Mitchell transcript: Star psychiatrist takes stand

This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In the final days of a case that has lasted nearly eight years, Brian David Mitchell began singing in regular fashion on Wednesday morning before once again being escorted out of the courtroom.

The defense resumed cross-examination of the prosecution's rebuttal witness Noel Gardner, who is a psychiatrist with South Valley Mental Health.

Gardner was also involved with diagnosing Utah's most recent felon to be executed by firing squad, Ronnie Lee Gardner, after he was convicted. Defense attorney Parker Douglas pointed out in addition to Mitchell, Gardner also found Ronnie Lee Gardner competent to agree to be executed by firing squad after diagnosing him with anti-social disorder. Douglas highlighted previous high-profile cases where Gardner was also involved as an expert witness, all of which he diagnosed as mental disorders, rather than severe mental illnesses.

Prosecutor Diana Hagen asked a few brief redirect questions before Gardner was released from the stand.

Hagen asked if Gardner came to a conclusion on Mitchell's sincerity.

"I think it is very clear he was not sincere," Gardner said. "In fact, he — very specifically — he would plan and plot his personas."

Douglas cross-examined Hagen's redirect asking if other religious leaders did not also struggle with doing the right thing.

"Mr. Mitchell is not struggling to do the right thing," Gardner said. "He is perfectly happy to exploit."

Gardner was excused, and the prosecution called its final rebuttal witness, psychiatrist Michael Welner, who is a paid witness and found Mitchell competent. Welner, considered a star witness, has received more than $600,000 for his work in the Mitchell case up to this point.

The microphone was turned off for the first few minutes of Welner's testimony, during which he described his credentials.

The Tribune will provide a transcript of Welner's testimony from that point forward.

Prosecutor Diana Hagen: What kind of work did you do in Bellevue?

Welner: The correctional psychiatric service at Bellevue is a pretrial setting, it serves the population from a setting called Rikers Island, located in Queens, a large jail facility, and Brooklyn, a house of detention. As primary physician, if someone develops a psychiatric problem, they send him to a place where there's a lot more staff concentration, acute care can be administered if they have repeatedly violent or suicidal or other manipulative behavior. It's an exclusively pretrial setting, dealing with the stresses, the challenges, the conflicts that are unique to pretrial detainees. We are asked by a local clinic for which competency examinations are assigned, the unremarkable competency, to interview if a case required closer security, including 24-7 observation. They would be sent to Bellevue and conduct competency evaluations after a long period of observations, if someone was arrested in custody and needed acute medical attention. That gives you the core of it.

Hagen: Was there a time you entered private practice?

Welner: Yes, primarily for treatment responsibilities and private forensic consultation. In 1995, I went into practice full-time and assumed more forensic responsibilities, as well.

Hagen: What has been your focus?

Welner: My focus has been treatment as well as forensics. I'm always going to treat patients, that's why I went to med school in the first place. Forensics is part of my life, treatment is part of my life. There are other portions of my professional portfolio.

Hagen: How many people charged with major crimes have you evaluated?

Welner: Several hundred at this point.

Hagen: How many in relation to legal insanity?

Welner: 40 to 50. Closer to 40.

Hagen: Is that standard?

Welner: Yes.

Hagen: Is there a court panel you serve on in New York?

Welner: Yes, the New York State Supreme Court maintains a panel of independent, highly qualified psychiatrists. The reason they maintain it is to answer questions of people being committed through the criminal and civil system, rather than have attorneys in an adversarial setting in court, both attorneys agree on it. It also deals with medication refusal and forcible medication, a few other questions, as well.

Hagen: Do you consult regularly on cases outside of New York?

Welner: I have.

Hagen: Have you testified in various jurisdictions?

Welner: I have.

Hagen: Both federal and state cases?

Welner: I have.

Hagen: Worked with both prosecution and defense?

Welner: I have and I do.

Hagen: You mention you still treat patients and have other activities. Have you testified before state legislatures on topics relating to psychology and law?

Welner: Before three state legislatures on issues with interface of psychology and law: Texas,

Pennsylvania and New York.

Hagen: Have you been involved in any publications?

Welner: I have.

Hagen: You were a publication editor?

Welner: From 1996-2000, 2001 I published and was editor in chief of a publication that covered the interface between psychology and the law, called the Forensic Echo.

Hagen: You have researched on topics relevant to this case?

Welner: I have.

Hagen: You have given presentations that have related to same themes?

Welner: There are a number of presentations I have given that relate to the subject matter I'm going to speak to here. I did research on polygamous sect leaders and presented findings of my research at the annual meetings of forensic psychiatrists.

Hagen: You've been a consultant to newspapers?

Welner: I have and do, ABC News.

Hagen: Do you also appear on other programs?

Welner: Seldom, I usually turn them down because of not enough time. I have appeared and I've done that, but right now I primarily consult for ABC News.

Hagen: You mentioned academic appointments.

Welner: NYU school of medicine.

Hagen: What classes?

Welner: Psychiatric interviewing to medical students, where they sit with a patient and students interview and learn to diagnose different psychological diagnoses and treatment. I also am responsible to lecture grand rounds, satellite campuses for NYU.

Hagen: Do you also mentor and train students in the forensic psychiatry?

Welner: I do, I work [for a group that ] hosts forensics students from all over the world, but primarily in the state,

Hagen: You've gotten rewards not from that work but for American Psychiatrist Association for excellence in teaching. ... You indicated you are the chair for the Forensics Panel. What is that?

Welner: The National Forensics Panel has science forensic psychologists, emergency medicine and a couple other medical specialists ...

Hagen: How many specialists are practicing in the forensic panel?

Welner: Between 40 and 50.

Hagen: Can you give an example of those people?

Welner: People who are members of their practice, Michael First, a medical professor and editor of the DSM; Executive Vice President of Baylor David Fowler; the chief medical examiner of the state of Maryland. That gives you an idea of the people who I answer to and proud to have. ...

Hagen: How are you paid for your time?

Welner: I am paid hourly.

Hagen: How much do you charge per hour?

Welner: $550.

Hagen: How much are you charging the U.S. Government?

Welner: $425.

Hagen: Why lower?

Welner: Typically with the agencies we give a discounted rate, civil or criminal or prosecution or defense.

Hagen: Do you have criteria for cases you're willing to work on?

Welner: Yes, we turn down most of the cases that come in, mainly because of a limited amount of time. We take complex and highly sensitive cases. If I require access to information, I go to the attorney and say I need to see this. I operate independently. If I am conducting an inquiry I am not chaperoned, not supervised. They do not tell me what questions to ask or identify source materials. We find the sources on our own. You have to accept our opinion. If it's problematic for you legally, you have to deal with it and make decisions from there.

Hagen: You were contacted by the U.S. Attorney's Office?

Welner: Yes, Richard Lambert in 2008.

Hagen: The former prosecution?

Welner: Yes.

Hagen: Did our office put any conditions on your findings?

Welner: No.

Hagen: When did you begin with this case?

Welner: I began in a very limited degree in fall 2008, and began working in earnest in late 2008.

Hagen: Have you billed for all of your time?

Welner: Absolutely not.

Hagen: How many hours have you put on [this] case?

Welner: 1600 hours of work on this case.

Hagen: What is your opinion?

Welner: It is my professional opinion at the time of the crime in June 2002 —

[Objection by the defense. Judge overruled.]

Hagen: What is your professional opinion on Mitchell having a severe mental defect?

Welner: It is my professional opinion that he did not.

Hagen: How do you go about determining that?

Welner: If there is no question of financial issues, you do what you can to track e-mail and IM and Facebook. You track evidence as evidence dictates, and then you search by necessity. One myth about evidence is that it is there like low hanging fruit. You don't learn that until you actively search.

Hagen: Has the jury heard from those people you have talked to?

Welner: The jury has heard from a number of those witnesses.

Hagen: How did you start investigating?

Welner: I started by reading police reports. I picked up the book of Immanuel David Isaiah, and I said, "Stop." I had to stop.

Hagen: Why was that?

Welner: I had a nagging feeling ... I didn't feel I would have the qualification to go forward on the case until I had learned more about the Mormon culture and Joseph Smith and how it relates to Mormon Theology because I couldn't define the boundary of faith and not faith. Included in that, I needed to have a better understanding of polygamy and the history of it and what happened to it. It also became clear to me that I needed to have an understanding of schizmatic fundamentalist polygamous beliefs because that became the terrain of this case.

Hagen: Did you feel you had an accurate and complete picture of the defendant himself?

Welner: Oh no, but to be fair to the defendant I wouldn't have known initially either. Your objective over the course of evaluating is to diminish [the] gray and find as much clarity as possible. It would be my professional sherpa to defining this case.

Hagen: Did you identify additional sources of documentation?

Welner: I did.

Hagen: And did you contact a number of sources yourself?

Welner: Yes.

Hagen: Is that typical?

Welner: I do it all the time. Third party interviews is what distinguishes clinical psychiatry from forensic psychiatry. It puts a requirement that you have a good feeling on "the rest of the story," as Paul Harvey would say. You think you have the whole story and you pause.

[Defense objects to hearsay. Judge overrules.]

[Exhibits 112 and 112a are admitted into evidence.]

Hagen: Dr. Welner how many police investigative reports did you review in this case?

Welner: 20.

Hagen: How many interview transcripts and video tapes?

Welner: 6.

Hagen: Personal papers ... of the accused and Ms. Barzee?

Welner: 12.

Hagen: How did you treat those sources?

Welner: As scripture, scripture that was designed to be spiritual and self-affirming.

Hagen: Did you take those at face value?

Welner: No, I did not.

Hagen: If they were taken at face value, could that compromise the investigation?

Welner: Oh, absolutely — my point being that as I have read scriptures, I have come to appreciate it, and they have been written to be an homage to God. It shapes that position. In certain instances it may be deserved. If you fall in the rabbit hole of relying on scripture for reality, you may have been led astray, and you don't know where.

Hagen: Did you read reports from other examiners?

Welner: Yes, I did.

Hagen: How many?

Welner: 17.

Hagen: Did you read records to marriage and family relations?

Welner: I did.

Hagen: How many of those?

Welner: 12.

Hagen: Criminal records of Mr. Mitchell?

Welner: I did.

Hagen: How many?

Welner: 9.

Hagen: How many court documents did you review in this case?

Welner: 11.

Hagen: When you were reading the Utah State Hospital chart, did you identify workers that you thought had relevant information?

Welner: Well, yes and no. I read the charts and came to the conclusion that there was much more there than what was in the chart. Dr. [Paul] Whitehead took good notes but believed that Mitchell hadn't communicated everything. The chart was — Mitchell was in there for a selected period of time. Two, he was not forthcoming. Three, a number of people [were] there that did not see Mitchell the same way Whitehead did. Four, and other people were not documenting everyday and may have more that they saw that they didn't take notes of. I provided your office and the FBI with people at the office who may have more information assessing diagnosis and issues as a staff. Here we had folks that over a few years period ... had opportunities to make observations, but also the ability to see evolution: Did he change over time? What was his emotional display? This emerged from a list that was much greater that I recognized, that people at the hospital ... were able to provide much more information than the chart.

