a federal indictment against the self-proclaimed prophet may now proceed.

Despite those legal options, Thursday's ruling proved disheartening for state prosecutors and the Smart family.

Ed Smart, Elizabeth's father, said Atherton's decision puts Mitchell's rights ahead of his daughter's.

"I'm just surprised that the victim's rights are so much less than the predator's," he said. Smart said it's perplexing that there is concern that forcibly medicating Mitchell would alter his state of mind, because the man was often intoxicated while holding his daughter captive.

"When he's out there drinking himself into a frenzy as Elizabeth has previously told me, what's the difference anyways?" Smart asked, referring to criteria in Atherton's decision about the risk of side effects from forced medication.

Prosecutor Alicia Cook said the state was disappointed by Atherton's findings, but the state has options to keep Mitchell confined outside of a trial and conviction, including asking that he be committed to the Utah State Hospital.

Atherton based her decision on testimony from a September 2007 hearing in which a defense expert estimated the chances of restoring Mitchell's competency at less than 50 percent.

Defense expert Jeffrey Metzner, a forensic psychiatrist from Colorado, testified that one problem with trying to predict Mitchell's progress is that he has been diagnosed with "delusional disorder," which is fairly rare. Only 30 people out of every 100,000 have the illness and it is not widely addressed in the professional literature.

Metzner claimed the case studies on the illness are flawed because of the small size of the sample population.

But experts for the prosecution claimed there was a 70 percent chance that medicating Mitchell would make him fit to stand trial.

Utah State Hospital psychiatrist Paul D. Whitehead, who was Mitchell's doctor, based his prediction of success on the case studies and his own clinical experience.

Atherton, however, wrote in her decision that the case reviews and anecdotal evidence cited by Whitehead were not "scientifically reliable enough" to make predictions about defendants, like Mitchell, who have delusional disorder.

Mitchell's wife and co-defendant, Wanda Eileen Barzee, had a similar forced-medication hearing in 2006, after which Atherton ruled Barzee could be forcibly medicated.

In May, officials at the Utah State Hospital began preparing to medicate Barzee. Her progress is unknown because of medical confidentiality protections.

Barzee has been at the Utah State Hospital since early 2004, when Atherton found her incompetent to stand trial.

According to previous court testimony, Barzee - who claims she is the "mother of Zion" and receives messages from God through her television - has refused treatment and made no progress toward competency.

Mitchell, who has been at the Utah State Hospital since August 2005, also has refused treatment.

Mitchell's defense attorney, Heidi Buchi, said she's pleased with Atherton's ruling.

"We believe that given all of the evidence that was presented and all the evidence in the case law . . . that she made the only decision she could," Buchi said.

To order Mitchell forcibly medicated, Atherton had to find "a substantial likelihood" of restoring competency, that important governmental interests are at stake, that there are no less-intrusive treatments that would achieve the same results and that giving the drugs would be medically appropriate.

The federal case against Mitchell stems from an indictment handed down this year by a federal grand jury charging Mitchell and Barzee with interstate kidnapping and unlawful transportation of minor.

Pursuing the federal indictment provided a safety net if the state case failed, U.S. Attorney Brett Tolman has said.

U.S. Attorney's Office spokeswoman Melodie Rydalch said Thursday her office is now "weighing the options" to prosecute Mitchell, now that Atherton's decision has stalled the state's case.

Barzee, 62, and Mitchell, 54, are accused of kidnapping then-14-year-old Elizabeth Smart on June 5, 2002, from her Federal Heights home. They were arrested in March 2003 while walking in Sandy with Smart. Mitchell apparently wanted to make Smart a plural wife along with Barzee.

mrogers@sltrib.com