Defense attorneys discount competency evaluation of man charged in Smart kidnapping

By JENNIFER DOBNER , Associated Press

Last update: November 6, 2009 - 10:51 AM

SALT LAKE CITY - Defense attorneys for the man charged in the 2002 abduction of Elizabeth Smart say a psychiatrist's report deeming him competent for trial is advocacy, not an objective evaluation of facts.

In U.S. District Court filings released late Thursday, defense attorneys criticize Dr. Michael Welner, saying he relied only on data or evaluations that supported his own opinions.

Welner, who was paid $400,000 by federal prosecutors, concluded Brian David Mitchell suffers from multiple mental disorders but is competent for trial. His report suggests the former street preacher is exaggerating or feigning symptoms of illnesses to avoid prosecution.

Mitchell, 55, has twice been ruled incompetent since Smart was found in March 2003, walking a suburban street with him and his now-estranged wife. Those findings stalled a state court case, where Mitchell is charged with multiple felonies, including kidnapping and aggravated sexual assault.

Mitchell was indicted in 2008 by a federal grand jury on charges of kidnapping and unlawful transportation of a minor, and faces a 10-day competency hearing that begins Nov. 30.

Defense attorneys don't want Welner's report deeming Mitchell competent used as evidence at the hearing, saying mischaracterizations and omissions make the evaluation unreliable.

Defense arguments focus on four elements of Welner's evaluation: Mitchell's periods of silence, or "word fasts," repeated hymn singing, an alleged escape plan from the hospital and Mitchell's statements about a corrupt judicial system.

For example, Welner relies on information from a hospital staffer who said Mitchell stopped talking only after hearing that another patient was deemed competent based on interactions with staff.

But copies of hospital staff notes show Mitchell has gone for periods of up to 18 months without speaking since he arrived at the hospital in 2005.

The notes say Mitchell refused to use soap and toothpaste because he viewed them as "synthetic and a product of a corrupt system." Staff notes also show Mitchell made frequent references to God and believed he would be judged by a higher power.

Welner dismisses any religious preoccupation and said Mitchell is bereft of belief or feigning religiosity to thwart treatment, defense papers show.

Smart, kidnapped from her Salt Lake City bedroom at knifepoint when she was 14, has testified Mitchell took her as a second wife and raped her daily throughout her nine months of captivity.

Documents detailing defense objections had been sealed. Last week, a judge ordered the papers released — with some portions redacted for privacy reasons — after an attorney for a group of media organizations, including The Associated Press, challenged the sealed filings.

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