Mitchell to face 3rd competency hearing

Published: Saturday, Feb. 28 2009 1:48 a.m. MST

Accused Elizabeth Smart kidnapper Brian David Mitchell will receive another full competency hearing, this time in federal court.

Friday, Mitchell, who once again was removed from the room for loudly singing hymns, made his first appearance in court since being sent to a federal facility in Springfield, Mo., to be evaluated by a court-appointed doctor. Whether or not the doctor believed Mitchell was competent to stand trial was not made public.

However, prosecutors told U.S. Magistrate Samuel Alba they believe there needs to be a "contested competency hearing" in order to allow both sides to bring in more experts to testify about Mitchell's condition.

Outside the federal courthouse, U.S. Attorney for Utah Brett Tolman said he was still in the process of digesting the report.

"It's a lot more complicated than just a one-liner you can agree or disagree with," he said of the doctor's diagnosis.

In court, prosecutors said they anticipated a competency hearing would take up to 10 days. Tolman said his office anticipated calling at least three expert witnesses as well as additional lay witnesses.

Some of those expert witnesses prosecutors are expected to call include Dr. Noel Gardner, who testified during Mitchell's state competency hearing that he believed the street preacher was competent. Also, forensic psychiatrist Dr. Michael Welner, from New York City, is expected to be called to testify.

A Wikipedia page on Welner called him "one of America's most renowned forensic psychiatrists. He has pioneered several advances in forensic science, and consulted as lead forensic psychiatry examiner on some of the most critical and complex cases in America in recent years."

Prosecutors say Welner has spent more than 200 hours reading through Mitchell's case files and now wants to schedule a time to interview him in person.

Mitchell, with his long scraggly beard and hands and feet shackled, was brought into court Friday wearing a yellow jail jumpsuit. From the moment he was brought into the room he sang in a loud voice. He first sang "The Time Is Far Spent," a song that can be found in LDS hymn books. After he was seated, he sang "Who's on the Lord's Side," followed by "We Are All Enlisted," which he continued to sing when the judge entered the room.

Defense attorneys had filed a motion requesting Mitchell be excused from Friday's hearing. Alba denied the motion, saying it was his duty as a judge to invite Mitchell to the courtroom to give him an opportunity to cooperate. For the next scheduling hearing, however, Alba agreed that he did not have to be present.

Mitchell was removed from the courtroom and taken to a holding cell where he could hear the proceedings.

He, along with his estranged wife and co-defendant, Wanda Barzee, were arrested in 2003 for allegedly kidnapping Smart and taking her to California before returning to Utah where they were caught nine months later. Barzee was ruled to be incompetent to stand trial in state court and ordered to undergo involuntary medication.

Mitchell was given two competency hearings in the state court system. He was ruled competent to stand trial Aug. 31, 2004, But following a series of outbursts in consecutive court hearings that would become a trademark of all his future hearings, Mitchell was given a second competency hearing in state court and was found to be incompetent to stand trial in 2006. Third District Judge Judith Atherton ruled, however, that Mitchell did not meet the criteria for forced medication.

Shortly after that ruling, prosecutors stepped up to move forward with their indictment on the self-proclaimed prophet. In November, Alba sent Mitchell to a federal prison facility, noting that a fresh evaluation was needed.

But Tolman said he was "encouraged" by much of the evidence his office had collected.

"The fact someone comes into court and sings doesn't make him competent or incompetent," he said. "We want bright lights to be shown on the dark corners of this terrible case."

The next scheduled federal court hearing in the Mitchell case is April 8. He will back in state court March 5.

E-MAIL: preavy@desnews.com

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