Transcript: Sentencing in Elizabeth Smart kidnapping

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.

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.

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.

Kimball: Thank you, Mr. Douglas. Mr. Viti.

Viti: Thank you, your honor. I will address my remarks in the order Mr. Douglas raised the issues, and what I will do is just focus on the objections that counsel raised in their sentence pleadings. With respect to the obstruction of justice enhancement, the defendant argued it should apply because we failed to show it related to the offensive conviction. ... Finally we don't see what else it could be. ... If the defendant during the course of any proceeding perjures himself or destroys evidence, all acts committed after the completion of the crime for which he is charged — then it would always be inapplicable.

Kimball: What is the obstructive conduct?

Viti: The conduct is as follows: It's what your honor found in your competency order. That issue is whether all the evidence that was presented ... whether there's proof that the defendant committed acts intended to present himself as incompetent. ... This court made specific findings that the religious persona he displayed in court was designed to derail these proceedings.

The defendant accurately read and exploited the vulnerabilities in the system that prevents mentally incompetent people from standing trial, he had to present a prophetic persona ...

This court has found he has been effective in stalling his legal proceedings for 7 years.

Dale Kimball: It doesn't matter the federal trial was not stalled very much?

Viti: We are not asking for them to enhance for anything the defendant did in the course of this trial. We are not asking for any of that for that enhancement to be based on his in-court conduct on the trial.

Kimball: With specific reference to the competency order?

Viti: The evidence demonstrates a pattern of activity that he has done everything he can to delay his standing trial. Finally, the defendant argues that it was the U.S. that delayed these proceedings, but it was the ... the U.S. reacted to the defendant's conduct, nothing more. That was the result of the defendant's conduct. With respect to the organizer/leader, since Wanda Barzee acted in concert ... she felt it was her fault, the enhancement shouldn't be applied. ... We've proven this enhancement applies, they are set fourth regarding this enhancement. With the defendant's contention it was Ms. Barzee who directed him to carry out the plan. It was he who convinced her that it was a commandment of God ... the manipulation and control now points to equal ... the defendants worked in concert should not negate the enhancement ... The defendant's actions in devising this plan the enhancement for this applies. With respect to the vulnerable victim enhancement, the defendant contends that for purposes of this enhancement, the vulnerability should be assessed at the time of offense. Since the defendant's behavior created this vulnerability, it was only after the offense that his behavior rendered her vulnerable. His conduct did render her more vulnerable to the ongoing crime of kidnapping, I'll give a dramatic example:

Remember what the defendant did before Detective Richie confronted them in the library. Recall the reasons they gave. If not for the actions of the defendant, her kidnapping ends that day. At the time of the commission of the offense, it is a continuing crime, interstate transportation of a minor, committed in early October 2002. After 4 months of captivity, but for the submission of the victim, he was made vulnerable for the commission of that crime. The defendant also argues that finding her a vulnerable victim, the Mann Act does not apply, since tragic personal circumstances that attend to many Mann Act violations. Many of these characteristics are tragic personal circumstances, runaways, alcohol or drugs, come from unstable homes. This does not render them vulnerable as a class. We need to recall some things about the Scott case. The personal traits of that personal victim. She was small, fragile, naive ... consider those traits. I did focus on those traits. We're not asking the court to find her vulnerable for that class, but for the individual characteristics brought on during that 9 months he held her captive.

Viti: The defense argues in great length that the defendant's conduct cannot render a victim vulnerable. He deftly dissects and analyzes and comments on the cases the government cited. But he cites no case for the proposition that a defendant cannot create the vulnerability, and it makes sense there's no case on it. If you have an individual whose dining with a woman and during the course of that dinner slips a date-rape drug into her drink, brings her home and rapes her, is there any doubt that his conduct created the vulnerability and that renders her a vulnerable victim? That's exactly what this defendant did. He tries to distance himself a little bit from the facts of the case the government cited. ... The last point, your honor, is nowhere does the defense mention that the vulnerable victim enhancement after the 1997 amendment to the guidelines includes conduct that is relevant conduct. That is not the offensive conviction. Even if we accept for a moment that the vulnerability must exist at the time of the defendant's conduct, the enhancement would still apply. Because his conduct during those nine months held her vulnerable to the relevant conduct of aggravated sexual abuse. ... I would ask this court to consider the following: If he kidnapped Ms. Smart and drugged her before every sexual abuse, would she have been rendered a vulnerable victim? This case shows he did much more to Ms. Smart. I would ask this court in dealing with whether she was vulnerable ... to recall the test of Trevelin Colianni, who observed the trio of Ms. Smart, Barzee and Mitchell at a Burger King in North Las Vegas sometime on March 11, the day before Ms. Smart was found in Sandy, Utah. The day before the last time she was raped. He was so concerned after observing the three that he called police. Asked why, his response — and this is a quote — "the look in this little girl's face." He was asked to describe that look, his response: "Afraid. Very afraid." ... It was the defendant's conduct that etched that look in the defendant's face. ... I believe Mr. Colianni recognized ... that that little girl was unable to protect herself and required greater societal protection.

