This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Note: Read a transcript of Elizabeth Smart's testimony here: http://www.sltrib.com/sltrib/home/50632966-76/smart-viti-yes-award.html.csp
Note: Read the testimony of Mary Katherine Smart by clicking here: http://www.sltrib.com/sltrib/home/50632306-76/smart-cook-elizabeth-yes.html.csp
Elizabeth Smart on Monday told a packed Salt Lake City courtroom how she willed herself to survive nine months of captivity and sexual assaults at the hands of Brian David Mitchell.
Now 23, Elizabeth told jurors what her life as a 14 year old was like before Mitchell took her from her Federal Heights home on the night of June 4, 2002.
"I was interested in excelling in school," she said of herself at the time. "I loved to read, loved to horseback ride, enjoyed running, I was very dedicated to playing the harp and learning how to perform with the harp."
But that all changed, Elizabeth testified, when Mitchell used a cable to tether her in an outdoor camp where he and his wife hid her from the world. Soon, she said, he began raping her.
"He had succeeded in taking me up to his camp, he had threatened me and tethered me between two trees like an animal, and at that point I felt like it didn't matter," Elizabeth told the court. "I felt like because what he had done to me, I was marked, I wasn't clean, I wasn't pure, I wasn't worth the same...I felt like I could take the risk of being killed and try to escape."
Yet a time came when Elizabeth said she changed her mind.
"I started to think about my family, my parents, what my life had been before," she testified. "It didn't matter what happened to me, my parents would always love me, no matter what he did to me. That couldn't be changed, that I was still a person of worth...No matter what it took, I would live, I would survive. I would do everything he told me to do to keep my life and my family's life intact."
Elizabeth began her testimony just after 11 a.m. Monday and continued until court concluded for the day at 2 p.m. She will continue her testimony when court resumes Tuesday morning.
Elizabeth was the third witness to testify, following her mother, Lois, and her younger sister, Mary Katherine.
Mitchell was removed from the courtroom prior to opening statements in his trial Monday. He had entered the courtroom singing "In Memory of the Crucified," before U.S. District Court Judge Dale Kimball ordered him removed to view the proceedings remotely.
Lois Smart told the court she met Mitchell in 2001 as she was shopping in downtown Salt Lake City. Her children, she said, urged her to give the apparently down-on-his-luck Mitchell some money. Lois Smart testified she gave Mitchell her husband's name and phone number to contact about doing odd jobs at the Smart home.
"He looked like he was a clean-cut, well-kept man who needed some help to get along with his life," Lois Smart said of her impression of Mitchell.
Mitchell didn't mention religion or pay special attention to Elizabeth, she said.
"I thought he was a man down on luck. He just lost his job, looked young enough that maybe he had a family, people he was responsible for," Lois Smart said.
Lois Smart also described how Elizabeth's then 9-year-old sister, Mary Katherine, came into her bedroom on the night of June 4, 2002 to tell her Elizabeth was gone.
"She reminded me of a scared rabbit," said Lois Smart of her daughter's demeanor.
Lois Smart said the family called 911 after she saw the screen on their open kitchen window had been cut and Elizabeth was nowhere to be found.
Mary Katherine, now 18, recalled how she fell asleep with Elizabeth in the bed that they shared after Elizabeth read her the book "Ella Enchanted." She testified she woke up to her sister getting out of the bed, and saw a man in the room. The man took Elizabeth into the bathroom, and had a knife, she testified.
"I stayed in bed. I was scared. I couldn't do anything," Mary Katherine said.
When she did get up, she said, she saw two people in white and ran back to her bedroom. But she eventually woke her mother up. Mary Katherine also recounted how she later would realize it was Mitchell in the room that night.
"I was waiting for my dad to tuck me into bed and was looking at a Guiness Book of Records, and I was thinking about who it could have been and the workers who had been through my house," Mary Katherine testified.
Below, The Salt Lake Tribune is providing an accurate-as-possible transcript of what is happening in the federal courthouse in Salt Lake City. The Tribune is making every attempt at accuracy and timeliness, and will update this story as the day's proceedings continue.
WARNING: Some of the statements made in court contain graphic language.[Douglas begins his opening statements.]
Ladies and gentlemen of the jury, counsel, members of the public, I will briefly just start with introduction. [He introduces himself and fellow defense attorneys Robert Steele and Audrey James.]
Although the court graciously invited me to start where I began, the government had given you a vivid picture a close-up if you will. I will not rehash last week [and the] horrifyingly disturbing facts of this case. I know you recall what was said.
[Prosecutor] Mr. [Felice] Viti's opening statement covered a span of roughly nine months, from June 4, 2002, to March 12, 2003. I've put up some pictures, as I had before, taken over many points in Brian's life. They look familiar to all of us because this type of photo we are used to seeing or have seen before. The nature of snapshots is that they focus on certain things, but things outside the frame you cant see. I'll cover both what is in and out of the pictures as much as I can in an attempt to help you organize what you hear in the trial.
