Mitchell attorneys want fewer witnesses

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.