... The defense raises a very improper issue of double counting. If two guidelines serve different purposes, it follows that both could be applied based on the same conduct. The departures all could be applied on the same conduct: [the] extreme conduct departure, the vulnerable victim enhancement. In need of more protection, the extreme nature is based on extreme behavior of the client.

The U.S. has not found any case for comparative analysis. Rejected by 10th Circuit vs. Begay, right out of this circuit, we respectfully disagree that Begay "likely suggests" comparative analysis is necessary. We argue it definitely is not required.

Aggravated sexual abuse, assault, before it departs, it simply is without foundation in the guideline's text, and thus we reject it. On the 3553A aggravating factors, other than what we cited or noted in memorandum, beginning approximately 6 months after he kidnapped Ms. Smart, the kidnapping guidelines changed. If you did new guidelines, the cross references would not apply. In fact, using that guideline, your honor, without any of the contested departures ... this offense level would be 42, with criminal (inaudible). The guideline range is 360 to life. [I] ask the court to consider that when analyzing the ... factors.

Douglas: The government has argued that the conduct during the ongoing offense is relevant. I've cited cases throughout both on the kidnapping and the Mann Act that Mr. Viti has addressed in U.S. vs. Caballero, which Mr. Viti ignores, we must only apply this if the characteristics are atypical of criminal conduct. I would say that the Mann Act cases squarely show the victims are typical of those cases. Mr. Viti makes a good point that kidnapping is an ongoing offense, that she was kidnapped again every day is on the court could not rest on ... (inaudible) ... clearly puts it this way, that the court is careful to say the rule is not put to counsel the choice to do competency or requestion a hearing for those who may be incompetent. We came into this court room in 2008, actually across the hall, and the United States asked for a competency hearing. We were bound to follow that if we didn't oppose it. I put it to this court that if we were to oppose it ... (inaudible).

Kimball: I don't think that argument is based on the competency hearing or that someone asked for it. It's a variety of delaying tactics surrounding all of that before.

Douglas: The evidence as far as you have, what we haven't seen is the testimony at trial. The testimony of the government's two mental health experts did change on that point. [They] didn't say that he was feigning religiosity. I would say that feigning religiosity requires the presence or absence ... (inaudible). I don't think that feigning religiosity helps that at all. I would say quite frankly, on that much evidence, cautions against this court making a finding when it doesn't need to on the nature of ... religious sincerity.

Kimball: Mr. Steele, do you have anything else you want to say? ... All right we'll bring Mr. Mitchell in now and go to the victim's statements. After those I'll see if the lawyers want to say anything else. If they do, I hope they'll be brief. Then I will rule on these matters and sentence.

[Mitchell enters the courtroom, singing.]

Kimball: Ms. Smart or Mr. Smart, whichever one of you is going to go first.

Ed Smart: Your perversion and exploitation of religion is not a defense. It is disgusting and it is an abuse that anyone should despise. Regardless of what the defense has proposed, you put Elizabeth through nine months of psychological hell. I hope at some time in your life you find what you have done is wrong. Whether during your time on earth or in eternity, you're going to have to face the guilt. ... I hope at some point in your life you're going to be able to repent of it.

Elizabeth Smart: I don't have very much to say to you. I know exactly what you did. I know that you know what you did was wrong. You did it with a full knowledge. I also want you to know that I have a wonderful life now, that no matter what you do will it affect me again. You took away 9 months of my life that can never be returned, but in this life or next, you will have to be held responsible for those actions, and I hope you are ready for when that time comes.

Viti: On June 5, 2002, the defendant Brian David Mitchell after careful planning, preparation and premeditation, cut the screen on a kitchen window and entered the bedroom where Elizabeth was sleeping with Mary Katherine, held a knife to her neck and threatened to kill her if she cried out or tried to escape. He carefully prepared weeks before for her long-term captivity, Wanda Barzee was waiting there after the defendant and Wanda performed a so-called marriage ceremony. The 14-year-old — who had not yet begun to date boys, she was just a little girl who had not yet begun her period — the next day he tethered her with a cable, one end of which was locked around her ankle, the other end attached to a cable, strung between two trees.

Kimball: I've heard the evidence.

