This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated.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.
The following is a transcript of the closing arguments in the Brian David Mitchell trial.
Mitchell is accused of kidnapping Elizabeth Smart and taking her across state lines for the purpose of sex.
The jury is began deliberations in the case Thursday night, and could deliberate as long as midnight before breaking.
The Tribune is providing this transcript via its reporters in the courthouse. It is not an official court transcript.
Prosecutor Diana Hagen: Ladies and gentlemen of the jury, you are here to decide, Did Brian David Mitchell commit the crimes for which he is charged and, if so, should he be held criminally responsible for his actions? Our law recognizes that some people are so mentally ill that they can not be held responsible.
You will be given a jury verdict form and there are three choices, and you will need to decide if he is guilty, not guilty or not guilty for reason of insanity. It is my job to bring that evidence together and to tell you what verdict that evidence supports.
When you retire to deliberate, the first thing you need to consider is did he commit the crimes he is accused of. He is charged with kidnapping and unlawful sexual activity with a minor. I'm going to walk you through each of the elements and summarize how each of them you have heard has been proven beyond a reasonable doubt.
There are four elements in count one that the government must prove.
The first element is satisfied if you find that Brian David Mitchell took or carried away Elizabeth Smart and held her by force and without consent.
Elizabeth Smart was awakened in the middle of the night by a sharp metal knife held to her throat. She heard a strange male voice say, "I have a knife to your neck and come with me." She was forced to the mountains with a strange man where he proclaimed her as her wife and raped her.
This is an innocent young girl who was studying, played the harp, and at that awkward prepubescent age had no interest in boys. This modest girl even pinned the neck of her pajamas shut with a safety pin.
That night, she went to a junior high awards ceremony, came home and prayed with her family and read her sister a bedtime story. She was stripped of her clothes, her identity and her innocence. He snatched her from her home and isolated her where there was no one to protect her. When he raped her, he proved to her that no matter how much she screamed, begged and fought, he could do whatever he wanted to her and she was powerless to stop it.
For six long weeks, he chained her on a dog run. He took her dignity, her name and forced a new identity on her, and took her freedom by threatening her and making her totally reliant on him for food, protection. He took away her identity, he burned her shoes and her pajamas. She dug through the ashes to find the safety pin, her one last connection to her family. She kept it as long as she could but he took that away from her.
What's amazing is she didn't allow him to take her sense of self. He may have broken her will to flee with constant threats to her and her family and she could be chained and punished. She had seen what he was capable of. She was 14, isolated, and beaten down by relentless, unspeakable abuse. But despite it all, he never broke her will to survive. She knew she was a person of worth. She decided to outlive him. She did survive and it was her choices that helped her survive.
After hearing her tell you what she went through, there is no reasonable doubt she was taken against her will and held against her will. She never consented. She never gave up hope that she would be free from this man who put her through nine months of hell.
You saw the constant control over her, and they thought this was a girl in trouble. Trevinni's observation in Burger King in Vegas, he said she had a look in her eyes he would never forget. She was quivering and he said that look said "Help me." Even when saying grace, he had her by the wrists.
The United States has proven beyond a reasonable doubt that he kidnapped her and held her against her will.
The second element is satisfied if you find beyond a reasonable doubt that Brian David Mitchell took Smart for the benefit he desired. He took her as a 14-year-old captive. She needed to be young and malleable. Kidnapping a girl who already knows basic LDS beliefs of a living prophet. He was looking for someone he could control, like he did Wanda. When he didn't find that, he had to use restraints.
Elizabeth testified that she was raped almost immediately after her kidnapping. The defendant took and held Elizabeth Smart for satisfying his own sexual desires. That satisfies element two.
The third element is that Elizabeth Smart was transported from one location to another, and that the defendant did that. She didn't want to leave Utah, she wanted to be where she was found. On Oct. 7, 2002, they used Greyhound tickets to be transported to San Diego, and that satisfies element three.
The fourth element is that he acted unlawfully and unwillingly. Taking her across state lines was deliberate. He took her to San Diego because it would be warmer than Utah. Going to California was not by mistake or accident. Brian David Mitchell knew full well that taking Elizabeth to California was against the law. That is why he used a veil and used a false name when getting Greyhound tickets. That is why he told her not to speak to anyone, and to stay close to him, and not speak to anyone or her and her family will be killed. The final element is satisfied.