I will quickly encapsulate the facts of 50 years before June 4, 2002. Let me jump right in.
On Nov. 18, 1953, Brian David Mitchell was raised in a seemingly mainstream LDS household. Somewhere between the ages of 13 and 15 is when that began to change. One of the figures not in the picture is Franklin Henry Mitchell, Brian's father's father. Two years to Brian's birth, he was civilly committed to Utah Hospital with paranoid schizophrenia. His friends knew him as a charismatic man, but he was delusional, suffering particularly from persecutorial delusion.
The picture here of the woman with the Christmas tree is Brian's mother; she was a schoolteacher. Brian's father, who maybe took the photo, is Shirl Mitchell, who is still alive. [In reading] his 900 page manuscript, as spokesman for the infinite god or goddess, he believes he is a prophet and humanity collectively is the Christ child.
Shirl was never diagnosed, but he spent most of his life with the family philosophizing. This early period of Brian's life, from 1966 to 1970, is when first signs of mental illness begin to manifest. At some point during his early teens, he began identifying with his father and his father's beliefs, and began breaking away from his LDS beliefs.
During this same time during the ages of 13 to 16, Brian's behavior becomes dramatic, notably changed in character and intensity. He becomes cruel and sadistic in his treatment of his mother and siblings. He adopts a strict fruit diet like his father and accuses his mother of poisoning him if she served anything other than fruit. He follows his mother around their home, often calling her a bitch and a whore. And I apologize for using those words, but those were the words. And you will hear many of those words during this proceeding.
When he's threatened or is threatening others he says very shocking things, such as "I'm going to screw your eyeballs out." His life here is marked by an intense if idiosyncratic set of beliefs and intense reactions to other people. Please take particular note of the evidence you hear on this. This is a pattern with Brian: A search for deep connection. A belief that he has found something that gives him a certainty or a meaning in life. And then a quick reaction happens then after. Oftentimes it is bewildering to people who see it. This period I'm talking about culminates in a single instance of sexually acting out when he exposes himself to an 8-year-old girl and is referred to mental health counseling.
In 1970, when Brian is 17, his probation officer commented that Brian may have more than just a character disorder. It is recommend he be committed to the state hospital youth program. Instead, Brian saw a therapist about four times and treatment was discontinued. This therapist suspects early signs of psychosis. By this time, Brian has dropped out of high school.
We're now in 1971 to 73. ... During that period, Brian takes himself to the hospital due to a reaction of taking LSD. He is living a stereotypical counter-culture life. By 1973, her marries his first wife, Karen Mitchell. The couple has tow children, Travis and Angela. In 1976, he divorces Karen and is granted custody of the children. When Karen files for custody, Brian leaves Utah with the children, whom he loves.
... During this period, Brian traveled around the country with his children. He also intensified his search for connection with the divinity and tried to deepen his relationship with some sort of god. He lived in a Hari Krishna commune in West Virginia. He moved when there was pressure to convert. This is part of pattern we see, where Brian Mitchell is searching for a deep connection ... and then makes a quick action or reaction when those beliefs are challenged.
During this time, the family lived in several places. In New York City and finally on a farm in New Hampshire where they lived for there years, he sampled various religions Protestantism, Christian Science and Buddhism. In 1979, at age 27, Brian moves back to Utah and has an intense conversion experience that brings him back to the LDS Church. The children continue to live with Brian. In 1983, Karen gives up her parental rights to the kids.
In 1981, Brian is converted within one week of his intense religious experience and marries Debbie Mitchell within a year. Debbie tells Brian that god told her he was destined to marry her. She claims to have visions, and by this time Brian begins taking direction directly from god, through Debbie.
... Brian and Debbie have two children together, Joey and Sarah. By 1983, according to Brian's family, Debbie believed that Brian's children from his first marriage, Travis and Angela, were undermining his new marriage. And Debbie insisted Brian give them up for adoption. Brian at this time believes his marriage is divinely sanctioned. He loves his children, but he almost believes he must act accordingly. He allows his children to be adopted. He acts rashly, giving up his children in what he believes to be a command from the lord.
Here we see the pattern again, and please pay particular attention to the evidence you hear about from this time.
His marriage to Debbie is traumatic and abusive, it does not last. He is deeply religious and trying to be a good member of the LDS church. In 1985, he divorces Debbie and marries Wanda Barzee the same day his divorce decree is final. They had met before he divorced, in an LDS marriage support group for those in abusive relationships who are going through a divorce. And they were in abusive relationships, both abusing and being abused.
They remarry in the temple in 1988, and are encouraged for a time, seem to have a happy marriage, are interested in living pious lives. But as we see with pictures, the surface has many things beneath it.
Brian at around this time is a ward clerk, and I believe that would be the center picture, the upper left side in the back row. He's a ward clerk; Wanda is an organist, an accomplished organist, playing Bach and other pieces at a high level. But their beliefs are so intense they have trouble with children and one another because of the intensity of their beliefs.
