Dr. Michael Welner Describes Evaluating Elizabeth Smart's Kidnapper Brian David Mitchell

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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.

Read Judge Dale Kimball's full ruling HERE.

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.

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