Prosecutors' witnesses all OK'd for Smart case

Prosecutors will be allowed to use all of their intended witnesses in the upcoming competency hearing of accused Elizabeth Smart kidnapper Brian David Mitchell, including their expert witness, Dr. Michael Welner.

On Monday, U.S. Magistrate Dale Kimball denied several motions by Mitchell aimed at preventing the testimonies of Welner, all lay witnesses, Richard Forbes, Daniel Peterson and the writings of Ervil LeBaron to be introduced during Mitchell's upcoming competency hearing in federal court.

In addition, Kimball denied a motion to have the Nov. 30 hearing continued to a later date.

With the exception of Smart, who already delivered her testimony in October, and growing speculation that co-defendant Wanda Barzee will take the stand against her estranged husband, Welner is expected to be the government's key witness during the competency hearing.

Welner, a renowned forensic psychiatrist from New York City, has prepared a 206-page report on Mitchell in which he concludes Mitchell is competent to stand trial. In his report, Welner lists 161 sources of information, according to court records.

Defense attorneys argued Welner's methodology was flawed and his conclusions weren't supported by his findings. But Kimball in his ruling said Welner's testimony "is reliable expert opinion."

As for lay witnesses, Kimball noted the government's notion that Mitchell was malingering, or faking his illness, to avoid prosecution could not be completely discounted.

"It cannot be disputed, however, that there is an issue in this case as to whether (Mitchell) is malingering. As a result, the court concludes that lay witness testimony is relevant," Kimball said in his ruling.

LeBaron, the head of a polygamous cult believed to be responsible for murders in Utah and several other states, was never found incompetent to stand trial.

Forbes is a former head investigator for the Salt Lake County Attorney's Office and helped lead the murder investigation and subsequent conviction of LeBaron.

Peterson, a professor of Islamic Studies, is expected to testify about Judeo-Christian scripture.

Forbes is expected to testify that Mitchell's book, "The Book of Immanuel David Isaiah," is similar to LeBaron's "The Book of the New Covenant." His testimony, combined with Peterson's, will show that Mitchell's religious beliefs are grandiose but not delusional, according to prosecutors.

In his ruling, Kimball said the defense could raise objections on individual points during cross-examination.

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