Hagen: Let's go back one page. How many reports and interviews did you review?

Welner: 30.

Hagen: Sorry, can we please go back to the previous slide? A number of interviews did you follow up with certain individuals where further clarification was needed or it appeared that that individual had a number of experiences that would be informative?

Welner: Yes.

Hagen: So is the same person listed because of follow up?

Welner: Judy Fuchs is on there more than once. I interviewed her in March. If nothing comes to me, then I say follow up and ask these questions.

Hagen: How many post-arrest records did you review?

Welner: 18.

Hagen: ... Records related to Wanda Barzee?

Welner: 3.

Hagen: Did you review any media transcripts?

Welner: Yes, I reviewed 4.

Hagen: For factual information?

Welner: Yes. I want to make a clarification of media. I traditionally rely upon media resources when reading a transcript or taped interview so I understand the entirety of the interview. Even if I view a portion or part with much more caution, if I can watch for an extended period of time and it be much more informative.

Hagen: How many interviews did you conduct?

Welner: 57, the 58th is the meeting with Mr. Mitchell.

Hagen: Is this a list of the people you interviewed?

Welner: Yes.

Hagen: How many were interviewed by Dr. [Richart] DeMier?

Welner: One: Brian David Mitchell. I interviewed 58 people. My opinion is informed by 210 sources of information.

Hagen: Can you scroll through to get a sense of how many were interviewed? Who was your first interview?

Welner: Elizabeth Smart.

Hagen: Why did you choose to interview Elizabeth?

Welner: It was a unique and valuable opportunity to learn from someone who had spent so much time day to day with Brian David Mitchell, who was in a position to be with him at the very time of my evaluation. My evaluation for this proceeding concerned itself with the period preceeding the decisions to kidnap Elizabeth Smart, the kidnapping of Elizabeth Smart and the sexual assault and continued sexual assault and kidnap over nine months. No one had a more direct witness of those experiences, not only the rapes themselves but all of the time in between. My experience with sex assault victims, it's common to talk with them about the encounter — the before, during and after — and an extra importance in forensic psychological evaluation. This was all going on in the environment and atmosphere with no one but Elizabeth, Wanda and Brian, and in certain instances only Brian and Elizabeth. For nine months she had the opportunity to observe person to person, to observe and educate me about what she had seen in particular. Especially because of challenges that had come up in the reports, where he communicates on his own terms. Elizabeth Smart is one of only two people who interacted with Brian David Mitchell when his guard was down. She could inform me about how he was emotionally, interpersonally, over a nine-month period and over THE nine-month period. I was able to communicate with her for approximately five hours.

Hagen: They yielded the details that the jury heard?

Welner: Yes, ma'am.

Hagen: Did you interview the defendant?

Welner: I attempted to.

Hagen: What was the date?

Welner: April 28.

Hagen: Was that videotaped?

Welner: Yes.

Hagen: Do you always?

Welner: Yes, I always tape my litigants unless there's some overriding reason in the case. My belief and objective is transparency, my belief and endeavor is it's a lot easier to videotape. I just videotaped at Guantanamo Bay. If you can videotape at Guantanamo Bay, you can videotape anywhere. I gave it to the defense, the prosecution, the court, so whatever interaction we had was clear: What happened and what happened when and what we communicated about and what when down.

Hagen: What happened when the defendant entered the room?

Welner: Literally absolutely nothing. He came into the room with eyes closed and quiet. I can't use the expression "You had me at hello" because before even hello he had his eyes closed and sat down quietly. He had his eyes shut, and was mute and eyes closed.

Hagen: What happened after he sat down?

Welner: After I told him video was running he began to sing. He sang a couple of tunes.

Hagen: Did that inform his behavior at all?

Welner: I was anticipating this as a possibility, so I brought a laptop, and I told him, "I'd like to talk with you. If you prefer to sing, I'll just work." He continued to sing, so I took out my laptop and worked. When I stopped responding to his singing and he stopped singing, I'd ask a question from time to time, and when he didn't answer I would go back to work. It was important, coming in silent and then singing. It showed me he was absolutely determined not to speak to me, or make eye contact. He would do it so I wouldn't even have the glimpse of the illusion of getting him to speak to me, but he could be quiet. We sat quietly, and so this was the morning. The afternoon, things got a little more interesting.

Hagen: Now does the interview become more stressful at some point?

Welner: I belive it did.

Hagen: How was that?

Welner: I thought [it to] be an informative decision to play the police interview of Elizabeth for him, to see what he had to say about what she had to say to police, and this was after lunch. He is staying nothing, and his eyes are closed. He could be detached, and he is meditative.

Hagen: And shall we watch the clip?

Welner: It think that is the best way.

Hagen: 113 exhibit put into evidence (interview with Mitchell by Welner)

[Video plays.]

Hagen: can we pause it for a moment? Is that your voice?

Welner: Yes.

Hagen: I don't think the jury heard that.

Welner: This is something I will often do (show video interviews from other witnesses and get their opinion on them). I ask them to tell me what I should know about this and show them the video and ask them to tell me about this. This was an opportunity for him to disagree, to clarify, to confront, to challenge. This is why I did it. And I told him, "This is what I have to consider. Please tell me about this."

Hagen: Doctor, is that anything diagnostically significant to Mr. Mitchell's example in this clip?

Welner: I notice him leering in this clip. And while he was close to the TV, he was moving closer to the TV. He was clearly pleased by her appearance in this clip. He was very attentive, um, and that was the best description that I can recall of how I experienced him, and it was a natural cartwheel for me inquiring him of his sex offenses.

Hagen: Now what happened, about sexual misconduct in the past?

Welner: He was silent. He turned his back to me, and he was silent.

Hagen: Where there other times in the interview that he was silent?

Welner: Yes, it had to be distressful for him. He was silent. There was no singing. There was no acting peculiar. He was silent, quiet and composed while being [asked] these questions. One of first songs he sang to me was — which I could hum by melody, but won't — he ended the song by shouting, "Repent! Repent, for the kingdom of heaven is at hand!" and he shouted with aggression. And I found it to be informative. It is a way of being forceful with something and not having to worry about repercussions.

Hagen: Was that a stressful point in the interview?

Welner: No. I told him that that type of thing goes on in New York City all the time, and he didn't do it again. It is effective, (what Mitchell did by shouting or singing). You are not going to get aggressive with someone who is singing hymns at you. It is a clever way to do that.

Hagen: Did you have questions prepared?

Welner: Oh, yes.

Hagen: Would he respond? Would that be helpful?

Welner: I might have been informed. He could have responded to give me the confidence and actually misleading me and put it away as being responded [to]. There were two possibilities of things that could have happened if it would have gone forward as I hoped for, and/or prepared for.

Hagen: How do you know they are being truthful?

Welner: Through collateral sources. You cannot tell whether or not someone is being truthful, to the exception of "Lie to Me" (a TV show about using body language to decipher if someone is lying). An ounce of evidence is worth a pound of expertise. I had reviewed a tremendous amount of material. I could go back and say, "I am not understanding this. If you don't have that information ..." Getting back to the scenario of forensic setting, you can hear something that may be 50% true, but enough of it takes you off track and gives you a false understanding of what you are hear. It is especially incumbent when someone is not speaking to you to fill in the blanks.

Hagen: Now before rendering an opinion this case, did you consult with other mental health professionals?

Welner: I did.

Hagen: Who were they?

Welner: Two individuals, prior to my interview with Brian David Mitchell. These individuals, I presented a case to them and asked for input in a formal oversight capacity with the expectations, in keeping with protocol of our practice, how we conduct our examination, that the — actually this is, I'll be as brief as I can. But in the following stepwise fashion after gathering information and preparing to interview Brian David Mitchell, I consulted with Eric Drogin, a forensic psychologist in Massachusetts, and Dr. David Walker, a forensic psychologist in Georgia who is now in Kentucky, who would independently consult to me and formally represent to me.

They would discipline the examination so that my inquiry would be as diligent as possible in areas I needed to explore and that my synthesis of the materials was objective and that we'd arrive at a point that their oversight would make sure that the conclusions I made were reflective of the standards of the field and give input into questions I'd be positing in the interview. After consulting on the case, I asked these consultants, what question would you want to have answered and where at in the interview? I also talked about potential witnesses. When I finally arrived at a stopping point in my work, I went back to the consultants for their oversight for objective, sufficient diligence and whether it reflected the standards of the field.

Hagen: Have you continued to consult them?

Welner: I spoke to Dr. Drogin and Walker last Saturday night anticipating that I'd be in court today.

Hagen: Have you consulted with other mental professionals?

Welner: Yes, I did so because the questions brought today are different from the

earlier stage and there's more information to present. I want to qualify the following, Drogin is board certified as a J.D. Ph.D. ... he's a trained attorney, trained J.D. psychologist because we're dealing with the interface of psychology and the law, it lends a sophistication and lends an expertise beyond what I have. It's helpful to have a perspective of a psychologist. ... Apart from that, Dr. Drogin has a considerable amount of experience as a person retained by the defense, shaped by a far greater focus of my time, I felt that would contribute to the objectivity of my examination.

Dr. Walker is a forensic psychologist. I thought I'd benefit having to answer to Dr. Walker because he's had more experience with treating sex offenders. He knows what he's doing.

[There is a discussion about the changing diagnoses in the Diagnostic and Statistics Manual of Mental Disorders.]

Hagen: Have you evaluated new evidence and continued to incorporate it ...?

Welner: Sure, I learn as you learn, always there are things that are informative. Thoughts have evolved from those teaching from this witness stand.

Hagen: Dr. Welner, did Mr. Mitchell suffer from severe mental illness?

Welner: No, he did not.

Hagen: What did they (other doctors) say?

Welner: That he was delusional.

Hagen: Were his ideas fixed?

Welner: No, they were not.

Hagen: What is your basis for [your] opinion?

Welner: The representation of the fixed false belief that it centers around a special spritual role for Brian David Mitchell. There are a number of pieces of history that led me to beilve this is not a fixed piece of belief. First of all, in his religious activities. Brian David Mitchell distributed photocopies of "Declaration of Our Faith." He did not copy the Book of Immanuel David Isaiah and give that out to other people.

Hagen: Other than for law enforcement and certain family members?

Welner: Yes. Whatever he did believe is that the "Declaration of Our Faith" was not that of another faith. He went from being a prophet to a servant in the interview with law enfocement. He went form being a prohpet to those that he was in spiritual discussions with. He wasn't represneting to them that he was one mighty and strong and that he was the Davidic king and [would] do battle with the anti-Christ. This was not a fixed false belief. His articulation is that Elizabeth Smart was kidnapped and raped because she was his wife. And they asked her to call them "Mom" and "Dad." Even away from everyone else and with privacy of faith, he was "Dad" to her. She was his daughter. She was his daughter, not his wife to others.

Hagen: Was his idea false?

