Brian David Mitchell lawyers lose motion to leave

The federal competency hearing for accused Elizabeth Smart kidnapper Brian David Mitchell will start Monday despite an attempt by his defense team Tuesday to withdraw.

"I'm not letting you out. I'm ordering you to represent your client," U.S. District Judge Dale Kimball told federal defense attorney Robert Steele. "So, we'll see you Monday."

The decision not to allow Mitchell's defense team to withdraw came during an emergency hearing Tuesday. Earlier in the day, Steele filed a motion to withdraw, saying that one of the people on the government's list of witnesses for the upcoming competency hearing was once represented by the Utah Federal Defender Office.

No member of Mitchell's current defense team represented that witness, who was not named in court documents. But Steele said he and his team were aware of the individual's file, "which contains information that could be used for impeachment purposes," Steele wrote in court documents.

In court, prosecutors told Kimball they did not intend on calling the unnamed witness to the stand during the competency hearing. But their key witness, Dr. Michael Welner, had interviewed that person and was prepared to talk on the stand about what that person told him.

Welner, a forensic psychiatrist from New York City, has prepared a 206-page report on Mitchell and is expected to testify that he believes Mitchell is competent to stand trial and assist his defense.

Although Steele said he had not yet looked at the unnamed person's file, it would be unethical for him to cross-examine Welner regarding the unnamed person because there might be unflattering information in that file that the defense could use to discredit him or her. Steele said, however, that that information might not currently be public information.

Kimball said if the damaging information wasn't already in the public record, it wouldn't be admissible in court anyway.

"I just don't see how that's a problem," the judge said.

"We have to go beyond public record," Steele replied.

"I won't let you do that," Kimball countered.

At one point Kimball sealed the hearing so Steele could talk more openly about the unnamed man and the information he had on him. Kimball reopened the hearing after about 20 minutes to announce the decision not to accept Steele's motion to withdraw.

e-mail: preavy@desnews.com