Brian David Mitchell, the man convicted of kidnapping Elizabeth Smart, was originally declared unable to stand trial by reason of insanity, but Dr. Michael Welner's evaluation helped reverse that ruling and ultimately lead to Mitchell's life sentence.
In response to a request made by "Nightline," Utah District Federal Court released video of the interview Welner, one of the country's top forensic psychiatrists, conducted with Mitchell in 2009. The video has never been seen outside of the courtroom until now.
Federal prosecutors hired Welner to examine Mitchell, a 57-year-old homeless street preacher who claimed he was a Mormon prophet, and perform a complete evaluation of Mitchell's mental state. Welner spent hours with the accused, as well as conducted interviews with dozens of other people close to Mitchell, including Smart.
Welner, who also testified as the principal government witness in Mitchell's competency and insanity phases of his trial, determined that while Smart's kidnapper suffered from anti-social personality disorder, pedophilia, psychopathy and alcohol abuse, he did not suffer from a severe mental illness that would prevent him from standing trial.
After the interview tapes were released to "Nightline," Welner shared his opinions on how he determined Brian David Mitchell to be competent to stand trial.
What was your impression of Brian David Mitchell when you first met him? What was his demeanor like? Was he responsive?
Brian Mitchell entered the room with his eyes closed. He maintained this posture in silence. And so he conveyed the impression that he never intended to participate in the interview. He sang a few hymns, one as belligerently as one can sing. But otherwise he was peaceful and still -- for hours, and kept his eyes closed except for when he opened them to mere slits to see what I might be silently doing across the table as I waited to allow him to participate.
Tell me about his singing. What do you think was going on inside his head?
The singing derailed questions and was disarming at first. I sensed that was the point, especially when he chose another hymn in which he shouted "Repent, Repent, for the kingdom of heaven is at hand!" only feet from my face. It was aggressive enough to feel a sense of attack and I wondered whether that was the point -- that the 5-foot-5 and scrawny Mitchell could bellow in someone's face and keep them at a distance because he was yelling hymns, so others would not react to his aggression.
My impressions were confirmed when I learned from a jail inmate who had befriended him that Mitchell would retaliate against those who had taunted him by waking them up in the middle of the night by loudly singing hymns. Angry as the others were, what would they do in Salt Lake City to a man singing Mormon hymns? For Mitchell, singing served several purposes; it derailed conversation and thwarted scrutiny, and enabled him to take control over a situation. It was fascinating to watch how in court before the judge entered the courtroom, when Mitchell began to sing, everyone fell quiet -- even the prosecutors who found him so insincere.
Pertinent to the competency controversy, Mitchell's well-timed singing fed the mistaken idea of Mitchell as religion obsessed when he needed to impress examiners, and he knew it. But singing also was something he would turn off when it no longer served a purpose. When I ignored his singing, for example, it extinguished. Even when the interview became stressful. Judge Kimball observed Mitchell's singing to stop as he left the courtroom, having been excused.
What was his reaction when you showed him Elizabeth Smart's FBI interview?
Silent and with eyes closed for the first five to six hours, Mitchell swiveled his chair and opened his eyes to capture the image on a nearby television of Elizabeth speaking to police on videotape. He moved ever closer to the television and gazed intently at her in a way that I found leering. It was that creepy. Here he had maintained a silent posture with eyes closed, and the second the girl whom he stalked and then violated came on television, his lust trumped the strategy he had for dealing with my interview.
What did that tell you?
That sexual drive influenced him more powerfully than his intense efforts at concealing his abilities from scrutiny. This was consistent with other history on my evaluation that lust influenced him more than did religion, as well. Here was a man who would force one stepdaughter to look at pornography while their family was praying.
What made you conclude that Brian David Mitchell was competent to stand trial?
All of the history I gathered demonstrated to me that Mitchell understood exactly what he was charged with, was familiar with court procedure, was capable of cooperating with his attorneys when he chose to, could manage his behavior in court when he wished to, and recognized the evidence against him, the options available to him, and the penalties he was potentially facing.
In your report, you wrote that Mitchell suffered from anti-social personality disorder, pedophilia, psychopathy and alcohol abuse. How do those conditions distinguish from a person being considered "insane."
Mitchell knew what he was doing was wrong. He was a pedophile with a particularly high frequency of violating children in his custodial care, be they children or stepchildren. He was also a manipulative if theatrical fringe character for whom the Mormon faith gave structure and the opportunity for new life.