Welner: It is very difficult to identify the fallacy of an idea when it embeds itself in spirituality and faith, and even more difficult when one doesn't account for culture. One might have a likelhood of reactions. But that gives us a sense that this is a fixed false idea. We are able to demonstrate that this is false, and they adhered to that idea. And no one has presented that he can't be who he says he is. Interpreting the falsity of his idea is difficult for mental health professionals, especially ... when dealing with religious beliefs.

Hagen: On top of the question of whether that belief is fixed or false, now the jury has understood the role of the DSM and diagnosis for the conclusion. Are there any other published research that has dealt with how to find out if someone is having delusion related to religion?

Welner: There is no public medical research at all where you can look at beliefs native to LDS and determinations a psychiatrist can make about whether it is delusitonal or not. That does not exist for the fundamentalist LDS communities.

Hagen: Specifically, has there been any research ... on those who claim to be one mighty and strong?

Welner: No.

Hagen: Were you able to hear Dr. Peterson's testimony?

Welner: Yes, referencing Professor Peterson's testimony. Fundamentalist LDS beliefs in that these are the last days, and one mighty and strong will arise, and the beliefs including that one mighty and strong will arise outside the church. At the same time, fundamental LDS is very respectful of alternative scripture which [speaks] for resolving apostasy and [providing] a solution for people confronting the last days. One thing I forgot: polygamy. That is a very important tenant to the fundamentalist LDS community.

Hagan: Mr. Mitchell claims that these ideas about his special role come from special revelations from God, correct?

Welner: Yes

Hagan: Is there any way you see that is different from how he receives revelations different from [his] culture or subculture?

Welner: The way Brian David Mitchell receives revelation is very much related to the culture he

is identified with.

Hagan: Do you believe he is actually receiving revelations?

Welner: I don't know. Prof. Peterson demonstrates he has ideas he characterize as revelation. Fundamentalist LDS is very encouraging of people receiving personal revelation. That aspect of Brian David Mitchell is very difficult for me to join not withstanding anything I've been exposed to — something on a very personal level.

Hagan: Did ... Sterling Allen's testimony?

Welner: Yes.

Hagan: How?

Welner: Sterling Allen has been in the context of teaching 4,000 people who identify with fundamentalist LDS teaching. He has emphasized the importance of personal revelation [to] make it easier to commune with God. He also encouraged people to develop personal scripture, [their] own history and documentation.

Hagan: How does that culture relate to [whether] the defendant is delusional?

Welner: The cultural context is such that — "Brian David Mitchell is delusional." For that, we have to consider the entire community of fundamentalist LDS to be delusional. There is great anticipation for the one mighty and strong. They are waiting for the one mighty and strong. Sterling Allen believed he might have been the one mighty and strong, and that he has met approximately 200 people who could be or think they are the one mighty and strong. [You] have a community that looks for one mighty and strong coming from outside the church establishment, ... attaches itself to this belief. The psychiatric diagnostic frame of reference does not allow us to call any of them delusional because of cultural context. If [we] call one delusional, [we] call them all delusional.

Hagan: How did Dr. Peterson characterize ...

Welner: Well-written, a lot of thought, drafted from many sources and assembled in a way that is coherent, flows, reflects a lot of work done over time, ... as someone who has a revelation and put it down into scripture.

Hagan: Did he identify as anything outside of the fundamentalist LDS?

Welner: No.

Hagan: Anything bizarre or delusional?

Welner: There is no context available to call them delusional.

Hagan: Did you consider the defendant's spiritual background?

Welner: I did.

Hagan: How is it significant to look at the defendant's connection with faith?

Welner: Influence, inspiration, choosing a life path, out of the LDS church for awhile, came back, influenced by people in his family. His period within the LDS was very encouraging. He achieved a position, and more than one position. Others in his family, his father wrote a scripture —

Hagan: Did you find any significance in the use of David Shirlson?

Welner: In the birth of Zion and others, Shirl Mitchell was referred to as an elect man of God, if through the schema of faith and observance that Brian David Mitchell took on, that he was an elect man of God. Then paying him homage through Shirlson was a source of pride and recognition that he has a family legacy. This, within fundamentalist LDS, is something identified, a special stature within a schismatic group or church. Children draw a sense of stature. Being someone's son, grandson, great-grandson — being close to someone who is an elect man of God — is significant with Brian David Mitchell. ... When he was in his adolescence he identified with his father and took on some of his ideas such as diet.

Hagan: Do you have any opinion on Shirl [being] delusional or schizophrenic?

Welner: [He is] not delusional or schizophrenic. [He has] never been treated. [He is] well-related to members of his family who say he isn't ill or needs treatment. [He is] not necessarily psychotic because his son raped Elizabeth Smart; it's a backward way of approaching psychiatric diagnosis. There is no evidence that he has a major psychiatric illness.

Hagan: Let's talk about trajectory. When [did Brian David Mitchell] begin to associate with fundamentalist beliefs?

Welner: Sometime around the late 1980s — mid to late 1980s.

Hagan: Now was that the first time [he had] been involved in a fringe religious group?

Welner: In some time earlier in his life, [he] spent time with Hari Krishna, but [I] don't know how involved or if they gave him over because had kidnapped his children and needed to escape his ex-wife and law enforcement. [He] never formally joined. [His] involvement may have been opportunistic.

Hagan: [He] associated political beliefs with fundamentalist LDS?

Welner: Yes.

Hagan: What beliefs?

Welner: Fundamentalist LDS is very commonly associated with a political ideology of a constitutional approach: anti-big government, anti-taxes, being able to separate from intrusive government, survivalist thinking, not in the way of thinking about running around with automatic weapons, but in being self-sufficient; having a vegan, natural approach to life, for a less intrusive, less complicated time; doing work of self sufficient —

Hagan: What was happening in the 1980s?

Welner: There are several sources of information that have already [been] presented in court and other pieces that have been available.

Hagan: Have [you] read of LouRee Gaylor?

Welner: Yes.

Hagan: How [do you] characterize that home atmosphere?

Welner: Perverted. If one has to grow up in an atmosphere [of] rubbing up against ... and pulling pornography out from under the bed, trying to touch, [I] don't know how else to describe [it]. With respect to the church, LouRee says he's involved. He was carrying on a very presentable appearance. [There was] no indication he was anything other than an upright, fine young man. Church and others in church ... How it was different from home: [a] very controlling atmosphere, and — certainly in the earlier years with the marriage between Wanda and Brian — chaotic. A lot of tempestuousness only resolved itself when [Wanda] became submissive and capitulated. She decided to go along to get along. There was chaos between Wanda and Brian and LouRee, and when Wanda and Brian simmered down, that instability remained for LouRee, and she eventually left the home. He was quite indebted and falling down on his financial responsibilities. A number of years [he was] unemployed and living off of other people. His previous wife, in the 1980s and early 1990s, was the continuous [worker].

Hagan: His longest marriage as well?

Welner: His marriage to wanda was the longest.

Hagan: Was that the most stable part of his life?

Welner: Inwardly and outwardly. [He had] been married three times, chaotic and short-lived. Also problems having to take responsibility. [He was] unable to manage a marriage. Part of the enduring feature of that marriage was her submitting and becoming obedient. If [she did] not become obedient, [he] would have the patina of stability, but with him, [he] wanted her to be obedient.

Hagan: At home, was he satisfied with his position in church?

Welner: He had greater aspirations.

Hagan: Did he take on any title or role?

Welner: Within church, counselor.

Hagan: At home, what [was he] called?

Welner: When it appeared that his rise within the church was not going to be as he hoped, he began to refer to himself as a prophet. This [was] in the mid to late 1980s.

Hagen: Now during the time that he was counselor in the church, did he hold the other positions?

Welner: Yes.

Hagen: Was he counselor for the bishopric, is that it?

Welner: I believe he was an ordinance worker for the temple in the mid to late 1980s, unless I am mistaking.

Hagen: Moving onto the 1990s, what was he doing in the church in the fundamentalist community?

Welner: He was becoming familiar with survivalist literature and speaking about not having to pay taxes, at the same time he remained active in the LDS Church and started going to meetings at fundamentalist LDS groups.

Hagen: He attended Sterling Allen Group?

Welner: Yes.

Hagen: Did he form that in 1992, according to the stipulation?

Welner: That is correct, yes.

Hagen: Then where did he go to at that time?

Welner: He went to Heber City.

Hagen: Where was he working at that time?

Welner: He had left OC Tanner and was working at the Historical Arts and Artifacts, working for one year. I am sorry. I need to correct myself. He was not working while in Heber City.

Hagen: Was he promoting lymphology for Dr. West?

Welner: He was. And with Dr. West — it is my understanding that while he was in Heber City he was not working for Dr. West at that time. My understanding is that in 1994 he went on to work with Mr. West at that time.

Hagen: What was his understanding of lympology?

Welner: The more he heard about it, the more it was happening to his sense of naturopathy. He was inspired by Dr. West and quickly became a very active and productive person in promoting lymphology, even better than those of the West family. He was successful in drawing in as much as $14,000 dollars a month.

Hagen: Was lymphology religious?

Welner: It was a schism that revolved around the religion, but dealt with and worked in concert with spiritual help.

Hagen: Where did Mitchell go after Heber City?

Welner: To Idaho.

Hagen: And where did he live?

Welner: It was a rejectionist community that lived off the grid and within that community there were stirrings of polygamy, how much it is not clear, but it may have been a part of people's lives there.

Hagen: Any other beliefs held there?

Welner: It was a fundamentalist LDS community, and they had a white Bible that they used as their scripture.

Hagen: Do you believe those people were all delusional?

Welner: I do not. While others don't have the same belief, it has a cultural context to it.

Hagen: How did the defendant come to leave that community?

Welner: The defendant shared writings with Mr. [Thomas] McKnight, and his suggestion to him was that he would be in conflict with those you respected in the teachings of the white Bible.

Hagen: Did Mitchell disagree with teachings of the community?

Welner: Yes.

Hagen: Did he get kicked out?

Welner: Mr. Mitchell left voluntarily. I should also add that Mitchell was behind on payments for a fifth-wheel trailer and abandoned payment.

Hagen: How does that relate?

Welner: His ability to avoid and abandon problems cannot be ignored. His movements coincide with his insolvency, with his inability to make payments. His sense to be a leader within the fundamentalist community did not look promising and because he had financial restraints, that he moved on. You can't ignore that he clearly had ambitions that clearly reflect those in the writings of the Book of Immanuel David Isaiah, and that he had discussed with McKnight and he left on his own.

Hagen: Was Mitchell viewed by McKnight as mentally ill?

Welner: No, he did not.

Hagen: How is Allyssa Landy acquainted with the defendant?

Welner: Allyssa was engaged to West while the defendant was living there in 1997-1998. This was after they came back from their journey through the land. I should say that while Mitchell was at the home he was not removed with his ability to produce revenue for the Wests. It is in that context that they were staying with the Wests at that time.

Hagen: How was Mr. Mitchell regarded in the West home?

Welner: He was regarded as strong-minded. He was related to as an elder, they would relate to him as the same stature as Dr. West, an elder living a life true to lymphology. He was a person you could go to to speak about personal issues. He was wise, knowledgeable, respectable. His revelations were adopted in the home. They followed his revelations and his directions.