They become very religious and church-involved he was a counselor, served on the stake's high council and was a temple worker. It also appears his beliefs become more extreme, move more toward a fundamentalist LDS belief.
He was also working for O.C. Tanner. The picture just before the last on your left is from that time. He starts in the mailing department in 1985-87 and he was a die cutter, a fine-metal worker, until about 1994 when stopped working. According to a coworker at O.C. Tanner, he begins expressing more and more extremist view, gets argumentative about his beliefs. He becomes extremely vocal, alienates himself with other workers, says the LDS Church is hypocritical. He went from janitor to jeweler, is good with his hands. He is fairly functional, but has trouble with workers with his intensity. He singles out workers.
When confronted with these things, he starts singing to drown out coworkers. In short, he shows he is bright, accomplished, dedicated, yet troubled and acting out frequently. We see that pattern again.
By 1992, the family states that Brian and Wanda's behavior became incredibly intrusive and challenging to others. They tell everyone they want to be more like Jesus, become perfectly righteous. In 1993, Brian leaves O.C. Tanner, quits attending church and quits his temple jobs because he believes he is receiving a higher and purer calling 10 years before the event that we heard about from Mr. Viti.
In 1994, he works for man names David Beard, making decorative metal objects. By 1995, he also has a job with Samuel West, and lives with the West family in Orem. He had a business with a spiritual and healing method known as lymphology. Let me explain: One is healed by touching, working with lymph nodes and other forms of physical stimulation of lymph system to cure ailments. He was known as the best salesman and talks with Dr. West about taking over the business. At this time he asked they be known as David and Alotta Shirlson, undoubtedly after Brian's father. ... Brian sees his true calling coming. He continues to practice lymphology, and his idiosyncratic religious beliefs.
He believes Dr. West has special healing powers, and Brian believes he should go and heal people around the country. While this picture is complete in many ways, it will be obviously augmented by evidence you hear. He begins speaking about a conspiracy theory with the American Medical Association because the practice of lymphology might conflict with the medical establishment. When West questions him about his religious beliefs, Brian leaves again. You see the pattern again: the search for deep connection, giving him a meaning and certainty in life, and challenged when confronted.
Brian and Wanda decide to leave the world. Mitchell and Barzee sell all their possessions, at first live in a trailer then stop and stop using their Social Security Numbers. You'll recall his problems with the AMA he does not like government and institutions. The couple engages in what Wanda calls a journey through the land. She gives organ recitals, several organ recitals, some on East Coast, one of which on the East Coast is attended by few or no people, but that "the Heavenly Host attended in great numbers." She is playing beautiful pieces to no one except to what the couple believes is the Heavenly Host.
It is also during this time they travel to Alaska and Hawaii. You'll hear their Hawaii trip is interesting for several reasons. They are only able to buy a one-way ticket. They decide they will trust in the lord to provide them with a return ticket, and they go believing it is a challenge of their faith.
We're now in 1996, six years before the events of 2002-03. Here they built their first handcart and on their travels, which are wide-ranging to say the least and which you will see, they pull the handcart across, among other things, the Golden Gate Bridge. By 1997, the two start dressing in the robes that you see in the last picture, much like the ones in the last picture, that are made by Wanda. This is approximately five years before Brian meets the Smarts.
In 1998, they build a covered wagon. They have a handcart, and a hand wagon, and a third vehicle: The hand house. The hand wagon, which you will see in evidence at least pictorially, they view as a kind of Ark of the Covenant, and they pull it from Idaho to Utah. In 1999, they build the hand house. This is almost as large as a pop-up trailer. They pull it for one day. It is very heavy ... they're going down a hill by St. Mark's Hospital for those of you who know LDS geography ... and Wanda is run over.
Although the hospital is nearby, Brian attempts to heal here with lymphology. Soon after, they take on the names Hephzibah, meaning my life is in me, and Emannuel ... meaning god is with us.
Pay close attention to the religiosity expressed that almost singularly focuses the way of life. ... It brings us to around the year 2000. Now it is not clear when exactly Brian Mitchell believes he starts receiving revelation. By some accounts that you will hear it is as early as 18. But they are unclear at times he believes them ... some at the early ages were false revelations. But by the year 2000 he is regularly claiming revelations. And this is when it was revealed to him to restore the law of celestial marriage plural marriage by taking additional wives. ... Taking additional wives is meant to produce the coming of a new Zion. ... It is at this time that it is revealed that he shall take seven wives and then seven times seven wives 49. And Wanda shall be the eldest sister wife and the mother of the new Zion. This is a year and a half before he meets the Smarts.
Shortly after this revelation, Brian marries a woman named Kelly who is seven months pregnant. This marriage is very short-lived.
In 2001, Brian approaches a woman in a mall named Julie Atkinson about becoming a wife. When this is rejected, he receives a revelation that he must take younger wives.
In 2002, Brian has his theological system recorded ... in the Book of Emannuel David Isaiah. Though long, it is not as long as his father's 900-page tome. Upon completing his book, he takes it to the Wests and to his family. He takes it immediately to those he wants to convince and he confronts them aggressively.
