Prosecution's last witness takes stand in Brian David Mitchell trial
Michael Brandy, Deseret News
SALT LAKE CITY — The prosecution's key expert witness in the trial of Brian David Mitchell, accused of kidnapping Elizabeth Smart, does not believe the former street preacher's alleged religious beliefs are sincere and he is not mentally ill.
Dr. Michael Welner methodically went over example after example in explaining why he believed Mitchell was a pedophile, and why he evaluated him as having anti-social personality disorder and narcissistic personality disorder. None of those traits are classified as a severe mental illness.
Welner was on the witness stand for the majority of the day Wednesday. Court was held over by three hours past its normal stopping time, but attorneys were unable to complete their questioning. Welner will return to the stand Thursday morning for more cross-examination and possible rebuttal questioning.
Prosecutors are then expected to rest and the defense may call at least one more rebuttal witness of their own. U.S. District Judge Dale Kimball told the jury that they may be hearing closing arguments and receiving jury instructions by Thursday afternoon or Friday morning.
During his testimony Wednesday, Welner pointed out numerous examples of Mitchell not living by his alleged religious credo. He said that was key in forming an opinion on Mitchell.
"That's part of the question, what does Brian David Mitchell really believe?" he said.
A delusion is a fixed false belief, Welner said. But Mitchell's beliefs were not fixed, and Mitchell didn't really believe them himself.
His revelations, for example, were frequently altered or abandoned, he said.
"Tests of faith would result in the abandonment of faith," Welner said. "If the revelations are abandoned for convenience, for profit, then the revelations themselves are not sincere."
In one example, Welner noted that Mitchell's reasoning for taking Smart had changed depending on who he was telling the story to and in what context.
"The evidence demonstrates that Brian David Mitchell's account of the kidnapping has changed in several ways. He has represented that Elizabeth came voluntarily. At the same time he presented to Wanda that she had to be taken by force."
Mitchell claimed to have a revelation to take a 14-year-old girl, but when the FBI questioned Mitchell about Smart's age, he told them she was 18 in God's eyes, Welner said.
Twice when trying to avoid detection from police, Mitchell either hid in nearby bushes or threatened Smart to be quiet rather than relying on faith to allow them to go undetected.
"A number of different aspects of his life spoke to insincerity of his faith," he said. "There is ample evidence of revelations either changing or being abandoned."
Another example Welner gave was that Mitchell claimed to have a revelation from God that he and Wanda Barzee should wear robes. Yet after 9/11, Mitchell decided himself to stop wearing the robes out of fear of being viewed as a terrorist.
Even though in Mitchell's religious beliefs he spoke of a corrupt world and how the LDS Church had been corrupted, "There is no component of his life that is devoted to kindness," Welner noted.
"His life is remarkably baron as it relates to acts of kindness as opposed to acts of taking and taking from others and entitlement."
The beliefs that Mitchell professed to have were similar to those by any other fundamentalist LDS sect, he said.
"The cultural context is such that if Brian David Mitchell is considered delusional then we would have to consider the entire community of fundamentalist LDS delusional," Welner said.
Welner also discussed how Mitchell is not only a good liar, but skilled at effectively misleading people.
"To know Brian David Mitchell is to be fooled by Brian David Mitchell," he said.
Prosecutors showed the court a video of an interview Welner attempted to conduct with Mitchell in April 2009. Mitchell refused to speak to Welner and sat in a chair with his eyes closed and arms folded.
But when Welner played a video-taped interview between Smart and the FBI conducted days after she was rescued, Mitchell went from having his back to the television to completely turning around and moving closer and closer to the television, listening intently.
"I was particularly struck by how close he was to the TV and he moved closer," Welner testified. "He was very attentive."
During Mitchell's own interview with the FBI after his arrest in 2003, Welner described Mitchell as a "matador" who "suffocated" the two officers trying to interview him and took control of the situation.
Welner also listed several cases since Mitchell was a teenager that pointed to his pedophilia tendencies.
"He's a pedophile, that has to be front and center," he said.
Welner, a renowned forensic psychiatrist from New York City, has compiled what is believed to be the most extensive study of Mitchell to date. His 206-page report lists 210 sources of information, including interviews with Smart and Mitchell's convicted estranged wife, Wanda Barzee. He has spent more than 1,600 hours working on his evaluation of Mitchell since 2008. Welner interviewed 58 himself.
Defense attorneys during cross-examination immediately, and extensively, questioned Welner about the hefty paycheck he has received from the U.S. government as compensation for his services. Welner said he has billed the government for more than $746,000. He charges the government at a discounted rate of $425 an hour, down from his regular $550 an hour. He is being paid $5,000 a day to testify, and through Wednesday had testified about 2 1/2 days. He also has the government reimburse him for airfare and hotel costs.
Questions were also raised during cross-examination about exactly when the government started paying Welner for his services. Federal defense attorney Wendy Lewis said by Nov. 6, 2008, the government had approved more than $26,000 to pay Welner. But Mitchell didn't arrive at the federal prison in Springfield, Mo., until early in December of 2008 for his competency evaluation.
By January of 2009, more than $86,000 had been approved to pay Welner, she said.
Dr. Richart DeMier conducted the evaluation and found Mitchell incompetent to stand trial.
Welner testified he interviewed Smart, even though previous taped interviews were already available, because she had the opportunity to interact with Mitchell during the nine months she was with Mitchell more than anyone else and observe him when his "guard was down."
"It was a unique and invaluable opportunity to learn from someone who spent so much time day-to-day with Brian Mitchell," Welner said.
Welner testified that he didn't believe Mitchell was as forthcoming in previous interviews with others and that he recommended prosecutors interview staff at the Utah State Hospital where Mitchell has been housed.
During cross-examination, Lewis named one or two staff members who were not interviewed by Welner who believed Mitchell was not mentally competent. Welner said he could not speak specifically to those people, but it may have simply been a matter of time or they may have played phone-tag and never got to sit down together.
"You can only do what you have time for," he said.
Lewis also methodically went through different parts of Welner's evaluation, bringing up examples of Mitchell's behavior that seemed to contradict Welner's report.
Welner responded by again talking of Mitchell's manipulative nature and his ability to fool people, and how some of Mitchell's and Barzee's writings caused him to pause and consider the source.
When asked why he did not interview Dr. Paul Whitehead, the clinical director of the forensic unit at the Utah State Hospital who found Mitchell suffered from a delusional disorder, Welner said he read all of Whitehead's notes and reports and found them to be about all he needed. He also noted that he called Whitehead for clarification on part of his report, the same number of times that DeMier called Whitehead in formulating his evaluation.
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