Hagen: What was Dr. West's reaction to ...

Welner: Mr. Mitchell was encouraging that they join and develop a polygamous community and wanted to do it immediately. He didn't approve of the idea. According to Ms. Phillips, Dr. West expressed concerns. He had enough ties to the mainstream LDS, and that would cause a faction. Thought he was appreciative and sympathetic to the ideology, he left the home with Wanda because they couldn't resolve the issue.

Hagen: When did this revelation occur?

Welner: The claimed revelation was in November 2000. This was all happening in 1998, when he was seeking it. I should note that the place in Idaho couldn't have been the easiest place to find, but somehow Brian David Mitchell ended up in a community where that was a lifestyle for some folks, that restoration of polygamy. We're talking 1995, and five years before this claimed revelation for the reinstitution of polygamy. Jump forward to 1998, when he was trying to persuade Dr. West to take the academy of lymphology as a sect.

Hagen: Who is Julia Atkinson?

Welner: She was a Kingston.

Hagen: What is that? What is a Kingston?

Welner: A very established FLDS sect.

Hagen: What were her interactions with Brian David Mitchell?

Welner: As a fanatic. She experienced him as someone very familiar to her, his carriage and how he presented himself. She grew up with people who behaved in this way. The belief system was consistent, related to him. She perceived as a zealot.

Hagen: How did people react to copies of the Book of Immanuel David Isaiah?

Welner: Those who received copies in 2002 — Shirl, Irene, his brother, sister, brother-in-law, they experienced it as an apostasy.

Hagen: Did they suggest mental health treatment?

Welner: They did not experience it as a psychiatric problem but as an apostate.

Hagen: Do you know what Irene did?

Welner: Sent it to the stake president and to the committee of apostasy.

Hagen: Did she give it to the stake president because she though he was ill?

Welner: No, as an apostasy.

Hagen: When he grabbed his mother's arm, was this the first time he showed her threatening behavior?

Welner: No.

Hagen: What is the record of his behavior with his mother?

Welner: The record is a volatile year, threatening her and menacing her and others of the family, punctuated by periods where he was very involved and supported in life. When back in the Salt Lake City area after kidnapping his kids, he was very involved, but during the time of his second marriage when chose to give his children up to adoption, the relationship was so antagonistic that his own children — his mother would not be allowed to have contact with her own grandchildren. His level of spite, of contempt, was such that he sought to eliminate her grandchildren from her. It was another point in time when their relationship was very contentious and very bitter.

Hagen: Do you view that incident with the mother as an incident of pathological stress?

Welner: Well, here's how: Testimony about President Mecham — when confronted with concerns Mecham had about Mitchell at home, and Brian David Mitchell had a very quick-changing temper, stormed off, that is consistent with other history. When he doesn't get his way, he gets angry, gets demonstrative. That is also consistent with the history provided by him holding on to Elizabeth Smart, controlling LouRee, he put hands on and was controlling her. He was restraining his mother. She didn't want to listen to what he says. She wasn't as vulnerable as Elizabeth Smart is, as vulnerable as LouRee was, she was an old lady who could walk away when she couldn't listen to what he was saying, telling him that she was rejecting him.

Hagen: Now, what was the family's reaction to that incident? What did the mother do?

Welner: The family encouraged the mother to take out a temporary restraining order, which she did. The family did not look at getting him psychiatric help. Irene was too afraid, too gentle to tell him, "You need to get a job and take responsibility and get a job or move on." This was the last straw.

Hagen: Are you aware of the stipulations of stake president Switzer?

Welner: It was well written, but it was an apostasy.

Hagen: What did he do?

Welner: He proceeded with excommunication. He would have had him seek psychiatric help if he thought he was mentally ill.

Hagen: How did you go about trying to determine whether he really believed these ideas?

Welner: How consistent he was. Just as one would with [the] construction [of] any mental health evaluation, you look at [the] expression and see if it is contradicted.

[Evidence.]

Hagen: Prior to the kidnapping, what did you look at?

Welner: I looked at how he lived his life, and I found a number of different aspects that spoke of the insincerity of his faith.

Hagen: Could you give us a few examples?

Welner: This is a person that had spoken of a corrupt world, corrupt church and all these things. And yet there is no component of his life that is devoted to kindness. He eats at a homeless shelter, but he doesn't feed the homeless. He doesn't visit the sick, he takes advantage of the opportunity of the sick. When he was at the West's home, he looted the clothes. He doesn't have a record of helping children; there is a record of [him] raping a child. His life is remarkably barren as it relates to acts of kindness.

Hagen: Now, speak on...

Welner: I'm sorry, I'm not done. You have someone that prays but pulls pornography out in the middle of prayer. Someone that studies lymphology and health and wellness is comfortable drinking and using drugs, and someone who is so studied in healing that is respected at the naturopathic abilities. This is the same person that feeds his step-daughter a rabbit. How do these things coexist when faith is sincere? They do not. In my professional opinion, his faith is not sincere.

Hagen: Directing your attention to the robes he wore, is there evidence that was insincere?

Welner: There is ample evidence of revelations changing or being abandoned. After 9/11, a person in robes was drawing a reaction, and donations were down. Some people looking at those in robes wondered if they were Muslim. He changed clothing for the purpose of getting donations. Again, how does that jive with the notion that the Lord will provide? Tests of faith would lead to the abandonment of faith. He didn't go in robes to the nude beaches of Miami Beach, he went like Gandhi. You dress in robes in the fundamentalist LDS community, people will see that as devout. Being Jesus is good for business. Being in South Beach is a different environment. He didn't have to go in robes but still show he was something religious. They couldn't tell the difference between a Buddhist and Hindi, but if it is different enough, it is good enough. I went to school in Miami. If you are going there, you are going there for the tourists because tourists have the money. The opinion being if the revelations are abandoned for convenience, for profit, then the revelations are not sincere.

Hagen: Earlier today ... outside the courtroom, questions were asked about interactions with Kelly and whether that demonstrated sincerity of faith.

Welner: Yes, thinking about getting into — Mr. Mitchell — The available information reflects that Mr. Mitchell became involved with Kelly sometime around the early 2001, late 2000 timeframe. He had expressed to Wanda that he had a revelation that he was going to take on as a plural wife an African-American woman. He proved to be already involved with this woman.

Hagen: How do you make the inference he was already involved?

Welner: Timing as well as interviews with others.

Hagen: Did Ms. Barzee testify that Mr. Mitchell was panhandling in same area as Kelly?

Welner: Yes, correct.

Hagen: Please go on.

Welner: Wanda Barzee learned of Brian's proposal that Kelly join them as a wife. Brian was very sexually active with Kelly, and Wanda was very uncomfortable to this. Wanda, according to Brian, had the power to evoke the Law of Sarah as well as Hagar.

Hagen: What is Law of Sarah?

Welner: It allowed her to cast out a wife and that she could no longer be a part of their family. [She] didn't want her involved. [She] felt they were sexually active, felt excluded and rejected. [She] evoked the Law of Sarah.

Hagen: What happened?

Welner: Brian David Mitchell went back to Kelly and didn't tell Wanda. When she found out he went back to Kelly, and she found out and challenged him to point of threatening to leave, but he went back to Kelly. Anyway, that is not faith.

Hagen: [Why did it end?]

Welner: [I] don't have evidence who ended it, but when he went back to Kelly she was sexually active with someone else, and Brian David Mitchell went back to Wanda.

Hagen: [question inaudible]

Welner: The evidence demonstrates that Brian David Mitchell's account of the kidnapping has changed in several ways. He has represented that Elizabeth came voluntarily. At the same time, he volunteered to Wanda she would have to be taken by force. In many ways the account has changed according to who he is telling the story to and the context.

Hagen: The night he hid behind the bush, how does that speak to the issue?

Welner: Well, police were coming, and he hid behind a bush, and according to Elizabeth's testimony told her to hide behind bush, saying, "If this work is true, they won't see us." First of all, he went behind a bush. He didn't trust his faith to continue. He offered a prayer at the time he could be discovered. It was only days later that searchers were looking for her, and Elizabeth Smart heard her name being called, and he gained her silence. But he didn't gain her silence by saying, "If this work be true, let them not see us," but by threatening to kill her. This is reflective of his insincerity.

Hagen: What is your opinion about his sincerity with [the] sexual exploitation of Elizabeth Smart?

Welner: He communicated with her in vulgar terms that were not at all spiritual, divine, holy. He related to her in sexually degraded ways and he justified [it] to her by saying that she needed to be low to the dust. [He] used porn as part of that to say she needed to be low to the dust, held the porn out and referred to a woman — whom he was showing and forcing to degrade Elizabeth [with] — as "flowering open," not low to the dust, not with the dismissive contemptuousness you would expect if bringing [someone] low to dust but as a model to bring low to dust. And the porn was being used as a catalyst to rape Elizabeth, as was the vulgarity. And the relentless rape of Elizabeth Smart was not done in the context of religion but of personal gratification. Not holy, not religious.

Hagen: [A] blessing to manipulate Wanda?

Welner: The blessings were timed in such a way that if Wanda was unable to cope with the pain of his repeated rape of Elizabeth Smart in her presence and her sense of rejection, the one way that she could be calmed was for Brian David Mitchell to manipulate her sense that her spiritual piety equated with how much she could be obedient with him. He was able to tie in with her the idea that how pious a person she was, how close she was to God was how close she could follow his revelations. If he didn't listen to one of his own revelations, he could always come back, always repent. But for Wanda, she would be eternally damned and [there was] no coming back. [She] felt she had to [have the] highest form of her piety. In order to placate her, quiet her, to get her to go along with what was happening, he used these revelations because of how close she was, so close to god. One of those revelations was a calendar when they would have sex: when Wanda would have sex, when Elizabeth would. Brian did not follow the calendar, though it was a revelation. When she confronted him when he tried to have sex on a day that wasn't scheduled, he said, "Wanda will never know." There are numerous examples studded all over their history of insincerity of faith and manipulation. He did not use revelations with her and used force with her.

Hagen: [I'd] like to move on to after the defendant's arrest, regarding his behaviors after his arrest. [Inaudible].

Welner: When Brian David Mitchell was interviewed by law enforcement, [his] account was very different from what [he] represented and his faith. He claimed in his interview that God never told him to have sex with Elizabeth, claimed he was a servant, not a prophet, and there are stark inconsistencies with his faith — whatever he believed, not believing at that time.

Hagen: Significant writings in the Book of Immanuel David Isaiah?

Welner: In that interrogation, law enforcement confronted Mitchell with having had sex with a little girl, having forced sex with a little girl. In that interrogation he said she was 18, but in his revelation cited the importance of a 14-year-old. He abandoned it in the face of law enforcement. During that interview, confronted with kidnapping, breaking into the Smart home, violating Elizabeth, raping her and other elements of accused crimes, having met with people who advocated for [inaudible], there's now [awareness] of different features, charges against him. Brian David Mitchell drew up an amendment to book of Immanuel David Isaiah, drawing up defenses: No weapon was used, Elizabeth came voluntarily to be his wife, again addressing each of the points in that interview and contradicting revelations he had at other times.