The Wests recall Brian yelling about hellfire and damnation from the sidewalk before Wanda pulls him away. When his mother doesn't show proper interest in the book, he frightens her to the degree she obtains a restraining order against him.
This brings us to June 4, 2002. On that day, Brian Mitchell is at a camp in the hills above Salt Lake and the hills above the Smarts' house a camp where he and Wanda had lived for a time before he met the Smarts.
Brian is feeling anxiety and doubting and fear that he is rebelling against the commandments he received from god. His spouse gave him strength and assurance that his revelation was true. She revealed that if the lord did not open a way for him to take Elizabeth Smart, then he didn't have to do it.
It was with this consideration regarding the fear of the crazy decree from the divine, if Elizabeth Smart was to be his wife the way would be opened and if not it would not be opened. Between 11 p.m. and 12 a.m. that he made his way down to the Smart's home.
Your job of reaching a just verdict is a difficult task, not only because of the nature of the allegations, the evidence you'll hear, but also because we're asking you to determine what was in someone's mind, made difficult because of insanity. The seemingly inexplicable is often present, by its nature insanity does not follow logic, but it does follow a pattern. Search-and-find technology, inflexible uncertainty in life and a quick reaction when that is challenged. A crazy adherence to divine command carries signs of cunning, evidence of certain intelligence, but also contradictions and true madness. The crazy person who comes in the middle of the night is exactly who we were told as children. The crazy person is horrifying, unpredictable and insane.
We have little or no disagreement of what happened as relayed by Mr. Viti. None of the evidence is gratuitously represented. We have general disagreement about why it happened. Your task is not only to determine what, by why it happened. Why it happened is tied up with a tough question: What was Brian Mitchell's state of mind when it was happening? To deliver justice, you must ferret out carefully no only what happened but why it happened. You have one of the toughest but most sacred duties. We trust you can do it.
Judge: [Assistant U.S. Attorney] Ms. [Diana] Hagen you may call first witness.
Hagen: Can we take down the exhibits please?
Judge: Take the pictures down please.
Hagen: We'd like to move for admission of many of the exhibits at this time, exhibit 1-9, 1a, 3a, 5a, 19a, 20-42, including 31 abcd, 37a and 39a, 43-64, 66, 68 and 69. The only exhibits that we provided and are not admitting are 65 and 67.
The government would call Mrs. Lois Smart.
Smart: Lois Smart. l-o-i-s s-m-a-r-t.
Hagen: Are you related to Elizabeth Smart?
Smart: I am her mother.
Hagen: Are you married?
Smart: I am.
Hagen: How long?
Smart: 25 years.
Hagen: Before you were married, what was your occupation?
Smart: I was a schoolteacher, an art specialist.
Hagen: And what do you do now?
Smart: I'ma homemaker.
Hagen: And how many children do you have?
Hagen: Please tell us their names.
Smart: Charles, 24. Elizabeth, 23. Andrew, 20. Mary Katherine, 18. Edward Jr., 16. William, 11.
Hagen: Does your family belong to a particular church?
Smart: We are members of The Church of Jesus Christ of Latter-day Saints.
Hagen: Are you active in your church.
Hagen: Could you describe generally where your home is?
Smart: In the upper Avenues.
Hagen: And is that where you lived in 2002.
Hagen: How close is your home to the foothills of Salt Lake City?
Smart: Minutes away.
Hagen: Turning to 2002. How old was Elizabeth?
Hagen: How did she spend her time?
Smart: She was an excellent student. She wanted to excel in her academics. She spent a great deal of time reading. She spent time at our cabin snowmobiling or skiing. And her grandmother owned horses and she liked to ride them.
Hagen: Was she involved in activities at school?
Smart: She was in a history class. She was involved in a history fair. One project that she worked on was doing a history of Betsy Ross and dressing up and presenting that to her class. And another project about early Mormon pioneers. She won the school award and went on to region and state.
Hagen: School took a lot of her time then?
Smart: It did. She also played the harp. Sometimes she would have two lessons a week.
Hagen: Was she involved with boys at this age?
Smart: Not at all. It's not that she couldn't talk to boys. She could talk to them, but she didn't have her own cell phone or computer. She wasn't talking to them that way.
Hagen: I assume she wasn't dating.
Smart: She was not.
Hagen: How would you describe her personality?
Smart: She was fun to be with. She was serious at times. ... I think on first glance you would think she's maybe a little bit shy and reserved.
Hagen: Was she a pretty mature or worldly 14-year-old?
Smart: I wouldn't say that.
Hagen: Did there come a time in the fall of 2001 when you met a man by the name of Emmanuel?
Smart: I didn't know he was going by Emmanuel then. I don't know that his name was discussed.
Hagen: Did you meet a man then?
Hagen: Where were you at the time?
Smart: We were doing school shopping at the downtown mall with my children, at ZCMI Mall and then at Crossroads Mall.
Hagen: That's the downtown mall that used to be in Salt Lake City?
Smart: Yes, it is.