Panhandling as an ascetic figure in dated garb played well for him in tourist hubs in Salt Lake City, and obviously impressed psychologists unfamiliar with how living off the grid enabled him to live well and ignore his debts.
Like many others who aspire to form polygamist sects, and even like offending priests, he used the verbiage of religion to rationalize his indulgent sexuality and his stalking young girls before and after he kidnapped Elizabeth. Religious ideas did not drive his choices, sexual indulgence and a parasitic, responsibility free lifestyle did.
The way in which Mitchell related over the years to others, in its cunning, its callous exploitation and even his sadism reflected on him as more psychopathic than an otherwise unremarkable antisocial character.
Why was your opinion of Brian David Mitchell's competency different from those who had previously diagnosised him as unstable to stand trial? What do you think were the deciding factors?
The case presented to me had a narrative that had been passed down many generations of doctors, who had adopted earlier history without questioning it. I started with a blank slate and I was able to inform my opinions from having interviewed 58 different witnesses (one of which was Elizabeth Smart) and from approximately 200 sources before I testified. Along the way, I discovered a large amount of information new to the case. No one, for example, had accounted for the parallels between his beliefs and those who follow fundamentalist LDS thinking.
The treating doctors and earlier examiners gave no attention or examination of Mitchell's pedophilia and level of sexual deviance and gathered little information from collateral witnesses. So if you don't explore a diagnosis, and do not learn a history of a person's behavior and choices, you will never give that diagnosis. See no evil, hear no evil, diagnose no evil.
One of the first doctors who examined Mitchell was the only psychologist to whom he would speak about his case. That psychologist testified in 2005 that Mitchell was incompetent on the basis of her 2004 interview, which she described in court. No one questioned her account of those meetings with Mitchell, which had not been videotaped, and no one studied her actual interview notes.
I pressed to see her notes, which the defense finally released to me only two weeks before the December 2009 competency hearing. In 2005, that psychologist testified under oath that she did not know when plea negotiations had broken down and did not know much about the plea process at all. In 2009, I found that nearly seventy percent her own notes of that 2004 interview covered Mitchell's rational and very thoughtful discussion of the breakdown of the plea negotiations and the process. When I testified, I read nearly seven pages of these contradictory notes into the record. The judge later noted that this psychologist's "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."
Doctors subsequent to 2005 had similarly trusted that psychologist at her word to adopt her narrative as a frame of reference and for years endorsed Mitchell's being incompetent because he had not changed under their watch. She created a crack that Mitchell was smart enough to slip into by singing and avoiding talking to examiners, and he almost got away with the crime. The earlier courts repeatedly found Mitchell incompetent. The 2009 Court found him competent, and laid out the basis for its opinion in unambiguous detail.
The complexity of the Mitchell case could have been avoided had that psychologist represented what actually had transpired in her meeting with Mitchell. She did not, and the expert psychologist who is the only one to have witnessed an interview can exploit that lack of transparency. Sadly, courts don't universally force disclosure of notes from interviews, nor does the professional community, and so this kind of testimony happens, is never detected, and can have a huge impact on a case's outcome.
Editor's Note: Messages left for the psychologist mentioned above were not immediately returned for comment.
The court also just released the interview that the FBI did with him right after he was captured. What did you think when you saw that video? What did it tell you about Mitchell?
Here was Mitchell, after weeks of wandering homeless, without a good night's sleep, with erratic nutrition, on the receiving end of a forceful and very unpleasant interrogation from experienced law enforcement. And the interview clearly shows that it was actually Mitchell who took control of the interview.
Gradually, the experienced homicide detective and in particular the FBI agent lost their composure. Mitchell handled those charging bulls like a matador, with keen attentiveness to what information would reflect poorly on him legally, with behavioral and emotional discipline, fully relevant and aware in his factual responses. I was impressed with his intellectual agility and tactical thinking.
How had his demeanor changed from then to when you interviewed him in 2009?
Mitchell was far more relaxed with the interrogators and projected much more confidence about handling himself. In our interview, he would not even take the risk of making eye contact, let alone speak. But by the time of our meeting, he had the opportunity to take in the advice of attorneys and others. The lessons of both encounters reinforce for all the value of videotaping interviews, even when the examinee refuses to participate.
In addition to his forensic psychiatric evaluations of many of America's most complex cases, Dr. Welner is researching a standard for the worst of crimes, which invites participation of readers in the Depravity Scale, at www.depravityscale.org. He is also chairman of The Forensic Panel and an ABC News consultant.