Hagen: And particularly the assertions to Wanda that he had revelations to take girls 12-to-14-years-old by force?

Welner: Absolutely, that contradicted that he had to take Elizabeth by force [if the Lord would provide.]

Hagen: How did he spend time at the Utah State Hospital?

Welner: He exercised, read a lot, watched a lot of movies. He spent time alone in his room. When John, the child sex offender, was there he spent a lot of time with him and did activities.

Hagen: Were they LDS-themed activities?

Welner: They were not.

Hagen: What about the movies he watched. Were they LDS?

Welner: They were not.

Hagen: [Referring to a list of movies Mitchell watched.] Did he request these movies?

Welner: Several of them.

Hagen: Let's talk about the books he read. Was he checking out books on scriptural theology?

Welner: No, he was not, sci fi books and Jane Austen. His reading was really to read a lot of different kind of books.

Hagen: He was involved in a variety of games there and became competitive in chess. Is that significant?

Welner: It is. He doesn't have schizophrenia. People say he had probably earlier in life. He's in his 50's now. We would be talking about 35 years' history of the effects of schizophrenia. One thing that is difficult is thinking in the abstract and adjusting to new circumstances. What does a chess player do? Adjusts to circumstances and adjusts thinking. He learned to play chess at the Utah State Hospital and he became competitive.

Hagen: According to the staff at Utah State Hospital did the defendant appear to be naive?

Welner: No, no one experienced him to be that way. Many found him to be interesting to talk to. He wasn't bumbling. He described books with a lot of insight. A concrete thinking would not enable the level of abstract analysis to the kind of discussions he was having. They were too rich, too substantive.

Hagen: Have you heard the testimony of Dr. [Paul] Whitehead and Porter, did they see him this way?

Welner: They did not, according to their notes.

Hagen: There was a patient named John. Did they share any cultural similarities?

Welner: They were fundamentalist LDS. Yes, they were both rejectionists. They were both identified with lifestyles of fundamentalists. And, if I may, just for a moment to bring Sterling Allen here for a moment, this is what makes it so hard to buy this "one mighty and strong" idea. The people committed to "one mighty and strong" coming to rescue the church is seen as being an outsider and they themselves are outsiders and rejected. John identified with the ideology of commonality and spirituality.

Hagen: Does that evidence of the relationship John had on the defendant impact him whether or not he was psychotic?

Welner: Oh, yes, I will explain. If a person is psychotic, or their speech is disorganized, you don't fix it with therapy, you fix it with medication. Some people may have a more steady course and decline. It may not be as pronounced, but certainly they aren't going to get better without medication. But Mitchell's condition improved after a relationship of talking with John. But I don't think John C. was necessarily a talented psychotherapist. What happens if someone who is perceived to be psychotic and doesn't change with medication, then they may be, but if their condition improves through relationships like the rest of us, then maybe he is more alike than we thought.

Hagen: When would an encapsulated belief come to surface?

Welner: When someone had the delusion that relates to a narrow idea, which is theoretically capable. In so long as you don't encroach upon it, then they will be unmistakable from someone that doesn't have a delusion, and that is correct in my professional opinion. That person may be able to wall it off for superficial interaction, but over time if that person is trying to wall it off, it won't work. When that area is encroached upon, it is unmistakable and psychotic. In the story of Brian David Mitchell there is ample history. For example, Jeremy Clark, on religion — and not in the abstract, the LDS Church and beliefs in the Book of Mormon — is engaged front and center in 2003. And not only did he carry himself rationally, but he could con the Kemp family that he was [talking to] to kidnap their daughter. While one can have encapsulated delusion, you have the Clarks and the Kemps and the number of other people who had ongoing contact and extended contact that took in religious things with Brian David Mitchell, and they were extremely rational.

Hagen: Dr. Wellner you had just described the evidence whether he had a delusion. Based on all that testimony, was he delusional?

Welner: In my professional opinion, he was not.

Hagen: Are there any other kinds of diagnoses that explain his behavior at the time?

Welner: Yes.

Hagen: What are they?

Welner: Three: number one, pedophilia, non-exclusive type. Number two, narcissistic personality disorder. Number three, antisocial personality disorder noting indications of psychopathy.

Hagen: Does the 1970 arrest support pedophilia?

Welner: It does.

Hagen: What for?

Welner: Arrest for sexual abuse of an 8-year-old.

Hagen: How old was Mr. Mitchell?

Welner: He was 16.

Hagen: Does the stipulation of Rebecca Woodridge?

Welner: It does.

Hagen: What does it [allege]?

Welner: Molesting her.

Hagen: Heidi Woodridge?

Welner: Yes.

Hagen: What testimony?

Welner: Brian David Mitchell was fondling himself and taking photographs while she was bathing.

Hagen: LouRee Gaylor?

Welner: Brian David Mitchell was grooming her into a sexual [inaudible].

Hagen: Elizabeth Smart?

Welner: Yes.

Hagen: In what ways?

Welner: He repeatedly raped her while she was prepubescent.

Hagen: His search for a 10- to 14-year-old girl? Does that support the diagnosis?

Welner: Yes, it does.

Hagen: What is co-morbidity?

Welner: It refers to when a person has one condition and has other conditions at the same time, which occur at the same time as pedophilia.

Hagen: Is there research that shows co-morbidity with pedophilia and delusion and schizophrenia?

Welner: Delusional and schizophrenia are very rare with pedophilia. Only 2.2 percent of those who are diagnosed with pedophilia have delusional disorder or schizophrenia combined.

Hagen: Is it common for pedophilia to occur alongside other conditions?

Welner: [It's] much more common to occur alongside other conditions.

Hagen: What about psychopathy?

Welner: It is much more common for pedophilia to be associated with psychopathy and antisocial personality disorder. The co-morbidity of pedophilia with antisocial is 22 percent, in contrast with co-morbidity of schizophrenia and delusion — and I forgot to add, other mental conditions — is no more than 2.2 percent.

Hagen: Why look into this?

Welner: Elizabeth Smart. It takes a prepubescent child who was raped and raped repeatedly. Someone kidnapped her in 2002 after he positioned himself to kidnap her and manipulate his way into the Smart home on a pretense to see where [she] lived, because [he was] stalking other people as a pedophile.

Hagen: Before your evaluation, had any other evaluator looked into pedophilia?

Welner: No.

Hagen: You heard testimony about Dr. Whitehead doing word searches in state hospital records?

Welner: Yes.

Hagen: What time frame was he there?

Welner: Three years.

Hagen: How long in Dr. DeMier's facility?

Welner: Several months.

Hagen: How often was pedophilia mentioned?

Welner: Never. Not once.

Hagen: No evidence. No doctor at the Utah State Hospital or Dr. DeMier talked to Brian David Mitchell about his pedophilia. ... You heard evidence that he wanted her to be malleable?

Welner: Yes.

Hagen: Would a malleable 10- to-14-year-old girl be more appealing to a pedophile?

Welner: Yes.

Hagen: Do you consider this crime to be a high risk for a sex offense?

Welner: This crime has many features common with kidnapping, common with rape with someone who has no psychotic symptoms at all. It has features that some ... he did what he could to minimize risk.

Hagen: What are cognitive distortions?

Welner: The way an offender shapes the world. One, he manages impressions as well as social desirability.

Hagen: How common are cognitive distortions in sex offenders?

Welner: They are employed usually by sex offenders. The frequency for each offender varies. The goal is to manage the impression of others, and if it is not successful, then it is managed, and the offender shifts, and the story shifts. It is entirely along the lines of the way cognitive distortion [is] used to affect impression management.

Hagen: Is someone with cognitive distortion considered psychotic?

Welner: No, it is a byproduct of how someone manages their world. There are five beliefs that underlie cognitive distortion. One, viewing children as sexual beings. Two, denial of harm, denying that the child is being harmed. Three, that it is a dangerous word, and children need to be put in their place. Four, an entitlement for the offender to be the one to put them in their place. Five, the sex offender cannot control urges he has because is only human. We have seen in some of his representations, his entitlement and his view of the world. It is apocalyptic. It is not religious, it is very typical of how a sex offender would act.

Hagen: Is there research of clergy that relates to sex offenders?

Welner: Yes, there is. I sensed a parallel to the rhetoric of Brian David Mitchell, and I wondered about how priests and others were implicated.

Hagen: What did you see?

Welner: Clergy, in communication with children, talk about their closeness to God and talk how they want them to have this. They are not delusional. They envelope the children from a position of authority and closeness of God to continue to exploit children.

[Exhibit 115 is received.]

Hagen: Can you give example of Elizabeth Smart's testimony, how he behaves to these cognitive distortions?

Welner: Elizabeth said if she refuses him, she would be the most miserable woman in the world, that she was chosen by God. If he is chosen by god. That her parents are heartbroken, but [he] knew that they were in good hands. Offense-minimizing beliefs. There are classifications [that] are employed by a sex offender in a very manageable way. What is going on is a grooming and a constant compunction of Elizabeth Smart, who is repulsed and disgusted for what she would have to do. The revelation has said, "You need to take care of my needs," so beliefs justify acts. Now, Elizabeth Smart may have been skeptical, where Wanda wasn't. But he tries it on to see if it would work. It may be a psychiatrist, a family member, or law enforcement. ... If it is a family member then he will do things to reduce guilt. "She had glorious experience." What is that? Minimizing guilt, denying harm.

Hagen: You talk about examples of what he tried on with Miss Smart, other evidence in the Book of Immanuel David Isaiah?

Welner: Yes, there were cognitive distortions when Mitchell was speaking to law enforcement. He is no longer having sex with a minor if, in God's eyes, she was 18. I spoke earlier how there were contradictions — contradictions and incompatibilities that happen all the time.

Hagen: Let's turn to your diagnosis of narcissistic personality disorder, does he meet criteria do you believe?

Welner: I do.

Hagen: Looking at that criteria, what items?

Welner: In my professional opinion, a grandiose sense of self-importance, his reputation as "one mighty and strong." And that certainly doesn't parallel his religious standing. Even sexually, he represented that — Immanuel's pride; that the officer liked what she saw, intellectually, spiritually and sexually.

Hagen: Any other criteria he meets?

Welner: A lot of testimony provides for a sense of entitlement, item 5. Item 6, taking advantage of others. Testimony of the Wests and Irene and about others whom he took advantage of, the Chestnuts, not cleaning, not contributing. Lacking empathy, not identifying with feelings of others. There's evidence to that end, and others who spent time talking with him are impressed by the arrogant attitude he gave. The Utah State folks gave testimony, as well as members of his family.

Hagen: Is narcissism a severe mental illness?

Welner: No, personality disorders are ways that they interact with the outside world and how they relate. Brian David Mitchell derives some psychological benefit from saying he is a religious leader. That is his personality style of relating to rest of the world but not a severe mental illness.

Hagen: Antisocial disorder, ex. 106, what criteria does he meet?