Hagen: How did you come to speak with Emmanuel?
Smart: My two boys wanted to go to Crossroads to look at gym shoes; my girls wanted to look at clothing. I sent the boys ahead. They were older so could go by themselves. The boys came back with me to ZCMI Mall. My boy said he needed some money, why don't you give someone help?
Hagen: Was Elizabeth with you?
Smart: Yes, all six children.
Hagen: What did he look like?
Smart: I was going between the different malls to check out the shoes of my boys, he was standing there. My children told me to give him some money. I was taken aback. Normally my children don't say to give money to someone else [small laugh]. We were waiting for the light to change. He looked like he was a clean-cut, well-kept man who needed some help to get along with his life.
Hagen: What was he wearing?
Smart: I don't remember exactly. I made a mental note he looked clean.
Hagen: How was his hair cut?
Smart: Very short.
Hagen: Was he clean shaven or did he have a beard?
Smart: Clean shaven.
Hagen: Does that look like the man you met? [Shows her a photo.]
Hagen: Let the record reflect exhibit 64, the witness has ID'd the defendant Brian David Mitchell. What were your impressions?
Smart: I thought he was a man down on luck. He just lost job, looked young enough that maybe he had a family, people he was responsible for.
Hagen: Did you give him money?
Smart: Yes, $5, he needed a little extra help because he was down on his luck. I know we had a leak in the roof, and I was thinking to myself, I was thinking we could use some help with that, and I asked him if he knew how to do something like that.
Hagen: His response?
Smart: Yes, I do manual labor.
Hagen: Did you give him your contact info?
Smart: Yes, with 6 children it isn't hard to find a pencil and paper in my purse. He had a tan backpack, light colored. He was not homeless, just down on his luck. I wrote down my husband's name and telephone number.
Hagen: Was he preaching?
Hagen: Did he mention religion?
Smart: He did not mention religion at all, no.
Hagen: Did he show any special interest in Elizabeth?
Smart: No, he did not show any special interest in anyone.
Hagen: Would you had suggested he come to work at your home if he had shown any special interest?
Smart: Absolutely not, that would have been the furthest thing from my mind.
Hagen: When did he come to work at home?
Smart: I can't give an exact date. The leaves were falling. It was a challenge to get the leaves raked up. I asked if he was finished if he would help my husband rake leaves. 2001?
Hagen: Did he do any other work?
Smart: As well as the roof? I don't remember him doing any other work. I remember having a conversation with him hoping that he might do a little more work. There was an olive tree where the children played. It was growing bigger. I asked him, "Have you ever dealt with trees, it's taking over the yard?"
And he mentioned to me, he said, "Well if you cut the tree down and you bore a hole in the trunk and then pack it with salt that should kill it."
Hagen: At that time you were willing to have him come do additional work at your house?
Smart: I think we owed him ten more dollars. We had larger bills and it was like, "No problem, I'll come back tomorrow and help you."
Hagen: Did he seem like a capable worker?
Smart: I wasn't really watching him, but he seemed fine.
Hagen: I'm showing you a photograph now. What is that a picture of?
Smart: That is a picture of the back of our home.
Hagen: And how it looked in 2002?
Hagen: Can you point out to the jury where he was working on the roof?
Smart: On these two skylights. It was leaking around the edge. So they had to pull the shingles off.
Hagen: And what is directly below that skylight?
Smart: You would look down on a landing that separated all the bedrooms. On the right side is the master and on the left side are all the childrens' rooms.
Hagen: What is this a picture of?
Smart: A picture of the landing.
Hagen: Can you tell us where the childrens' bedrooms are?
Smart: Yes. There are two steps and you would go up those and they're all on that side.
Hagen: And where was Elizabeth's bedroom?
Smart: Right where that person is standing. If you continue on you would enter into her room.
Hagen: Can you tell us what this diagram shows?
Smart: Its a floorplan of our second level.
Hagen: Is it a generally accurate diagram?
Hagen: Can you show us on that diagram where Elizabeth's room is?
Smart: Yes. Those are the steps I mentioned. You just walk right down here.
Hagen: When the defendant arrived at your home, did he go to the front door?
Smart: Yes, he did.
Hagen: I'd like to show you another exhibit. What is that a diagram of?
Smart: That is a floor plan of our main level.
Hagen: In general, is that an accurate description of that level?
Hagen: Do you have an alarm system on your home?
Smart: We do.
Hagen: Was it in place in 2001?
Smart: It was in place and it did work, but we didn't set it every night.
Hagen: Did the alarm system do anything when the front door was opened?
Smart: When you opened any door in the house it would beep. Not just one beep, but [mimic's the alarm's sound]. That happened regardless.
Hagen: Can you show the jury where the beeping sound comes from?
Smart: The main panel is just right here. That little box right there.
Hagen: Is there any other place in your home where the beeping sounds?
Smart: In the master bedroom.
Hagen: In order to work on the skylight, did the defendant have to go into the back yard?
Smart: Yes, he did.
