Salt Lake, UT - The ruling capped a painstaking effort by Dr. Michael Welner, forensic psychiatrist and Chairman of The Forensic Panel. Dr. Welner’s work generated a range of new facts, probative evidence and ultimately, key testimony from witnesses such as Elizabeth Smart, Mitchell’s wife Wanda Barzee, a host of lay witnesses, psychiatrist Noel Gardner, and Dr. Welner himself. Judge Kimball’s 149 page opinion heavily referenced information yielded by Dr. Welner’s work, and specifically recognized the merit of Dr. Welner and The Forensic Panel’s effort. Mitchell, who has referred to himself as Immanuel David Isaiah, now awaits a trial date.
In late summer 2008, federal prosecutors approached Dr. Welner, an Associate Professor of Psychiatry at NYU School of Medicine, with the request to reexamine the case in a federal proceeding. Dr. Welner was asked to inform prosecutors of any pertinent information missing from the Mitchell competency consideration, and to form an opinion following a peer-reviewed evaluation about Mitchell’s fitness for trial. Prosecutors indicated that they were prepared to accept the findings of the state court and later, a psychologist from the federal correctional facility on Mitchell’s lack of competence.
Two detailed reports of psychologists Jennifer Skeem, Ph.D., and Steven Golding, Ph.D had supported findings of incompetence. Both had testified at a 2005 state court hearing in which Judge Judith Atherton had ruled Mitchell incompetent. Dr. Noel Gardner, a psychiatrist, had testified for the prosecution in the state case that Mitchell was competent and personality disordered. Dr. Skeem had been the only person Mitchell interviewed with, to any degree, and this point was emphasized in the state court in the weight given Dr. Skeem’s testimony, and her references to distinguishing psychosis from religion.
As Mitchell refused to communicate to any degree about his history, psychiatrists at Utah State Hospital (Dr. Paul Whitehead and Dr. Gerald Berge) drew from history supplied to them by Dr. Skeem and Dr. Golding’s reports in their own competency assessments spanning 2005 – 2008. Dr. Skeem had asserted that Mitchell was psychotic because he characterized prosecutors as Satan, because he said he wanted to be martyred through trial, and because he was singing in court and unable to manifest appropriate behavior.
After reviewing the entire case file, Dr. Welner decided to immerse in the study of Mormon origins and then, of fundamentalist LDS sects and their leaders. Mitchell had written a “Book of Immanuel David Isaiah” (BIDI) which explained not only his religious teachings, but his experience with Elizabeth Smart as well. Mitchell’s co-defendant Wanda Barzee, meanwhile, had scribed “Journey Through the Land,” quite clearly a spiritual work of its own, in homage to Mitchell and his dominion over a new church. “I had to become familiar with a new culture for which psychiatry has not accounted,” explained Dr. Welner. “All forensics is local. And the local feature of this case was the language of Mitchell in his religion and how that spoke to how rational his thinking was, what inspired his religious path, and the context that shaped him.
From his early review of research on the relationship between religion and psychosis, Dr. Welner recognized that published studies bore little relevance to the unique qualities distinguishing fundamentalists LDS sects and those attempting to set up polygamous communities.
From a close review of state hospital notes, “I also recognized that there were many questions that had not been asked, and that Mitchell was successful in thwarting others’ approaches to him,” Dr. Welner explained. “I identified a number of sources who were witnesses to what doctors could not see and sought to learn from them. Blocked access only means you have to find different access. Evidence does not come to you – you have to go out and get it. It’s a professional responsibility.”
Dr. Welner pushed to interview staff that observed Mitchell every day, and whose charting suggested there was more that they were seeing of Mitchell than was coming to light in their notes. Questions developed by Dr. Welner drew stunning details of Mitchell’s manipulation of doctors and other staff. Several of these witnesses later testified before Judge Kimball and were noted favorably in the Court opinion.
The state hospital records were one of ultimately 199 sources of information reviewed by Dr. Welner in preparation of his findings. Along the way, he personally conducted 54 interviews of witnesses who informed an understanding of Mitchell’s diagnosis, his spirituality, his personality, his sexuality, and his life choices. Each of these areas was impacting Mitchell’s presentation to evaluators and the impressions of his ability to understand the proceedings, to relate to his attorneys, to rationally make choices about his case, his expressions to examiners, as well as his singing in court.
Elizabeth Smart interviewed with Dr. Welner for five hours; her revelations about Mitchell in that interview became the cornerstone of her dramatic testimony at the beginning of the competency hearing in October. Wanda Barzee, who interviewed with Dr. Welner also for over five hours, informed the psychiatrist’s impressions as well. Witnesses he interviewed included Mitchell’s siblings, mother, stepchildren, ex-wives, co-workers, those who had encountered him along the way, and others influenced by the same religious roots. When Dr. Welner attempted to interview Mitchell, his encounter provided evidence that demonstrated Mitchell’s composure and ability to control his behavior, as well as the impact of sexual fixations on his day-to-day thinking – even without Mitchell saying a word in six hours of face to face contact.
Along the way, Dr. Welner’s persistence also yielded information from the Church of Latter Day Saints. He interviewed ten bishops and stake presidents about Mitchell a former position holder in the Mormon church, his behavior, emotions, spirituality, and trajectory within his church and community.
In June 2009, Dr. Welner filed a 206 page report, peer-reviewed by David Walker, M.D. and Eric Drogin, Ph.D. The report addressed the different domains of competency and introduced into the Mitchell matter an extensive history of his pedophilia and sexual offending and how it related to the Book of Immanuel David Isaiah (BIDI). The report explained the centrality of cognitive distortions -- a tactic employed by sex offenders to minimize responsibility and to increase social desirability – to Mitchell’s communications in the BIDI and to fellow inmates and staff.