Welner: Failure to conform to, antisocial personality disorder is met by three or more of the following conduct disorders. Looking at his adult life, while only three are required, failure to conform to social norms by repeatedly committing acts that are grounds for arrest — kidnapping, rape, burglarizing — he has over time repeatedly violated social norms. Deceitfulness, as indicated by lying and use of aliases and conning others for personal pleasure or gain. This is a man for whom large swaths of life are not available. These are the aliases we know about.

Hagen: What is the next item he meets?

Welner: Reckless disregard for oneself and others. Like LouRee. Brian David Mitchell was arrested and essentially Elizabeth Smart was left to starve in California — along this journey if it wasn't enough to be repeatedly raped, underfed, undernourished, undersheltered, to risk exposure to elements, as was Wanda Barzee. One quick point, in the journey through the land, when they sojourned, there was no evidence they put themselves in a risky situation in Florida. That's not the evidence of risk but sums up another aspect: failure to sustain work. They stopped paying taxes and child support, he abandoned his own children and abused children. He tried to reconcile that the family was behind them, having a relationship, and even then he abandoned them again. A lack of responsibility. A lack of remorse. He has no remorse for what he has done to Elizabeth Smart, no evidence for remorse to others or others to whom he had been irresponsible or otherwise violated.

Hagen: Go beyond antisocial disorder. What do you point to for that evidence?

Welner: He's a bad boy just for the sake of making mayhem. There's a record of him being truant, bullying, fighting. That was contributing to my conclusion he had misconduct disorder.

Hagen: Is antisocial disorder a severe mental disorder?

Welner: No, it is not.

Hagen: Go back to 106, you said he satisfied 1, 5, 6 and 7. Was there another criteria? Was that No. 9?

Welner: Yes, No. 9. I think a case can be made for other criteria, he requires excessive admiration. In a community where he can't have supremacy that he would rather move on than not to achieve that fealty from others. Even beyond the criteria I mentioned there is some evidence, and maybe strong evidence, there is others.

Hagen: Is psychopathy mentioned?

Welner: It is a quality with many aspects in common and is subsumed in a classification of antisocial personality disorder.

Hagen: How is it assessed?

Welner: The psychopathy checklist is revised.

Hagen: Is there a score sheet?

Welner: Yes, there is. There are 20 qualities assessed on checklists attributed to psychopathy.

Hagen: Move for entering of exhibit 120.

Judge Dale Kimball: 120 is received into evidence.

Hagen: Let's do half of it at a time, Dr. Welner, if you would. Which items do you find to be most prominent in Brian David Mitchell.

Welner: Yes, as you can see from possible ratings, no/absent; 1, maybe; 2, yes present; or x, omit if not enough information, I think there is enough information for him to have glibness. The way he carried himself like a matador and parried them off and suffocated the interview, others describe him as glib, such as Elizabeth Smart.

Hagen: What is the next criteria?

Welner: Grandiose sense of self-worth.

Hagen: Next?

Welner: Need for stimulation and proneness for boredom, I said no rather than omit.

Hagen: What about item 4, for pathological lying?

Welner: I've touched on it before, he's effectively misleading. You actually train people in such a way they are unaware of it and never ask questions and are completely comfortable with it, like the Salt Lake City officer in the library. But to know Brian David Mitchell is to be fooled by Brian David Mitchell. He can fool Wanda, can fool an experienced Salt Lake City homicide detective. He's capable of redirecting individuals so capably that they are unable to discern they are being manipulated. Welner: Again, I think we have heard a staggering [amount of] information about his manipulative nature, and he is.

Hagen: Lack of remorse and guilt?

Welner: He had not demonstrated remorse or guilt in how he has dealt with other people.

Hagen: What is shallow effect?

Welner: He has several kids, his emotion is shallow. What I mentioned about his kids, it is representative of how he has related to people in his life. If there is something he can get from them, he connects, but just as he goes off the grid.

Hagen: And to be callous and lack empathy?

Welner: And there is [the] example of being a sadist for a really long time. To kidnap children from their mother and not tell them where they were. He attempted to cut his mother off from his children. How suppressive and dominating he was. The testimony we have heard about the mice and exploiting his wife. With LouRee, where he fed the rabbit. And Elizabeth waking up in her own vomit, that is right in line with sadism. I think that [if] Brian David Mitchell can take something and have it free, he will take it. And that is consistent [with a] parasitic lifestyle.

Hagen: What about promiscuous sexual behavior?

Welner: His imploding relationship with Wanda and Kelly and the crime are consistent with promiscuous sexual behavior.

Hagen: What about No. 13 lack of realistic long term goals?

Welner: There wasn't even a goal for a second. It was just about kidnapping and raping Elizabeth.

Hagen: What is the next criteria?

Welner: Irresponsibility. I should add that there is especially strong evidence for his irresponsibility — the deadbeating the bills and walking way from things.

Hagen: Does he fail to accept responsibility for his own actions?

Welner: Yes, absolutely.

Hagen: What about juvenile delinquency?

Welner: He meets that criteria based on what he did when he was 16 years old.

Hagen: Why is it significant that you can quantify Brian David Mitchell as a psychopath?

Welner: There are many features that are unusual to Brian David Mitchell. First of all he, is a pedophile. That has to be front and center. Anything that doesn't engage that is unrealistic — is a counterfeit analysis.

Hagen: Putting that aside, why is this pedophile not like others? Is it his robes?

Welner: No, [he is] just like others. He is a sadist. He is quite manipulative, although there are others that may have lived more manipulative. Nothing captures exceptional sadism like psychopathy. I think each of these diagnoses are relevant. The point being they're all qualities to which narcissists [inaudible]. Pedophilia is pedophilia. His desire to degrade Elizabeth Smart, in terms of his other qualities that made her experience so horrible, it speaks more to psychopathy.

Hagen: Doctor, you mentioned Dr. Gardner, his diagnosis. Were antisoical, narcissistic and pedophilia fully consistent with you?

Welner: Yes.

Hagen: Do psychopaths do peculiar things?

Welner: Yes.

Hagen: Do they do bizarre things?

Welner: Yes.

Hagen: Is psychopathy a major mental illness?

Welner: No. If I answered yes, I'd fail my boards.

Hagen: Pedophilia, narcissistic and antisocial and psychopathy — was he suffering from major mental disorders?

Welner: No, he was not.

Hagen: Thank you, your honor.

[Defense attorney Wendy Lewis begins cross-examination of Welner.]

Lewis: You were retained by — you said $425,000 a year, that was your discounted rate. You've spent approximately 1,600 hours on this, does that include what your daily rate is, $5,000 on this? How many days have you testified?

Welner: This is my only day. I testified 2 1/2 previous days.

Lewis: Isn't it true, Dr. Welner, you have billed $748,465?

Welner: Yes. I haven't checked my billing statement. Thank you for doing the tabulation.

Lewis: Now that doesn't include things like expenses does it?

Welner: No. I don't think it does.

Lewis: Airfare, food?

Welner: Food I don't bill. I try to bill myself, airfare yes, but no travel time. The only expense is the airfare and the hotel. I'm staying very close to the court.

Lewis: Are you aware that Dr. Gardner was paid less than $100,000?

Welner: Didn't ask.

Lewis: Are you aware he put in well over 1,600 hours?

Welner: I was not aware.

Lewis: Dr. Gardner and Dr. DeMier were not paid anything to testify. Were you aware of that?

Welner: I was aware of that.

Lewis: Are you aware that Dr. Deets did an interview with Ms. Smart approximately 2-3 days after her recovery?

Welner: Yes.

Lewis: You chose to conduct another interview?

Welner: Yes.

Lewis: What could you learn six years after?

Welner: It was a series of many questions which I got part of the way through. I was learning about a Brian Mitchell who was open and forthcoming. He might have been misleading and informative on others.

Lewis: What could you learn that you weren't able to learn three days after her rescue? She did testify about all those things at that time.

Welner: I had a number of questions that had not yet been posed about her relatedness to him; how it compared to Wanda's relatedness; Brian Mitchell's sexuality; the parameters of his faith and how sincere and how irrational they were. Even at the end of that interview there were many more.

Lewis: You believe Dr. Deets did not cover all that material?

Welner: He did not. It was useful and I appreciated it. It inspired other questions I would not have thought of if I hadn't seen that interview.

Lewis: You were consulted in July 2008?

Welner: Yes.

Lewis: And received in late summer or early fall records regarding this case?

Welner: I remember reading something in late summer with Richard Lambert. I recall it being September 2008.

Lewis: In November 2008, there was an evaluation by the Bureau of Prisons the government requested.

Welner: I am aware of that.

Lewis: At the same time as that he was being requestioned. There was a $26,250 retainer.

Welner: If you're doing that math. I would have done that work at that time.

Lewis: Would it help if you saw your billing statement?

Welner: Yes.

Lewis: On the top it says $26,250.

Welner: It means what I was approved for, with the U.S. Attorney's Office. I have worked for the federal government, federal defendants. When working with agencies I'm not paid anything up front, they approve a certain amount and then proceed. The first invoice was at $10,000.

Lewis: And that was out of $26,250?

Welner: Yes.

Lewis: And eventually you would have gotten that money?

Welner: Yes, ma'am.

Welner: This was after the motion by the government that Dr. DeMier was the best suited.

[Objection from the prosecution.]

Judge: Sustained.

Lewis: It stated the Bureau of Prisons was best suited, not Dr. DeMier. Now No. 2 there, Dr. Welner, want to read that out loud?

[Reads document that says federal prison is the best place and that utilizing outside experts will incur extra costs.]

Lewis: This was the beginning of November 2008. Are you aware that Mr. Mitchell arrived at the hospital in 2008? On Dec. 11 you requested approval for an additional $30,000.

Welner: That was probably the government. The forensic panel does not submit approvals. That was an internal bureaucratic measure.

Lewis: Dr. DeMier submitted a report on Feb. 13, 2009, that he was schizophrenic. In January 2009, either you requested or the government requested another $40,000 was added to your bill, correct?

Welner: No. We invoiced the government $10,000 in January 2008 and in February $7,000 invoiced. I have very little connection to the approval process.

Lewis: You don't know what that $40,000 was for?

Welner: It's for work.

Lewis: I understand that you don't do your own billing.

Welner: We have an administrator to take care of billing. I'm not involved in that sort of thing. The administrator takes it and forwards it along, in my they experience have their own internal discussions to approve and we're not (inaudible).

Lewis: By January 22, there had been approval to pay for $96,286?

Welner: It was 86, but yes.

Lewis: I think you testified that the forensic panel is like a private practice.

Welner: It is in the sense of billing.

Lewis: So it [the forensic panel] is a group of doctors that you stated that make up other jobs but are also a member of your panel. And they do consultation for the panel?

Welner: Yes, ma'am.

Lewis: You founded it in 1998?

Welner: Yes ma'am.

Lewis: Dr. Walker and Drogin charged this on a rate for this case?

Welner: Yes.

Lewis: The forensic panel doesn't charge less than them does it?

Welner: The panel charges $425 an hour, and they charged $250 for Drogin for his work.

Lewis: And you own the panel, correct?

Welner: Correct. I own the forensic panel, and I pay the bills.

Lewis: And the money went back to the forensic panel?