Hagen: Can you show how he crossed through your home?
Smart: I think normally we would have had him go around. But I believe my husband was in the house at the time. He came to the door and said, let's just go out this back door. ...
Hagen: Through the kitchen door then?
Smart: Kitchen door.
Hagen: You mention you spoke with the defendant while he was working about the tree. How did that interaction occur?
Smart: I think ... how I remember it was the children had come home from school and he was outside raking and I ... you know it was just like, having six children, you have to kind of run a tight ship. You have to know where they're at all the time. ... I remember thinking I have to get out there and bring the children back in. They have to work on school work. So I went outside, and that's when I saw him raking and talked to him. Becuase there was that olive tree.
Hagen: Did you take him anything?
Smart: No. But at lunch time, I would have fixed a sandwich for my husband, so i fixed him one as well.
Hagen: When you were talking to him did you ask him his name?
Smart: Yes. He said it was Emmanuel.
Hagen: Did he tell you anything about himself?
Smart: I may have asked him, "Where you from."
Hagen: That was certainly an unusual name.
Smart: He said he had been down south preaching the word of god.
Hagen: Was that story convincing to you?
Smart: Not really.
Hagen: Did he ever mention he was the prophet?
Hagen: Or the Davidic king?
Hagen: Or the one mighty and strong?
Hagen: Or the one who would fight and kill the antichrist?
Smart: No, he never said a word about that.
Hagen: Was he preaching or trying to recruit you into his religion?
Smart: He was not preaching and never tried recruiting me.
Hagen: Did he mention the LDS church?
Hagen: Was that bizarre to you?
Smart: Not at all.
Hagen: Did he seem in distress?
Hagen: Was he acting normally or preaching Biblical speeches?
Hagen: Did he do or say anything that would make you believe he was mentally ill?
Smart: He did nothing to make me believe he was mentally ill.
Hagen: June 4, 2002, was a school day for Elizabeth?
Smart: She wanted to go running in the gym for a few days before. She would be attending high school and a coach came to watch them run, she and another girl were the fastest runners. She was quite happy about that, thinking about being on the track team. To keep up her speed and running abilities, she wanted to go running.
Hagen: Was anything planned?
Smart: It was also her 8th grade graduation awards ceremony at school. We were all anxious to see what kinds of awards she would win.
Hagen: Did she have any particular role?
Smart: She did, but not until that day. They asked her to play some opening music at the assembly, maybe 5 minutes long.
Hagen: Did her and her sister go running?
Smart: Yes, they did.
Hagen: What did you do?
Smart: I was thinking in my mind to play five minutes we had to carry a huge harp down all these stairs. I was not excited about that. I was preparing dinner. My father had just passed away, and we wanted to regroup and be a family together and have family dinner together.
Hagen: Did anything unintended happen to dinner?
Smart: I'm sorry to say it did. I burned the potatoes. We don't have a fan, so smoke just permeates the room. So I went to open the window.
Hagen: You opened the window to right of the kitchen sink?
Hagen: Was the screen intact?
Smart: Yes, the screen was intact.
Hagen: Did you have time to eat and play the harp?
Smart: We didn't have nice sit-down dinner. We had to be there at school, had to
move the harp outside. We were late and never ended up playing the harp.
Hagen: But you did go?
Hagen: Did she recieve and award?
Smart: Yes, she did.
Hagen: That's government exhibit four.
Smart: That was Elizabeth receiving her award. I put it in a manila folder, and paper awards for good attendance, excellence in academics and physical education.
Hagen: How can you tell that was that night?
Smart: I can see the principal behind her, Mrs. Francis Battle.
Hagen: Is that how she looked on June 4, 2002?
Smart: Yes, it is.
Hagen: When she returned home, did she prepare for bed?
Smart: Yes, she did.
Hagen: Was she wearing pajamas?
Hagen: What kind?
Smart: Red, silky pajamas.
Hagen: Your honor, may I approach the witness?
Jugde: You may.
Hagen: I've handed you what's been admitted as government exhbit 5. You're welcome to take out and look at them. [She does.] Do you recognize those?
Smart: They are my pajamas.
Hagen: They are similar to yours?
Hagen: How did you have identical pajamas?
Smart: We had a friend who went to Vietnam, and she brought us back all pajamas or robes.
Hagen: Did you gather together as a family that night?
Hagen: What do you do as a family before go to bed? At what time was prayers that night?
Smart: We had the awards ceremony that night. I also had a 2-year-old at that time and was anxious to get him to bed. 9 o'clock, close to that time.
Hagen: What did you do after prayer?
Smart: Brush teeth and do reading or homework.
Hagen: Did Elizabeth go to her room?
Hagen: After family prayer was that last time you saw Elizabeth that night?
Hagen: Were you awoken?
Smart: I was.
Hagen: Who woke you up?
Smart: Mary Katherine, who was 9-years-old.
Hagen: Was there anything odd about her appearance?
Smart: She reminded me of a scared rabbit.
Hagen: What did she say?
Smart: Elizabeth is gone.
