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Mitchell attorneys want fewer witnesses

Prosecutors list 39 people who could take the stand in trial

Published: Friday, Aug. 28 2009 12:00 a.m. MDT

Defense attorneys for Brian David Mitchell, accused of kidnapping Elizabeth Smart, want prosecutors to cut back the number of witnesses they potentially plan to call to testify during Mitchell's upcoming competency hearing.

In a memorandum filed this week in federal court, defense attorneys say the U.S. Attorney's Office has submitted a list of 39 witnesses to potentially testify, including current and former staff members at the Utah State Hospital, as well as former friends, acquaintances, co-workers, ecclesiastical leaders and family members. This is in addition to several police and expert witnesses also on the list.

The defense argued in court documents that the testimony of lay witnesses, who are expected to talk about their observations of Mitchell, not only have little to do with the competency hearing, but the observations are not even disputed by Mitchell.

"There can be no need for the court to devote hours of time listening to live testimony of facts that are not in dispute," the defense said in court documents.

Many of the observations the lay people were expected to talk about regard things that happened years ago.

"Such observations made long before any federal charges were filed are likely to have little if any relevance to Mr. Mitchell's current mental state," court documents state.

The key witness for prosecutors is expected to be Dr. Michael Welner, a renowned forensic psychiatrist from New York City. Because Welner talked to many of the lay witnesses in preparing his report on Mitchell, the defense lawyers said he would likely include those interviews in his testimony.

"Considering the voluminous nature of Dr. Welner's report, it is doubtful that he omitted any information provided by lay witnesses that he believed germane to the issue of competency," defense attorneys wrote.

Mitchell's attorneys are also concerned about having a "trial within a trial" and tainting a future jury with testimony not needed for a competency hearing.

"The court's evaluation of the competency issue should not be sidetracked by extended testimony and litigation over the facts of Mr. Mitchell's life and the specifics of his crime," the memorandum states.

Prosecutors in February estimated the upcoming competency hearing will last at least 10 days, while defense attorneys were hoping it is shorter.

Mitchell's attorneys also filed a motion this week to exclude writings by polygamist leader Ervil LeBaron, as well as expert testimony from Richard Forbes and Daniel Peterson.

"This motion is based upon the fact that 'The Book of the New Covenant,' by Ervil LeBaron, and the testimony of both Mr. Forbes and Mr. Peterson are completely irrelevant to the issue of Mr. Mitchell's present competency to stand trial and should be excluded," the motion states.

Another motion calls for a deadline to be set for expert witnesses to file their reports. Specifically, the defense is concerned about not having enough time to review any additions Welner may add to his report.

In court documents, the defense cites Welner's report as saying "it is possible that Brian may meet other criteria for narcissistic personality disorder which are not now credited (because my suspicion does not rise to the level of certainty), or other personality disorders, as well."

Welner seems to leave open the possibility of seeking more interviews for his report, according to court documents.

Mitchell, 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 in 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. A judge ruled, however, that Mitchell did not meet the criteria for forced medication.

Mitchell was scheduled to be back in court for a scheduling conference Monday.

e-mail: preavy@desnews.com

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