Welner: Yes.

Lewis: And you own it?

Welner: I pay the taxes and everything. It has overhead, and in the end, if the profits ... are over what the overhead [is], that money would come back to the panel.

Lewis: Do you think the $748,000 includes the part of the money Dr. Drogin and Walker billed?

Welner: It is possible. But their amount is a fraction of what I bill.

Lewis: So you may have made well over the $748,000?

Welner: Well, it depends on how long you have me on cross-examination.

Lewis: Well, for the tax payers, I will try to keep it a little bit shorter.

Welner: I am sure the tax payers will thank you.

Lewis: Now you have made me lose my place. Give me a second.

Welner: That is how the forensic panel works. It doesn't seek to take over people's lives, and if you don't pay people for their time, then you don't get the best of their time. I don't doubt their ability, but they consult other doctors.

Lewis: Do they?

Welner: They expect to be compensated for their time.

Lewis: So these two doctors reviewed your work and gave you feedback?

Welner: Yes ma'am. Actually three, Dr. First was also involved.

Lewis: Oh he got paid, too? Is he also a member of the panel?

Welner: I mentioned some things to him last night. Yes, he is also a member of the panel.

Lewis: So since he is a member of the panel, the government will get charged $425 for the time you spoke with him last night?

Welner: Actually, I spoke with him for a half hour, so I believe they will be billed for $212 per hour.

Lewis: OK. When someone is an independent consultant, and their job is to review your work, what does that mean exactly? What kind of input do they give you?

Welner: They are expected to be critical and address objectivity of work, diligence, and if it reflects the standards of the field. We talked about distinction of psychopathy and scoring and the relationship of pedophilia with different diagnoses. These are the kind of benefits that [a] colleague was familiar with in their own orthodoxy, adhering to [the] standards of the field. Say I'm going to score him as a "2" if he's irresponsible.

Lewis: There's comments on the side. It looks like the initials there, it appears [to be] Dr. Drogin.

Welner: Yes, ma'am.

Lewis: Are these the sorts of comments that your independent consultors give you?

Welner: It depends on the individual. [They] have the wherewithal and latitude to make comments.You've given me 16 pages. In these 16 pages [he] has put in 19 comments here. The nature of the comments are they are encouraged to communicate however they see fit. This was work that was done on a report I have done.

Lewis: In your critical oversight to add "and" into that sentence. Or that maybe the word "evaluator" instead of "examination."

Welner: He has the latitude to say to me anything.

Lewis: None of these are substantive.

Welner: I [wouldn't] say none of these are substantive, but adding "and" is not. I don't think that anybody wants to go through 205 pages of consultants' comments ...

Lewis: Again, saying "has" instead of "have."

Welner: I beg your patience it's hard to read this. "With" instead of "in."

Lewis: I understand it's hard to see. If not for my new bifocal contacts ...

Welner: It's pretty small print, and I need a light up here a lot more than I need a jug of water.

Lewis: This is not about the content of the report — this is proofreading.

Welner: Dr. Drogin gave a lot of substantive input. He provided his effort when constructing interview questions, remained in touch when formulating my opinion. Dr. Drogin has an eye for detail exacting enough to change a random word here or there that shows he gives a darn, and I'm grateful for his input working on this case. [It's] what I'd expect from him, what one would expect from one of the top forensic psychiatrists on the panel. There are some that are substantive and some that are editorial. Can you imagine getting 60, 70 or 80 comments and being on deadline — "Oh, my goodness. I've gotten all this feedback." They are encouraged to speak up about everything and make their voice known. Dr. Drogin is opinionated. I'm glad he [is]. ... Wouldn't you want to read a report that has better grammar?

Lewis: Yes, but I have a secretary that does that. When were they involved?

Welner: They were involved in the spring.

Lewis: The were involved in the entire evaluation process?

Welner: Yes.

Lewis: By the time they received the reports you had all agreed on the conclusion?

Welner: No, the conclusion of the report is up to the primary examiner. The work is objective. Bias has been vetted from a report if it's there, subtle or not subtle, and that the level of diligence the work needs has been done. That's the responsibility. There may be certain instances in which there are debatable points, and consultants may not agree with conclusions, but there is support for why a conclusion should be made. In this case, that was not an issue in the pedophilia diagnosis certainly, but certain areas that there were discussions —

Lewis: Let's move on. You're not a member of the American Medical Association, are you?

Welner: I'm not.

Lewis: How many years have you managed patients on a day-to-day basis?

Welner: Three years.

Lewis: On a daily basis?

Welner: I was there 9 to 4, 8:30 to 4.

Lewis: Never managed patients 24/7 like Dr. Whitehead and Dr. DeMier?

Welner: They work 24/7?!

Lewis: Yes.

Welner: Really?

Lewis: Yes. They are on call 24-7, at least. I'm sure they have to sleep.

Welner: I worked a daytime shift.

Lewis: You didn't speak to all the nurses and all the techs who worked with Mr. Mitchell, correct?

Welner: I did not.

Lewis: You did not speak with Shirley Branigan did you.

Welner: No.

Lewis: She was one of the two main day nurses. You don't think she was important?

Welner: You're the defense attorney and could have called her as witness, and I could have learned from her. I gave a very long list. It may just be that agents were at the hospital on Wednesday, and she was off on Wednesday. I have a large list, and I followed up with a select number. There were quite a number I would have like to [have] interviewed. You can only do what you have time for, and there were people I called. They called back. We phone-tagged. How the FBI and U.S. Attorney structured the interview, I have no idea.

Lewis: You didn't speak to Debbie Williams, on the floor full-time. [Inaudible] majority of notes, you did not speak to her?

Welner: No. I don't recall seeing her name in the chart, actually.

Lewis: You didn't conduct those interviews, others did.

Welner: I interviewed [Inaudible]. Did much later. I didn't have time to do them sooner. I made recommendations for questions as a core for the attorneys, and the FBI agents sat down with staff and asked these questions about any kinds of signs and symptoms for these conditions. I can't possibly expect the FBI to have the psychiatric expertise needed, so I asked them to ask questions.

Lewis: Are you aware that all the others interviewed their collateral sources directly?

Welner: No, not true. I conducted 58 on my own. 30 individuals who were interviewed by the FBI —

Lewis: You were the only one to use the FBI?

Welner: I don't know that.

Lewis: You didn't contact Dr. Whitehead prior to submitting [your] diagnosis. Why not?

Welner: I think he made his opinions clear in the chart and documented [them] well. Paraprofessionals did not contact [him]. I called him for the same reason that Dr. DeMier called him. I had a couple of factual questions, and he responded as best he could.

Lewis: But that was after the diagnosis was done and given to the government.

Welner: I had given it to the court but before I testified in another matter. I asked about a notation in the chart, "wanting help escaping." He thought Mitchell was joking, and I called him because I took it seriously, and he gave me his clarification about [how] he viewed it and how he sized it up. I did not find documentation so he could clarify it.

Lewis: Two questions. First off, you spent approximately 15 minutes talking to Dr. Whitehead?

Welner: Yes, maybe longer.

Lewis: Did you hear Dr. Porter and Whitehead testify?

Welner: No, but I read their transcript.

Lewis: They said they thought he was serious in their testimony, are you aware of that?

Welner: I appreciate their ...

Lewis: You own an Internet magazine, known as the Forensic Echo?

Welner: It was the Forensic Echo and the forensic panel letter, and it was archived online in 2001.

Lewis: This isn't a science journal is it?

Welner: It is a magazine.

Lewis: The majority of your published works listed on your CV are published in this magazine, are they not?

Welner: Yes, they are works I wanted to see in there, and as editor in chief want to see the magazine do well.

Lewis: Don't others usually only put published works on your CV that are in scientific peer-reviewed journals?

Welner: No, that is not my experience.

Lewis: I want to go through more detail on your diagnosis. Let's start with antisocial personality disorder.

Welner: Yes.

Lewis: These are the items that you relied on, was a report prepared by Dr. Thomas in 1970.

Welner: Yes.

Lewis: You recognize this as Dr. Thomas' report?

Welner: I do.

Lewis: Reaching your diagnosis, do you believe that Dr. Thomas referred to Brian as highly mature, [she went back and forth on mature and manipulative as she restated the question] but anti-social?

Welner: I would have to see my record of what I said.

(Lewis hands a copy of a portion of Welner's report.)

Lewis: Do you recognize that?

Welner: Yes, it is from my report.

Lewis: Did you rely on it, in part of arriving at your diagnosis, that Dr. Thomas said that Brian was highly mature, but highly antisocial? Does it say that on the [report]? Could you show me on report where that comes from?

Welner: I don't see that in my report.

Lewis: So it is not there?

Welner: Well, I am looking for it, but there is something about the maturity, and there is a dramatic...

Lewis: We will get to that, but you misquoted her and you are recognizing that?

Welner: I believe I may have. I was quoting from her, but I am not sure where I got that information from at this time. I cannot find that quote in this report.

Lewis: [Reading a portion of Welner's report.] "He is very anti-social" [That statement is not in Dr. Thomas' report.]

Welner: I may have paraphrased, and I see that in my report I may have used quotation marks in my report erroneously.

Lewis: I am looking at page 3, she (Dr. Thomas) says his profile on the justice inventory, are you aware of it?

Welner: A little bit, yes.

Lewis: So his profile on the justice inventory suggested only one elevated area on the asocial index. The asocial index is not the same as antisocial, are you aware of that?

Welner: It's withdrawn. It doesn't refer to antisocial, it refers to withdrawn.

Lewis: Are you aware that the justice test looks at a juvenile in a number of different areas?

Welner: I am.

Lewis: And the justice index is looked at for juveniles to be put in the system or not?

Welner: I don't know how much power is given to the justice [index], its impact on the system. That part I'm just not aware of.

Lewis: Is it true that she also says that there is sufficient evidence he withdraws to the point where he is almost autistic?

Welner: On page three?

Lewis: Yes.

Welner: Yes, I've found it. Almost autistic or he demonstrates highly explosive behavior.

Lewis: Now if you turn back to the fourth to the last page, which is where Dr. Thomas lists her actual diagnosis, behavioral disorder of adolescence with some paranoid tendencies.

Welner: Yes

Lewis: She refers to the DSM II. Are you familiar with it?

Welner: I am only familiar with the withdrawal reaction for DSM II because it's been obsolete for 30 years.

Lewis: Section 308 of the DSM II. Are you familiar with this section as a disorder by seclusiveness, detachedness, shyness, inability to form close personal relationships, are not schizophrenic but have not yet shown schizoid.

Welner: [I am] aware of that.

Lewis: Isn't it fair that she is diagnosing him as prepsychotic?

Welner: No, that it was the antithesis of being —

Lewis: You're not answering the question. In 1970, Dr. Thomas' diagnosis is that his personality had not justified itself enough be to be called a schizoid. He was prepsychotic by Dr. Thomas.

Welner: No.

Lewis: Were you here when Dr. Whitehead testified to that?

Welner: I'm not sure what I heard, but [I'm] happy to give you my opinion.

