Brian David Mitchell is accused of kidnapping and raping Elizabeth Smart.  His trial is continuing this week in Federal Court in Salt Lake City.  Elizabeth Smart just finished three days of testimony in which she clearly laid out a pattern of criminal conduct on the part of Mitchell.  She was cross examined for only about 15 minutes.  In the cross examination, the defense did not attempt to dispute her testimony.

It is obvious that Mitchell’s defense team is backed into the corner of admitting that he is guilty of the alleged crimes.  The only defense they can raise is that he is insane.  But can the prove it?

My opinion is no.  Before I explain why, let’s back up a little bit.  Some may wonder why Mitchell is being tried in Federal Court rather than State Court.

Utah has essentially abolished the insanity defense.  The only defense that a mentally ill defendant can raise in Utah is that the defendant was so mentally ill that the defendant did not have the cognitive ability to form the level of intent necessary to commit the crime.  For example, to be convicted of kidnapping, the State must prove that a defendant intended or knowingly restrained another person against the will of a the victim.  If a defendant is so mentally ill that the defendant could not intentionally or knowingly do something, that person will be acquitted.

Clearly, Mitchell doesn’t meet that category.  Elizabeth Smart’s testimony has already proved that he could intentionally act, he knew he was restraining her and he knew she was a person.

So why isn’t Mitchell being prosecuted in State court?  Because the State court Judge found that Mitchell is not competent to proceed.  In other words, because Mitchell’s mental illness prevents Mitchell from assisting in his defense, his criminal charges are put on hold until he is able to assist in his defense.  At that point, the State trial will go forward. 

Mitchell’s attorneys tried the same defense in Federal Court but lost.   The Federal Judge ruled that Mitchell was capable (albeit unwilling) of helping in his defense and ordered that the trial go forward.

In Federal court, Mitchell could be found not guilty by reason of insanity.  To win that, his attorneys must prove that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”

Mitchell is presumed to be sane.  He must prove that he is insane.  In an effort to preempt his defense, the prosecution has been carefully laying out evidence to prove that Mitchell had the ability to understand that what he did was wrong.  Elizabeth Smart testified that Mitchell told her that if was caught, he would go to jail.  That is enough.

If the jury believes Elizabeth, and I predict they will, Mitchell will lose his insanity defense.