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Transcript: Sentencing in Elizabeth Smart kidnapping

First Published May 25 2011 02:25 pm • Last Updated May 25 2011 06:53 pm

This account of Wednesday’s sentencing of Brian David Mitchell in the kidnapping of Elizabeth Smart is being produced by staff of The Tribune. It is not an official court record.

In December, a jury convicted Mitchell of felony kidnapping and unlawful transportation of a minor across state lines for the purpose of engaging in sexual activity.

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Mitchell abducted the then-14-year-old Smart at knifepoint from her Salt Lake City home in the early hours of June 5, 2002.

She was rescued nine months later, on March 12, 2003, after citizens spotted her with Mitchell and Wanda Barzee on a sidewalk in Sandy.

Judge Dale Kimball: Good afternoon everyone. We’re here in the matter of United States vs. Brian David Mitchell. I understand at least for the first part of this hearing, the defendant’s presence is waived.

Let’s start with you saying whatever you need to tell me regarding sentencing factors. I’ve read all your papers.

Prosecutor Robert Steele: One I’d normally mention at the end: We are asking they recommend to the Board of Prisons that they consider the medical records. We are providing them. We have also provided a cover letter for those, not part of today’s hearing, but part of wanting to get it attached to the presentence report.

There’s only one factor that can fairly be weighed. That’s Mr. Mitchell’s mental health. Everyone has heard plenty about that. I did get the law wrong until 6 months ago. That was a discouraged factor, now it’s an encouraged factor.

Defense attorney Parker Douglas: I’m happy to address any questions the court has. I’ve said everything in moving papers. I’d respond just briefly to ... the ... argument. The guideline, says in its present form, [it] has to be offensive conduct. I think the guideline isn’t applicable on its face.

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Kimball: How about attempted obstruction?

Douglas: The government hasn’t asked for attempted obstruction.

Kimball: That doesn’t prevent me from giving it.

Douglas: Two things: The case the government cites, what he have here doesn’t rise to fifth circuit and ... (inaudible). The second thing I would point to: We’re talking about a process where the government moved for the competency finding, ... had to respond to a competency finding, worked with court, by which the defendant had a track record of activity to make it as less intrusive as possible. I think we accomplished that.

Kimball: What about the defendant’s refusal to cooperate with interviewers. Isn’t that a form of obstruction?

Douglas: I don’t know what Mr. Mitchell was doing. I do think if we talk about silence and refusal to cooperate, it would be close to the right to remain silent. I’d be worried about that if your obstruction finding were based on that. This is a case, given the history, that we would still respectfully say his mental deficiencies like psychopathy or others, we were faced with having to deal with somebody who specifically had problems with the court process. We dealt with that as best we could. Obstruction is a very specific thing, usually evidence tampering, witness tampering. We had attempted destruction of evidence have nothing of that, except to be fair to your honor.

Douglas: I think that it would be a stretch to make a finding that refusal to talk to some evaluators amounted to obstruction. They make out of his silence what they will. He was present. We helped [him] be present, and he was present. I don’t know how to put it any more boldly than that.

Kimball: Anything else?

Douglas: No, not on obstruction. ... I would say that the history that developed at trial where we saw that Ms. Barzee and Mitchell acting in concert before the events took place brings that into question. On vulnerable victim, I think the court is looking at facts that also go to the government’s motion for an upward departure for extreme and heinous conduct. I didn’t see any ... (inaudible). I could be wrong, but the law for vulnerable victim is very clear. If the factors are for the offense guideline, taken in to account the specific characteristics we’re talking about, ... they cannot be double counted. The presentence report takes into account the age of the victim, the length of time Ms. Smart was held. That Mr. Mitchell used a dangerous weapon is taken into account. The sexual exploitation and abuse is taken into account. That could, with the case law, ... caution against at least application of the vulnerable victim. ... Frankly we are looking at conduct that is reprehensible. I wouldn’t argue against it. We never advanced anything to the contrary at trial. This is horrible conduct. That’s why the gallery is full today. But I don’t think the government’s cases supports application of the vulnerable victim enhancement. ... Mr. Mitchell chose this victim once, not daily for nine months. I’m not saying this isn’t horrible conduct. It is. We never said that at trial. We never said that in closing.

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