Hagen: What was your first reaction to her statement?
Smart: I thought, well, they both slept in the same room. Maybe Mary Katherine kicked her one too many times or maybe she had taken all the blankets and Elizabeth just wanted to sleep somewhere else.
Hagen: Was your husband awake?
Smart: He was.
Hagen: What did he do?
Smart: He jumped out of bed and went to look. He looked in my son's bedroom. William was the baby at the time. There was a bed in his room but he slept in a crib. ... He also went downstairs to the family room. We had some sofas the children liked to sleep on.
Hagen: Did you stay with Mary Katherine?
Hagen: Did she still have the blanket clutched?
Smart: Yes, and she still looked like a scared rabbit. ... She said a man had taken Elizabeth with a gun and that we wouldn't find her.
Hagen: Did she tell you if the man said anything?
Smart: Yes, that he took her for ransom or hostage.
Hagen: Did your husband tell you if he was able to find Elizabeth?
Smart: He said he could not find her.
Hagen: What did you do?
Smart: I jumped up and ran downstairs. It was dark outside. I turned the lights on. There's a panel of five or six light switches in a row. I remember I just smacked them with my hand. I looked over by the window and saw it was open and the screen had been cut.
Hagen: I'd like to show you a photograph ... do you recognize it?
Smart: Yes. That's the window and the screen that had been cut.
Hagen: If we could have just a moment your honor. We'd like to show the witness some physical exhibits. May the special agent approach the witness?
Hagen: Mrs. Smart, Agent Larole is showing you ... what's been marked and admitted as government exhibit 9. Can you ID that?
Smart: That's our kitchen window.
Hagen: Is that the same window in exhibit 8?
Smart: It is.
Hagen: Can you explain how that window opens?
Smart: There is a crank that it is not to the window itself but to the casing outside the window. ... You crank it around and it opens like that. It just opens halfway. It doesn't all the way swing open.
Hagen: I'd like to show you now exhibit No. 11. Can you ID that?
Smart: Yes. That is our kitchen screen.
Hagen: Is that how you found it when you awakened in the middle of the night?
Hagen: Can you describe what condition it's in?
Smart: As I viewed it that night it was cut in a U shape.
Hagen: Does it still appear to be cut in that shape?
Smart: Yes, it does.
Hagen: Thank you. When you flipped on your lights and saw that ... what was your reaction?
Smart: My heart sank, and I yelled out to Ed, "Call 911, she's gone."
Hagen: Can you describe what you were feeling?
Smart: It was utter terror. It was the worst feeling knowing that I didn't know where my child was. It was ... I was helpless.
Hagen: How do you feel now eight years later, describing this story to the jury?
Smart: I feel it was a terrible thing that happened and I would never want to go through it again. But I also think I know the ending and I see my daughter now. So maybe I'm not as emotional as you think I would be or should be because I know then ending.
Hagen: I'd like to show you an exhibit. What is that a picture of?
Smart: That's our kitchen. Elizabeth was missing and people had sent flowers and things letting us know they were thinking of us.
Hagen: Is that the same window we saw earlier?
Smart: It is.
Hagen: On the right side there's a door. Can you point out the door to the jury?
Smart: Right there.
Hagen: Where does that door lead?
Smart: It leads out to ... I call it the kitchen garden. Our lot shape is unusual. It's a pie shape. It's a narrow stirp there that leads up to the back yard.
Hagen: Is that same door the defendant would have gone through to the back yard.
Hagen: Before Mary Katherine woke you up, did you hear beeping?
Hagen: Was the alarm system functioning that night?
Smart: The alarm system always worked, but we had not set the alarm system. But the doors always beeped.
Hagen: And you tested that the alarm beeped in your bedroom. If the beeping had sounded in that night, would that have awakened you?
Smart: Yes, it would.
Hagen: After you found your daughter missing, did you discover anything about the kitchen door relative to alarm system?
Hagen: After looking to see the screen was cut, you saw that the back door had been unlocked?
Hagen: It had been locked when you went to bed?
Hagen: Is there an alarm system for the door?
Smart: Yes, but unbeknownst to us, the magnets had been kind of moved, maybe through wear and tear, had been jostled out of place and that door no longer beeped.
Hagen: Is the kitchen door the closest outside door?
Smart: No, probably the furthest.
Hagen: I'm showing government exhibit 7 again. What doors would he have to pass to go to kitchen door?
Smart: Leaving the room, the sliding door right here, the front entryway and then the front door. He had to have gone down those stairs to the kitchen and out the back door.
Hagen: If that sliding landing door had been opened, would it have beeped?
Hagen: Front doors, beeped?
Hagen: Photo exhibit 14. What is that a picture of?
Smart: A picture of the back door.
Hagen: Is that same door from inside the kitchen?
Smart: Yes, it is.
Hagen: After you found the screen cut in the window, did you call 911?
Hagen: Did police respond?
Smart: Yes, they did.
Hagen: Anyone else?
Smart: Yes, our neighbors. That's a picture of me and my neighbors giving me a hug.