In addition, the report also was the first to detail the relevance of Mr. Mitchell’s psychopathic qualities, including sadism. A close examination of Mitchell’s practice and how it related to his expression also informed diagnostic and forensic questions.
From the release of the report, the defense aggressively sought to limit its impact, and to prevent the testimony of Dr. Welner and that of a number of witnesses he had interviewed and cited. In a Daubert hearing, the report, the defense opposed Dr. Welner’s conclusions, The Forensic Panel and the peer review methodology it has originated. But in a ruling on November 16, 2009, Judge Kimball completely dismissed all of these challenges. The work of Dr. Welner and The Forensic Panel, wrote the Court, reflected “best practices in forensic psychiatry and psychology.”
Even in the period after he submitted his report and prior to the eventual competency hearing, Dr. Welner continued to push for information not yet provided. Less than two weeks before the beginning of the hearing, he finally received the notes of Dr. Skeem’s interviews with Mitchell. This evidence chronicled the exchanges between the two in an October 29, 2004 meeting in which Dr. Skeem emerged and pronounced Mitchell incompetent for the first time.
That October 29 meeting had particularly aroused Dr. Welner’s curiosity; both defense and prosecution had agreed and stipulated to Mitchell’s competence in September and October 2004 while plea negotiations took place. Dr. Welner was puzzled by how Mitchell went from being agreed as competent and actively engaged in plea negotiations to being declared incompetent and severely impaired within a span of days – without any sign of clinical attention from an uninvolved party.
The October 29 notes of Dr. Skeem revealed that she had an extensive discussion with Mitchell in which he expressed his disappointment in not having succeeded in persuading prosecutors to drop a sex assault charge in a guilty plea to kidnapping. Mitchell had told the psychologist that he reasoned that others would have taken note of such a plea and wonder about whether there was more to him. In these notes, he expressed no desire for martyrdom, only to extract the most favorable deal possible. The attributions of “Satan” to prosecutors related directly to Mitchell’s reaction to receiving an angry and challenging letter from prosecutors when plea negotiations broke down. At the December 2009 competency hearing before Judge Kimball, these notes and their significance were presented to the court for the first time. Dr. Skeem, testifying in rebuttal, revealed even more notes that she had not before disclosed while she was on the witness stand.
In December 2009, Dr. Welner presented his findings to the court. Defense attorneys who cross examined Dr. Welner attempted, among other things, to portray him as “too cutting edge.” Yet with two attempts at cross examination of Dr. Welner, and with cross examination of numerous lay witnesses (including Elizabeth Smart) and other experts, defense attorneys did not demonstrate that any of the extensive history Dr. Welner gathered was inaccurate. Furthermore, given the opportunity for in-person cross examination the defense did not establish any challenge Dr. Welner on any aspect of The Forensic Panel’s methodology, his objectivity, his interviewing, or the necessity of his efforts.
After oral and written arguments, Judge Kimball issued his written opinion that Mitchell is competent last week. Judge Kimball cited numerous arguments from Dr. Welner’s testimony, referenced Dr. Welner’s interview of Wanda Barzee and Brian Mitchell, from evidence drawn from lay witnesses, and from a range of opinions, including research on cognitive distortions by sex-offending priests.
Judge Kimball also devoted extensive discussion to the significance of the discussion about plea negotiations that Mitchell held with Dr. Skeem, details she had not revealed to the state court. The Court noted “The omission of this highly probative information regarding the plea negotiations left the state court with the impression that Mitchell had experienced an inexplicable deterioration in his mental state, as opposed to disappointment and a need to modify his strategy in response to the rejection of his desired plea.” In a reference to the focus on Mitchell’s manipulation, Dr. Welner observed, “one does not need to manipulate or malinger when you have an expert witness who conceals evidence. If the notes of their meetings had come out in the state court proceedings, the competency issue would never have extended.”
Judge Kimball observed, “Dr. Welner conducted the most thorough investigation and compiled the most extensive history of Mitchell’s life…Dr. Welner’s efforts uncovered a substantial amount of new information,” and cited the persuasiveness of and credibility of his and Dr. Gardner’s testimony. Judge Kimball acknowledged the role of The Forensic Panel reviewers in ensuring the objectivity, diligence, and adherence to standards in the evaluation.
A number of criminal case classes are affected by Judge Kimball’s ruling, according to Dr. Welner. The focus on Mitchell’s explanation of his behaviors toward Elizabeth was interpreted by the defense as delusional. Dr. Welner testified that these were cognitive distortions, in which a person consciously distorts details to portray his encounters with Elizabeth Smart as consensual and even invited. Judge Kimball agreed with Dr. Welner.
“A finding that Mitchell’s BIDI assertions were delusional,” explained Dr. Welner, “would have opened the door to reconsideration of thousands of cases of sex offenders whose statements have been characterized as cognitive distortions, but would now be able to claim they were delusional and should all have their competency questioned,” noted the psychiatrist.
The Mitchell competency decision will impact competency proceedings in upcoming terrorism cases as well, observes Dr. Welner. “An al-Qaeda or Jihadist defendant can readily assert that he does not recognize American civil courts, that he answers only to God. Is that irrational? Is that obstructionist? The Mitchell court placed a heavy emphasis on evidence rather than psychological theory, and took cultural context and strategic thinking into account. This precedent will prevent confusion in future court proceedings attempting to resolve the origins of rejectionist thinking, whether they arise from fundamentalist LDS sects, anti-government groups like the Freemen, or fundamentalist Muslims,” he added.
Dr. Welner has not and will not comment on Mitchell’s anticipated defense, other than to say that he has presented his findings to federal prosecutors. If the case proceeds to trial instead of a plea, Dr. Welner will be updating his findings with more information not yet revealed in competency proceedings.
