Wednesday, May 18, 2011

Attorneys: Kidnapper/Rapist Didn't Cause No Harm!

Brian David Mitchell (right)
Every once in awhile (frankly, everyday) I run across a news headline or story that pisses me off. 

Always leading the pack of these nauseating news items are the stories of crimes against children. With exceptions those stories do not find their way onto this blawg for a variety of reasons not the least of which is the lack of a Bad Lawyer-angle.  But the story and headline at the Salt Lake Tribune detailing the claims of defense lawyers for Brian David Mitchell, Elizabeth Smart's kidnapper and rapist, have me smoking.  According to Melinda Roberts story Mitchell's lawyers claim that Mitchell should receive a lesser prison sentence because he didn't cause Elizabeth Smart "Psychological Injur[ies.]"  The  following is an excerpt from Ms. Roberts' report:

"Elizabeth Smart has repeatedly claimed her abusers didn’t destroy her plans for a happy future — a stance that may now be used by defense attorneys seeking to lessen the pending prison sentence for Brian David Mitchell.  In court documents filed this month, defense attorneys argue that Mitchell did not cause 'extreme psychological injury' to Smart when he kidnapped the then-14-year-old girl from her bedroom at knifepoint [ . . . ], to make her [his] plural wife.

As proof, the defense points to Smart’s public comments of how she survived her horrific 9-month ordeal at the hands of Mitchell and his wife, Wanda Eileen Barzee, who threatened to kill her and her family if she didn’t comply with their wishes.

'Counsel does not agree that Extreme Psychological Injury [to the victim] is applicable in this case, since its application is directly contradicted by the testimony of Ms. Smart and argument by the government, who vigorously argued that Ms. Smart is a ‘survivor’ who has not been psychologically injured more than other victims of the offenses at issue,' wrote defense attorneys Robert Steele and Parker Douglas.

The defense comments are intended as objections to a pre-sentence report filed by a federal probation officer. The report will be considered by U.S. District Judge Dale Kimball at a May 25 sentencing hearing for the 57-year-old Mitchell, who faces up to life in prison. [. . . ]

Smart testified at a five-week trial in December that Mitchell marched her at knifepoint to a mountain campsite above her Salt Lake City home, where he consummated their "marriage," and then continued to rape her almost daily. The girl, who for a time was tethered to a tree, was forced to watch Mitchell and Barzee engage in sexual activity as a way to "educate" her. The couple also forced her to smoke marijuana and cigarettes and drink alcohol. Later, the trio traveled to California. When they returned to Utah in March 2003, the homeless street preacher and his wife were arrested, and Smart was rescued.

Smart testified that as a survival strategy, she gave up any thought of escape.

'No matter what it took, I would live,' Smart testified at trial. 'I would survive and do everything he told me to do to keep my life and my family’s life intact.'  But Smart acknowledged that she initially felt that the rape made her feel dirty and that she wanted to die — ammunition that prosecutors may use to show Mitchell’s actions did cause psychological trauma."
These sort of patently absurd and villainous assertions by counsel provide a basis for the caricature of criminal defense attorneys.  While I accept the principle that unpopular defendants deserve defense, every reasonable defense--I don't get this sort of outrageous mischaracterization of a rape victim's testimony.  I don't believe this sort of disingenuous argument does anything advantageous for the defendant and on the contrary spin like this risks provoking a sentencing judge.  Or is that the point? 

Actually there are certain classes of injuries that are so obvious that laypersons can readily understand the injury--kidnapping and regularly raping a 14 year old, is one of those.  Mitchell took Elizabeth Smart's adolescence, and her innocence and only his lawyers don't seem to understand that.  You know, I'm not angry that Mitchell's lawyers make these arguments in their objections to the Pre-Sentence Investigation, I'm angry that they leaked these arguments to the press, if they did.


  1. Maybe the AUSA or someone in that office leaked the objections?

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