Viti: Smart's world changed, changed suddenly, violently and without warning. For Ms. Smart, the boogeyman under the bed and the monster in the closet became real. ... Mary Katherine uttered words no parent should ever have to hear: He had taken their daughter.

For the next nine months, Ed and Lois Smart endured the agony of parents whose child has been taken. For nine months, a mother and father were left wondering if there daughter was dead or alive. And for those nine months, she endured and survived. She endured and survived the defendant's cruel and heinous conduct. During the course of that conduct, he attempted to mentally and emotionally separate her from a past life with a family she loved and who loved her. To this goal, he stripped her of her name and presented her a new identity. He presented her with a cruel choice. She could either cut or burn her favorite red pajamas ... she chose to burn them because she could not actively destroy a memory of her past. ... Ms. Smart had retrieved a pin from the ashes of what was once those pajamas in order to cling to something that reminded her of her past. She tried to hide it but the defendant found it and, understanding its importance to her and its ability to empower her, he threw it away. For those nine months, she was forced to engage in conduct so foreign, contrary and repulsive to the young girl she was and the young adult she was now becoming ... For nine months Ed and Lois Smart were denied the company for their daughter and all the joy, happiness and yes sometimes aggravation and frustration that comes with raising a teenager. They were denied the opportunity to serve as her mom and dad. Her siblings were denied the company of their sister. Her grandparents were denied the company of their granddaughter ... Her friends were denied the company of their friend. Those nine months can never be recovered. What Ms. Smart lost during those nine months can never be replaced.

We are here today for the defendant's sentence. Those of us involved in the criminal justice system, who take their roles and responsibilities seriously struggle to find that point where law and justice intersect. This struggle is never more important or difficult than at sentencing. We believe that this good faith effort to locate that point of intersection was evident by all the parties throughout the course of this faith. ... recognizing this point is difficult in many cases. However Your Honor, this case is not one of those cases. The United States respectfully submits that sentence of life is the sentence where law and justice intersects. ... under the guidelines, even if this court were not to apply the contested enhancements ... the defendant's guideline level would include a sentence of life. Considering and applying those factors, this case ensures that a life sentence is a reasonable sentence. ... we are confident that a life sentence is the point where law and justice intersect. What justifies this point? It's the nature and ... of the defendants crime and conduct.

The nature and the circumstance of the nature of the defendant's conduct, it's the shock and horror that we all feel when recounted with such poise, dignity and grace by Ms. Smart. What do we do when we posses such strong feelings about this case, an examination of those feelings, the heartland, the feelings that are evoked in this case. Unfortunately there's a heartland of kidnapping cases, this case is not in that heartland, just what Elizabeth Smart endured beginning on June 5, 2002, to March 12, 2003. That's why these facts evoke these feelings. We need not ignore these feelings, as a nation of law... (inaudible).

The sentence constraints are constructed by sentencing guidelines, by carefully crafted guidelines. A correct calculation of sentencing guidelines encompasses a lifetime sentence. Consideration of the factors without regard justifies a life sentence for a crime that carries a life term. We need not worry about our feelings. That will take us beyond those legal sentence boundaries. That's why the law and justice intersect at a life sentence.

Kimball: Any objection to the placement made by defense counsel?

[Defense declines.]

Kimball: Mr. Mitchell you are being sentenced. You have the right to say something if you want to. You don't have to if you don't want to. With respect to leader/organizer, I think it was appropriately applied. It requires direction of underlings. The evidence shows that Mr. Mitchell did most of the planning.

I also believe the obstruction of justice should be given — another level 2 enhancement. Refer to my opinion in the competency hearing. Vulnerable victim presents an interesting set of questions. Let me just say this. The law in respect is all over the place. I believe in this case, the vulnerable victim enhancement applies because of the transportation charge and conviction. We have here a victim who wouldn't even talk to a policeman after a few months of horror. And afraid even to speak in public, disguised. He tried to obliterate her identity. ... I won't reach it on the kidnapping charge because it's not necessary. ... this is an unusually heinous and degrading set of facts and circumstances that lasted for nine months, and it's certainly even horribly unusual for this kind of crime. I'm indicating an up-level departure of five for that. A life sentence is the guideline range. If I'm wrong about that, I believe [other factors] also suggest a life sentence. ... We know the facts here, and this is a horrible crime, and a life sentence does reflect the seriousness. ... We have evidence of a pattern of sexual abuse against a young girl for a long time. ... It is the judgment of the court that the defendant, Brian David Mitchell, be placed in the custody of the Bureau of Prisons for a period of his life. ... Mr. Mitchell, you may appeal this sentence within 10 days. The court recommends that he be placed in a federal correctional facility where he can receive the appropriate help.