Motion denied to dismiss case against Mitchell

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Even though the state prosecution of alleged Elizabeth Smart kidnapper Brian David Mitchell has ground to a standstill, 3rd District Judge Judith Atherton on Thursday refused to dismiss the case.

The defense claimed the looming kidnapping and sexual abuse charges are causing Mitchell unnecessary anxiety and concern, which violates Utah's constitutional protection against unnecessarily rigorous treatment of criminal defendants.

Prosecutors countered that the constitution refers only to the treatment of prisoners in penal institutions. Mitchell has been confined mostly as a patient of the Utah State Hospital. Prosecutors also argued that anxiety is a natural consequence of facing criminal charges.

Mitchell's prosecution came to a halt last year when Atherton ruled Mitchell could not be forcibly medicated to try to restore his mental competency. State experts had testified Mitchell was unlikely to recover without the help of psychotropic drugs. But the judge was not convinced the drugs were substantially likely to restore Mitchell's competency.

Mitchell, meanwhile, is undergoing a competency evaluation as part of a federal prosecution for interstate kidnapping and unlawful transportation.

Elizabeth's father, Ed Smart, said he was pleased the state case was not dismissed.

"I think all the options need to be left open," Smart told news reporters after the hearing. "We don't know what will happen with the federal case."

Mitchell, who during past court appearances has sung hymns and ranted at the judge, was not required to appear Thursday.

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

Barzee is being forcibly medicated to try to restore her competency, a process ordered by Atherton that has been under way at the Utah State Hospital since May.