A startling revelation about the timeline of events during accused Elizabeth Smart kidnapper Brian David Mitchell's state competency hearing in 2005 has raised questions about a report written by Dr. Jennifer Skeem and infuriated the Smart family.
"I was appalled at what (Dr. Michael Welner's) testimony brought forth. I was absolutely sickened," an angry Ed Smart said Friday. "I was just overwhelmed. I was burning. I was furious. I was blown out of the water."
During the fifth day of Mitchell's federal competency hearing Friday, prosecutors called Welner, their key expert witness, to the stand.
Welner, a renowned forensic psychiatrist from New York City, compiled what is believed to be the most extensive study of Mitchell to date. His 205-page report lists 161 sources of information, including interviews with Elizabeth Smart and Mitchell's co-defendant and estranged wife, Wanda Barzee.
Welner confirmed that he billed the U.S. Attorney's Office $500,000 for the report.
Friday, Welner said he had reviewed the report prepared by Skeem in 2004 for Mitchell's state court proceedings. Skeem, a forensic psychologist, was hired by Mitchell's defense team. She initially found Mitchell competent to stand trial, but then changed her opinion to incompetent a short time later.
Welner laid out a timeline of events surrounding Skeem's report. Through September and October of 2004, the defense and prosecution were trying to work out a plea deal in Mitchell's case, Welner said.
On Oct. 15 and Oct. 22, the defense sent letters to prosecutors noting that they had been advised by Mitchell to reject the plea deal. Until that point, Mitchell seemed to be actively engaged in working on a plea agreement with his defense team and there was no mention of a competency issue, Welner said. On Oct. 22, the plea negotiations collapsed.
On Oct. 29, Skeem conducted a six-hour interview with Mitchell. On Nov. 9, she filed a petition for a new competency hearing in 3rd District Court. Skeem felt there had been a marked decline in Mitchell's abilities and that his delusions had taken a dominant role.
In court papers, Skeem said one of the reasons for her request was because of a decline in Mitchell's "ability to manifest appropriate courtroom behavior."
Welner, however, noted that it wasn't until the following hearing on Dec. 2 that Mitchell sang in court for the first time. To that point, Mitchell's courtroom behavior had not been disruptive, he said.
"She had remarkable foresight into the future," Welner said.
After court ended Friday, an infuriated Ed Smart said he was anxious to hear Skeem's explanation.
"I'm hoping to hear a good defense from her. I feel like it is because of that document that he was sent to the mental hospital and this thing has gone on for five years since then," he said. "It shouldn't be this hard, for heaven's sake. I hope we get to the bottom of Skeem. It just makes me sick. It just makes me absolutely sick."
It was revealed Friday that as part of those plea negotiations, Mitchell wanted to prevent Elizabeth from testifying during sentencing. Prosecutors rejected his proposal.
Once plea negotiations broke down, Welner believed Mitchell "made a decision that he needed to derail the process. … Brian Mitchell stopped this train in 2004."
Welner is the government's final witness in Mitchell's scheduled 10-day competency hearing. He took the stand for six hours Friday and was expected to take up the entire day Monday when court resumes. During his testimony Friday, Welner restated his belief that Mitchell was competent to stand trial and was putting on an act with his religious persona and singing outbursts. He used words such as "chameleon" to describe Mitchell, and "contrived" and "theatrical" to describe his singing. He said Mitchell has been known to "sing at the top of his lungs" at 2 a.m. during his stay at the Salt Lake County Jail. When asked by his cellmate why he does it, Mitchell told him it was to "retaliate" against other inmates who pick on him, Welner said. Singing hymns was a passive-aggressive way of getting back at them, he said.
When Welner attempted to interview Mitchell earlier this year, he entered the interview room with his eyes closed. The self-proclaimed prophet sat in a chair, folded his arms and kept his eyes closed.
"It was the first time I can remember someone walking into the room and the interview didn't have a prayer," he said of his perceived odds of getting Mitchell to say anything.
The interview unexpectedly and dramatically changed, however, when Welner turned on a videotape of Elizabeth Smart being interviewed by police shortly after she was found in 2003.
"His response was actually pretty startling," Welner said.
As soon as Welner started the tape, he said, Mitchell began swiveling in his chair, opened his eyes and turned around, staring intently at the TV. As Welner described it, Mitchell was "locked in" to the video.
"I'm startled and I got a chill because I was totally caught by surprise," Welner said, describing his response to Mitchell's sudden reaction.
For the next several minutes, Mitchell watched the TV intently, even scooting up in his seat so his face was only a foot from the screen. Mitchell's mannerisms and facial expressions changed as well, Welner said. He looked inquisitive and concerned as Smart told officers about the night she was kidnapped and sexually assaulted by Mitchell. As he watched the tape, Welner noted that Mitchell was quiet and composed, acted appropriately, was not disruptive and did not sing, despite being in a highly stressful situation as a defendant facing an accuser.
"He's perfectly capable of sitting in court quietly if he wishes to. He doesn't have to sing if he doesn't want to," Welner said, basing his assessment on Mitchell's reaction to the video. "I don't think there's anything in that video (of Mitchell watching Smart's video) that's reflective of anything psychotic."
Welner also testified that "Elizabeth Smart was brainwashed. That's what happened. That's part of what she went through."
Welner interviewed Elizabeth Smart for five hours earlier this year. From that, he said he learned that even though Mitchell claimed to be doing God's work, instead "lust trumped religion."
"Whatever the religious aura of some of his discussions and preachings, that took a back seat to his sexual libido," he said.
Prosecutors Friday methodically went over Welner's credentials about how he became involved in the case. When the U.S. Attorney's Office first contacted Welner in July 2008, he said he was told "the federal government was wrestling with the fate of this case." The government was willing, he said, to go along with his conclusion, whether he agreed with the defense's experts or the prosecution's.
Welner said it became clear right away that he needed to do research on The Church of Jesus Christ of Latter-day Saints and the role of revelation, prophets and Joseph Smith in the church. He also researched fundamentalist Mormon groups and the role that polygamy plays in each.
Welner defended the report's $500,000 price tag, noting he spent more than 1,000 hours compiling it. He said he gave prosecutors a discount agency rate for his services compared to what he normally charges.
Ed Smart said based on what he's heard so far, he'll be shocked if Mitchell isn't found competent. He added that at this point, he'd never agree to another plea bargain.
"He deserves the full course of justice thrown against him and never see the light of day. The legacy (outlined) this week (of Mitchell's life) has left nothing short of misery and abuse and it's the antithesis of God, of caring, of what religion is," he said. "I can't see much room for a defense of him being incompetent."
Smart said the week had also reaffirmed the importance of families teaching their children that the cycle of abuse doesn't have to continue and that children have the power to make decisions that give them choices when given the proper education.
"We have to do something to change what our children are being exposed to," he said.
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