Lewis: I'm trying to get through this, if you'd just answer the question. Do you recall it?

Welner: No, I don't. I'd disagree with it.

Lewis: Dr. DeMeir?

Welner: I don't recall. If he did, I'd disagree with it. I do recall Dr. DeMeir testified he wasn't familiar with the DSM II.

Lewis: Your honor, could you instruct the witness to wait for a question?

Judge: I believe it was a follow-up.

Lewis: In the middle of the summary, he relishes the role of being the bad boy in the family but feels guilty about his role.

Welner: Yes, she does.

Lewis: It doesn't appear he lacked remorse in general.

Welner: Her opinion is just what she said. My opinion is she said what she said, his remorse —

Lewis: I'll get to that. He expressed guilt at that point.

Welner: Her opinion is he did express guilt.

Lewis: Do you know that schizophrenia is 6.9 times higher with those with antisocial behavior?

Welner: I was not. That's interesting, thank you.

Lewis: Have you been through the Sinclair Training?

Welner: I have not been though Sinclair Training.

Lewis: It produces a score on subfacets 1 through 4.

Welner: It produces a score on factor 1 and factor 2.

Lewis: You said this score sheet was incorporated in the report.

Welner: No, we sent over a score sheet on Monday.

Lewis: It was a blank score sheet.

Welner: Not the one I sent.

Lewis: We'll not worry about that one yet. On your score sheet, you gave total scores, not individual scores.

Welner: I tabulated the score. [It was] not my intention to offer testimony on it. [I] planned to testify about the score and how it showed a variant of antisocial by pscyhopathy.

Lewis: You devote 20 pages of this score but didn't score the subfacets, that's your testimony?

Welner: That's my testimony.

Lewis: It's been found to be reliable?

Welner: It is found to be reliable.

Lewis: Is it highly?

Welner: I believe it has been demonstrated to be reliable in a variety of different contexts.

Lewis: Are you aware of [a] peer-reviewed journal about its reliability if hired by prosecution or defenses?

Welner: In highly predatory, the score may be noticeably lower than the prosecution.

Lewis: Are you aware that recent empirical research that while it's acceptable in research, it's not reliable in adversarial contexts?

Welner: I am aware of people ... who are attempting to keep psychopathy out of [the] death penalty, though it's serving an agenda ...

Lewis: How is it being used?

Welner: ... some other research has taken away from the utility of its use where once it was perceived to be utilitarian.

Lewis: So you're aware of [the] adversarial context?

Welner: I think that's an overstatement.

Lewis: It's an overstatement to say that there are studies?

Welner: [I'm] aware of the statement. That does not necessarily dignify the comment to give it scientific creedence. The idea of adversarial statements of PCLR is not a comment I'm familiar with. I don't know how much scientific study there is for that broad a comment.

Lewis: Can you guide me to any studies that says that?

Welner: There is a tremendous amount of literature about the psychopathy checklist. Books about it, used in adversarial contexts, and used in places like Dr. DeMier's hospital which is why he uses it, highly used it, and certain instances where the research is not as robust.

Lewis: Let me ask a question again. Can you cite me any journals that say it is highly reliable in adversarial proceedings?

Welner: There is a number of reserach by Dr. Hare, and he immediately comes to mind. I can't cite certain things, there is so much literature.

Lewis: Dr. DeMier said he uses PCLR, is that right?

Welner: I believe both of them used that at one point.

Lewis: My question is neither one of them used them in this case, is that right?

Welner: You are right.

Lewis: Thank you, you answered it.

Welner: If it is not in the DSM, it is not considered a diagnosis.

Lewis: I want to go through, you put a list up of the different areas that scored on psychopathy. You didn't interview Mr. Mitchell, not for lack of trying, but you didn't interview him.

Welner: I did not interview him.

Lewis: Let's talk about the interrogation video tape, because that seems to be an issue that keeps coming up time and time again. Isn't it true if someone has delusional thoughts, and knows others don't share in those delusions, that could play a part? It is clear the agents aren't buying this at all.

Welner: That is right, they are not buying this.

Lewis: Did you consider the possibility that he acted the way he did because he ...

Welner: Absolutely. People weren't taking in his beliefs. It is designed to manage impressions. They were agressive and boxed him in, and then when his responses weren't helpful, he just started singing.

Lewis: Doesn't, after another doctor reads his book, that Mr. Mitchell naively tells him all the events of the case?

Welner: I don't know if that was Mitchell in his naivety.

Lewis: Let me rephrase that, when Mr. Mitchell was under the impression Dr. Whitehead was under his beliefs, he was more open to talking to him?

Welner: Yes, ma'am.

Lewis: On the grandiosity scale, he scored a 2?

Welner: Yes, ma'am. I scored him a 2 for those reasons.

Lewis: And those are the same reason others scored him that way for those delusions, and they can often be grandiose?

Welner: Yes, that is correct.

Lewis: Let's pull out the report again. And you state that Mr. Mitchell talks with an air of superiority, but what Dr. Thomas says is basically the same thing.

Lewis: In your report why you would include the quote that supports grandiosity but drop the one that says he shows distress?

Welner: The psychiatric appreciation of grandiosity is it's a way people relate to others, and it comes from many places including a deep injury to self esteem, Brian Mitchell's life has some deep disappointments ... he had a lot of life disappointments, a number of polygamous sect leaders graduate into these sects when they had great disappointments and scandal that can be humiliating, some people will relate to intellectual superiority. If someone relates to others that has intellectual superiority, if I speak to you with intellectual superiority, you don't care about the content it just comes across as pompous. I certainly do note that with Mr. Mitchell he's grandiose.

Lewis: Yes, thinking he's the Davidic King is pretty grandiose. Isn't it true that someone who suffers from delusional disorder and schizophrenia can be manipulative?

Welner: Someone can be manipulative independent of other diagnoses independent of other diagnoses, those with schizophrenia are less manipulative because they have concrete ideas, but diagnosis does not exist independent of your personality. As you mentioned earlier, there is an association with schizophrenia with antisocial personality disorder. If manipulative because of personality, not because of schizophrenia.

Lewis: But schizophrenia doesn't rule out being manipulative?

Welner: No ma'am.

Lewis: In the state hospital, no one had to interfere with him because he was being manipulative, did you hear testimony to that end?

Welner: I heard Dr. Whitehead's testimony about Mr. Mitchell being a 1 or 2 on a scale of 1 to 10 on a manipulation scale. He characterized him as not being manipulative.

Lewis: He testified his big manipulation scheme was getting two of the most responsible people to get him to escape.

Welner: I don't know if that's how I read that testimony.

Lewis: Well, the jury can look at it. How many years since graduating have you worked with inpatients?

Welner: Three.

Lewis: Did you ever work with manipulative patients who suffer from delusion?

Welner: Yes.

Lewis: We discussed the report where he expressed feelings of guilt and remorse.

Welner: In concert with relishing being the bad kid.

Lewis: He didn't show any remorse over taking Ms. Smart, that's what you stated about the FBI interview.

Welner: ... He meant it in a very shallow way.

Lewis: Do you believe that he exhibited remorse in the taking of Ms. Smart?

Welner: Absolutely not [microphone cut out]

Lewis: If Mr. Mitchell was operating under the delusion to take Ms. Smart as his wife, then showing remorse about that would be consistent with that delusion?

Welner: I could accept that, sure.

Lewis: When he didn't take the Kemp girl, he said he was relieved.

Welner: What he showed and what he said may have been relief not to be arrested. My testimony is that to know Mr. Mitchell is to be fooled by Mr. Mitchell. In my experience, she said what she remember he said.

Lewis: And that's what he said, that he's relieved.

Welner: That's what he said.

Lewis: I want to move on to shallow affect, in giving him a 2, you are claiming he shows shallow affect and no depth of emotion?

Welner: Correct.

Lewis: Especially with Wanda, did you hear Dr. Whitehead say he showed great distress over not seeing her.

Welner: Yes.

Lewis: Were you aware of him asking for a visit?

Welner: I would think that he would want to visit her for all the legal benefits that being able to control her would afford.

Lewis: What he did we all agree was odd, he showed considerable distress over giving up his children for adoption, remember?

Welner: I recall the family's testimony.

Lewis: He formed a close relationship with someone on the unit?

Welner: Yes.

Lewis: Didn't this show intimacy?

Welner: I think Dr. Whitehead dismissed it as something where he characterized Mitchell as a submissive lackey, I actually would go a little bit closer to your estimation, they had intimacy, they had the whole sex offender thing in common, they had the fundamental religious belief thing in common. In terms of his kids, I have a different opinion on that.

Lewis: Do you remember Dr. Whitehead saying he expressed great concern over what might happen when the other patient left the facility?

Welner: Yes.

Lewis: Lack of empathy, so you gave him a 2 on this one? So you are aware he tried to mend relationships with the family?

Welner: Yes, ma'am.

Lewis: You are aware Mitchell would escort Wanda through restrooms in areas he felt might not be safe and he helped her with pamphlets for her organ recital.

Welner: I recall that.

Lewis: He raised 50 dollars through panhandling for her organ recitals, is that correct?

Welner: Yes.

Lewis: Did you hear Dr. Whitehead say Mitchell was one of the most easily manageable patients he had had?

Welner: Yes, ma'am.

Lewis: When the family didn't take the Book of Immanuel David Isaiah — and neither did the Wests — he shouted, "Repent! Repent!"

Welner: Yes, ma'am.

Lewis: There are examples of when he controls his behavior, correct?

Welner: I did not give him a 2 on these impulses based on some of these things. I noticed he maintained his impulses, so I lowered it for a 2. I gave him a higher score a few months ago and have lowered it. This is what I sent over on Monday. This is precisely what I am talking about when talking with colleagues that I lowered his score.

Lewis: What was his score overall?

Welner: A 34.

Lewis: So it went from a 35 to a 34?

Welner: Yes.

Lewis: Lets look at lack of realistic long-term goals. You scored Mr. Mitchell a 2 in this area, and he is nomadic in some regard. But isn't this similar to how [people think] in life they are going to be a brain surgeon or something?

Welner: Or a leader of a sect.

Lewis: Or to fight off the Antichrist?

Welner: Or a leader of a sect. He communicated to Elizabeth Smart that he was going to fight the Antichrist. I think this demonstrates that this is not something that he was expressing to others. And he was going on an ambition that he was looking to collect a concubine and did it under the guise of building a sect because he wasn't' doing any other type of sect building anywhere else.

Lewis: OK let me ask the question again. If they are having delusions that they would give themselves 7 times 7 times 7 wives and lay dead in the street, in the context of that delusion, he was doing exactly everything the opposite of this. Now that is different than what the manual says.

Welner: No, he would stick his hand out and ask for money.

Lewis: I am saying hypothetically.

Welner: Oh, hypothetically, sure.

Lewis: Is he working toward or under his delusions?

Welner: [Long pause] Can I just say yes, rather than make it more difficult?

[Testimony ends for the day.]

Judge: OK, same as before to the jury. Do not engage in the electronic gizmos of the world. Now, there is a chance that testimony may come in tomorrow and [you] could get instructions and closings tomorrow.