13 Nov 2010

Smart abductor may have fooled experts, but not the lay witnesses in his competency trial

The Salt Lake Tribune - December 7, 2009

New twist to Mitchell's federal competency hearing: Non-experts testify

Courts » Lay witnesses describe a man who is cunning, not crazy.

by Stephen Hunt | Salt Lake Tribune

Four years ago, a state court judge hearing testimony from a string of psychologists and psychiatrists declared Elizabeth Smart's alleged kidnapper incompetent, rejecting the notion he is just a religious extremist pretending to be crazy to avoid prison.

But federal prosecutors making their own case against Brian David Mitchell this week continued a dramatic departure from previous strategy and traditional competency hearings by calling some 20 lay witnesses.

The parade of court transportation officers, state hospital staffers, former neighbors and relatives have recounted their observations of Mitchell during his most unguarded moments.

Painting him as cunning and controlling, they have revealed that Mitchell mostly reserves his bizarre singing behavior for courtroom appearances. They have also testified about Mitchell's life-long pre-occupation with young girls, bolstering the notion that Mitchell is a calculating pedophile who uses religion to satisfy his carnal needs.

The tactic has added momentum to prosecutors' claims that Mitchell is mentally competent to stand trial on kidnapping and sexual assault charges. David Yocom, who was the Salt Lake County District Attorney during the 2005 effort to declare Mitchell competent in state court, said the new approach may prove successful.

"I don't think we ever considered it," Yocom said of introducing lay witnesses during the state court hearings.

Yocom said competency issues are usually "medical as well as legal," and therefore well within the bailiwick of forensic psychiatrists and psychologists.

"We've handled those competency things for years and years by working directly with the experts who examined the subject," Yocom said. "I don't recall ever using [lay witnesses] in my 30 years [in the criminal justice system]."

In 2005, state prosecutors relied solely on the testimony of psychiatrists and psychologists -- most of whom based their often complicated diagnoses and opinions on second-hand reports of Mitchell's behavior. Over the years, Mitchell has agreed to speak with only one evaluator, defense expert Jennifer Skeem, who spent 21 hours with Mitchell.

Six days of testimony in state court ended with 3rd District Judge Judith Atherton -- who partly relied on her own observations of Mitchell's hymn-singing and shouted fire-and-brimstone warnings -- finding Mitchell was incompetent to stand trial.

This time, Smart herself has taken part in the hearing. In testimony delivered two months ago said Mitchell was obsessed with sex and added he raped her three to four times a day during her nine months of captivity.

"He used religion to get what he wanted," Smart testified.

Brett Tolman, U.S. Attorney for Utah, said his office decided to call Smart and a litany of other lay witnesses as part of the federal case as a result of Mitchell's refusal to cooperate with experts.

"This is an individual who won't participate in formal psychological testing," Tolman said last week. "It seemed to us it was important to get the testimony of those who spent the most time with him."

Tolman said the idea sprang from the evolution of the case and work already done by state prosecutors, who are part of Tolman's team.

Daniel Medwed, an associate professor at the University of Utah's law school, said the use of lay witnesses is a creative, but not unprecedented concept that "makes sense in the pursuit of the truth."

"It's about competency, it's not about what happened during the crime, or if he was insane at the time of the crime," Medwed said. "All that matters is if the person has the wherewithal to understand what's going on and can help in his defense."

One famous competency case where lay witnesses made a difference was that of New York mob boss Vincent "The Chin" Gigante, dubbed "The Oddfather" because he wandered the streets of Greenwich Village in a bathrobe and slippers, mumbling to himself.

In 1997, Gigante was tried and convicted of racketeering charges after fellow mobsters testified he was acting insane to avoid prosecution while running the Genovese crime family during the 1980s and 1990s, according to news reports.

Gigante maintained the act until 2003, when he admitted in federal court, as part of a plea deal, that he had pretended to be deranged.

Mitchell's defense attorneys in the federal case before U.S. District Judge Dale Kimball had objected to lay witnesses, arguing they should not be allowed to give opinions about Mitchell's state of mind.

Prosecutors countered that hospital workers, former neighbors and relatives who had seen Mitchell in everyday situations would establish that his mental health has not significantly changed throughout his life and that he is not pre-occupied with religion.

During the 2005 hearing in state court, defense expert Skeem testified Mitchell's religious delusions drive him to distraction and that he sings because it "soothes" him. Skeem said Mitchell suffers from a disorder that causes him to believe he is "at the center" of an ongoing battle between the forces of light and darkness.

Mitchell believes he will be "sacrificed as a modern Messiah ... he will be crucified by this trial," Skeem said in 2005.

"He believes his divine role is to experience a good deal of suffering and anguish," Skeem said "It's a role that terrifies him. Mr. Mitchell is off the charts when it comes to stress."

Testifying for the prosecution in 2005, forensic psychiatrist Noel Gardner called Mitchell a religious fanatic whose ideas are consistent with thousands of Mormon fundamentalists who embrace early tenets of the LDS Church, including polygamy and a belief they are living during the last days of man's existence on Earth.

Skeem is expected to testify in the federal case this week. Last week, Gardner reiterated his views for Judge Kimball.

"My conclusions have not changed at all," he testified.

About the case

Arrest » Brian David Mitchell, 56, and his wife, Wanda Eileen Barzee, 64, are accused of kidnapping then-14-year-old Elizabeth Smart on June 5, 2002, from her Federal Heights home. They were arrested in March 2003 while walking in Sandy with the girl.

Medication » A judge in the state's 3rd District Court has ruled Mitchell cannot be forcibly medicated to try to restore his mental competency; the same judge ruled Barzee could be forcibly medicated, a process that began at the Utah State Hospital in May 2008.

Indictment » The state's case against Mitchell and Barzee stalled over the competency issue, leading the U.S. Attorney's Office to begin a case against the couple. A federal grand jury issued an indictment last year charging Mitchell and Barzee with kidnapping and unlawful transportation of a minor.

Competence ruling » Doctors at the State Hospital said this fall they believe Barzee is now mentally competent. She pleaded guilty Nov. 17 to the federal charges and agreed to testify against Mitchell in exchange for a 15-year prison term.

What's Next?

The federal competency hearing for Brian David Mitchell continues with defense witnesses slated to testify through the end of next week.

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