Hagen: Do you see yourself?
Smart: Yes, in red pajamas.
Hagen: About how long is this after you found Elizabeth missing?
Smart: 10-15 minutes.
Hagen: When was the next time you saw your daughter?
Smart: 9 months later.
Judge: You may cross examine, Ms. Lewis.
Defense attorney Wendy Lewis: I have a few questions for you. You said it was the fall and you were shopping downtown. Do you recall more specifically the month it was?
Smart: I can't, but I knew we were doing some school shopping, before the snow was falling.
Smart: I'm thinking of September.
Lewis: You said your sons had seen a man who had needed some money, who looks like a guy who needs some help. You said first ran into him in the crosswalk?
Lewis: You were at ZCMI and said you were walking across to Crossroads, from one side to the other.
Smart: On the ZCMI side.
Lewis: You weren't looking for him, and they said, "That's the man"?
Lewis: All six were with you?
Lewis: You said you gave him a few dollars and asked him if he was capable of doing manual labor.
Smart: I asked him if he needed some work.
Lewis: Did he ask any personal questions?
Smart: Yes, I had 6 children and a baby that was all I could handle.
Lewis: You didn't have any religious discussion with him there in the middle of the street?
Lewis: How many days later until he came over?
Smart: I don't know how many. It might have been, I think it was very soon that he called. The next day he called and talked to my husband, so a few days after meeting him.
Lewis: It was a weekday, is that correct?
Smart: As far as I can recollect.
Lewis: The reason I ask is that you said the children were at school.
Smart: Yes, it was a weekday.
Lewis: It was morning. Was your husband home?
Lewis: And you interacted with him?
Smart: I answered the front door, then my husband came down to speak with him.
Lewis: And then he went through the house and went into the back yard. Is that right?
Lewis: Did you have any discussion with him at that time?
Lewis: OK. So the next time you had a discussion with him was when you brought him lunch?
Lewis: OK. That's when you asked him what his name was?
Smart: I don't believe so. I think it was later on when I was asking him about the olive tree. ... When you say I took him lunch, I don't believe I had a conversation with him.
Lewis: And later on you asked him specifically if he wanted to do more work on the tree?
Smart: And raking leaves.
Lewis: Did your children come home while he was still in the back yard working?
Smart: Yes, they did.
Lewis: Do you know if any of your children spoke with Brian Mitchell?
Smart: I don't know if they spoke with him directly. They were probably there when I spoke with him.
Lewis: Was Elizabeth home at that time?
Lewis: Now when you did talk to him and asked him his name he told you it was Emmanuel, correct?
Lewis: And you asked where he was from?
Lewis: And he said he was traveling preacher?
Lewis: Now he's the one that brought up the religious aspect of this conversation and not you, correct?
Smart: I think I asked him what he did. He was responding to my question.
Lewis: That he was preaching?
Smart: I don't know if he used those words, but he was going around spreading the word of god.
Lewis: But you understood what he meant by that?
Smart: Not necessarily. I had a vague idea. That he was going around preaching about Christ. I don't know.
Lewis: That's fine. You said you didn't necessarily believe him.
Smart: Believe him in what?
Lewis: You made a comment that you didn't believe him.
Smart: I guess we'd have to go back. I'm not sure I know what that's referring to.
Lewis: On direct testimony you said ...
Smart: Did I believe his name was Emmanuel? No.
Lewis: Did you believe he was traveling around spreading the word of god?
Smart: He may or may not have been. It didn't make a difference.
Lewis: When he told you that was, what he was doing what, was his manner?
Smart: Very specific and to the point.
Lewis: Did it seem like a sincere answer?
Lewis: And you didn't ask him any further questions about his religious beliefs?
Smart: It's kind of hard to engage with someone when they don't give you answers. ... There were a few words he said and that was enough.
Lewis: You didn't challenge him on what he told you he did? You just accepted it and walked away.
Smart: Why would I?
Lewis: I understand. I just wanted to make it clear. You said you asked him to come back. Did he return any other day?
Smart: No, he did not.
Lewis: Even though you owed him a little bit of money?
Lewis: Did you ever see Brian Mitchell any other time between the time he worked at your home and the night of June 4, 2002?
Lewis: One moment.
Lewis: I don't have anything further.
Judge: Thank you, Ms. Lewis. Any redirect?
Hagen: Mrs. Smart, at the time you met the defendant, do you remember if that was aftet Sept. 11, 2001? After the terrorist attacks?
Smart: I do not recall.
Hagen: Do you think it was in later September or October?
Smart: Yes. I'm thinking it was the end of September, first of October.
Hagen: And how close was Elizabeth to you when you were talking to the defendant?
Smart: We were all at the crosswalk waiting for the light to change. I had a stroller. I'm sure they were standing right next to that.
Hagen: Thank you very much. No more questions.
Judge: Any other questions, Ms. Lewis?
Lewis: No, your honor.
Judge: We'll take our first break now. We'll be in recess for about 20 minutes.