The Salt Lake Tribune, Mar. 19, 2003
BY STEPHEN HUNT, THE SALT LAKE TRIBUNE
Brian David Mitchell and Wanda Barzee may believe God ordered them to kidnap Elizabeth Smart, but legal experts say divine revelation will be little help to them in the courtroom.
“Being egged on by another is not a defense,” said Assistant Utah Attorney General Michael Wims. “It is not a defense that God urged them to do it.”
Mitchell, 49, and Barzee, 57, were charged Tuesday in 3rd District Court with aggravated kidnapping and five other felonies in connection with the June 5 abduction of then-14-year-old Elizabeth and the attempted abduction of her cousin in July.
Barzee told a friend that on Thanksgiving 2000, Mitchell received a prophecy from God to take Smart and six other girls as plural wives.
But Utah’s insanity law — the strictest in the nation — focuses on a defendant’s intent to commit a crime, leaving little room for theological explanations or excuses.
“You’ve got a defense only if, as a result of mental defect or disease, you cannot form the intent necessary to commit the crime,” Wims said.
A mentally ill defendant can be held accountable in a kidnapping case if he intentionally detained a victim and understood the victim was human, defense attorney Mark Moffat said.
“Utah law makes a defense of insanity extremely difficult under any circumstance,” Moffat said.
Questioning Competency: One of the first questions to resolve in the Smart kidnapping case is whether the defendants are mentally competent. A judge likely will probe whether they are able to understand the charges against them and the potential punishments; and whether they are able to consult with their attorneys and participate in the proceedings.
Judges have psychologists interview the defendant and submit reports. If the experts disagree, a hearing may be held.
Salt Lake District Attorney David Yocom said Tuesday that his office would push for quick resolution of the competency question. “We want [psychologists] appointed immediately,” Yocom said.
If either Mitchell or Barzee is found incompetent, he or she would receive treatment.
Utah law allows a criminal defendant charged with a first-degree felony, such as aggravated kidnapping, to be treated for up to 2 1/2 years at the Utah State Hospital. After that, a defendant must be released, although a judge may order civil commitment to a secure institution if the defendant remains a danger to himself, herself or others.
Arguing Insanity: A competent, yet ill, defendant can argue at trial that he is not guilty due to insanity — but the threshold is high.
Moffat helped challenge Utah’s insanity statute on behalf of Tomas Herrera in one of the few cases where a defendant was allowed to plead not guilty by reason of insanity.
In 1991 in West Jordan, Herrera — a diagnosed paranoid schizophrenic — shot and killed his common-law wife, Claudia Martinez, believing she was a non-human double.
Prosecutors agreed Herrera was not guilty by reason of insanity based on a psychiatrist’s report that he suffered “substitution delusions.”
The doctor, however, found Herrera knew the victim’s mother and brother were human beings and had intentionally tried to kill them.
Herrera pleaded guilty and mentally ill to the attempted murder counts, was sentenced to 1 to 15 years, then challenged the constitutionality of Utah’s insanity statute.
In 1999, in a split 3-2 decision, the Utah Supreme Court upheld Herrera’s convictions for attempted murder.
The inability to understand right from wrong remains the standard in many states and in the federal court system.
It is also a standard that might fit the defendants in the Smart case. “If God’s telling you to do it, is it wrong?” asked Moffat.
Mitigating Factors: A defendant also can raise the issue of mental illness to lessen the severity of a conviction.
For example, a mentally ill defendant in Utah cannot claim insanity if he killed someone “believing it was Adolph Hitler and you were going to save the Jewish race, or an enemy soldier believing you were going to be killed,” Moffat said, but he could still offer that explanation to a jury hearing the case.
“It may mitigate the facts, but it is not an absolute defense to your conduct,” Moffat said.
Defendants also may raise disorders such as post-traumatic stress disorder or battered women’s syndrome to explain their actions.