Now, if you agree with this, you will eliminate not guilty on count 1 on the verdict form. On count 2, there are 3 elements. As the court has instructed you, there is no disputing that the third element has been proven. It had been agreed and stipulated by the court that Elizabeth Smart was below 18 years of age.
As the judge has told you, interstate commerce simply means travel from one state to another, from here in Utah to California, not done by mistake or accident. As we have discussed, taking Elizabeth to California was no accident. They planned to find a new wife and planned and bought bus tickets. Clearly, they planned and took her across state lines, proving the first element.
Take across state lines for illegal sexual activity, rape, sex with someone under 18, oral copulation. He forced her to engage in illegal sexual activity in Utah and in California. We must prove that the defendant formed the intent to engage in that illegal sexual activity. The defense may argue that the travel to California was motivated
to go to a warmer climate before winter. The warmer climate may have been a factor, but it is not necessary they prove it was the only motivation for the travel. They must prove it was the significant, dominating or motivating factor in crossing state lines.
The sexual abuse was not incidental for three reasons:
The defendant told her they would go to California to find new wives. She was told she would have to demonstrate the sexual acts to new wives — and because she was 14, it was clearly illegal. In her new duties as wife, the defendant made clear that they are in California to engage in sexual activity.
Third, there was a close call with Detective Richie in Salt Lake City. He was so concerned that she was confined to the camp after that and he wouldn't let her come back down until they traveled to California, and covered her eyes so she wouldn't be recognized. It is easy to infer Brian David Mitchell had a great chance of being caught in Salt Lake City, where people were calling in tips to the police, like the tip Detective Richie responded to. To continue the sex abuse, they would travel to California to reduce the risk she would be reunited with her family.
The reason he took her to California was to continue to force her to engage in illegal sexual activity.
Now, if you agree that the government has proven each of those elements in count two, it means you have eliminated a verdict of not guilty on count two.
If you find that Brian David Mitchell committed the crime as charged, you must ask yourself if he should be held criminally responsible for what he did.
The defense has raised the insanity defense, which is someone has such a severe mental deficit they cannot understand what they were doing or that it was wrong. The law of insanity reflects it is not fair to punish someone because they don't have that kind of sanity. You must reflect if this is one of those cases ... not all mental illnesses are. Some are not severe or don't prevent someone from understanding what they are doing or what they are doing was wrong. That is the two-part test for insanity.
The defendant must prove first that he suffered from a severe mental disease or defect when he committed the crime, and as a result he was not able to understand what he was doing or that it was wrong. Remember this little word here, and. The defendant must prove both prongs of that insanity defense. If you decide that he understood what he was doing and that it was wrong, don't have to prove he had mental disease or defect.
The burden of proving insanity lies with the defense. The government does not have to prove he was sane. ... Like other aspects of the trial, the defense has to prove the insanity defense by clear and convincing evidence. If you find the evidence is on balance ... you may not return a verdict of not guilty by reason of insanity.
Let's walk through the elements of insanity. The first prong is he has to prove mental disease or defect from June 5, 2002, to March 13, 2003. The defense claims that he suffers from a psychotic disorder, though their experts cannot agree on a diagnosis. One claims schizophrenia, one delusion. Whitehead said it was paramount to get the diagnosis correct. Dr. DeMier says they are mutually exclusive in the DSM. The fact they cannot agree on a diagnosis is incredibly telling. The reason Brian David Mitchell does not fit on any diagnosis comfortably is he is not mentally ill.
We are focused on his mental state at the time of the crime. Dr. DeMier has no opinion on whether he suffered from a severe mental defect or disease at the time. He has no opinion on what to describe, and he did as good a job as he could do with the time he had to evaluate.
He testified he did not do the work that needed to be done. The ones that did do that work were Dr. Gardner and Dr. Welner. They have already given you explanations of why the defendant did not have a psychotic illness.
We're going to focus on the crux of the issue The defense claims Brian David Mitchell suffers from a delusional disorder. Dr. DeMier and Dr. Whitehead testified Mr. Mitchell claims he is the One Mighty and Strong. Now how do we know they are not delusions?
There are there simple things that show they are not. No. 1, they (the ideas) not fixed. No. 2, they have a cultural explanation. No. 3, the evidence does not support he had a dramatic decline in functions. The first reason is that the ideas are not fixed. A delusion is one that is fixed and held tenaciously. The defendant has religious beliefs that are only used when useful. The robes that he told Wanda were divinely inspired were just a costume for him. He bathed in a Gandhi costume at a nude beach. He took off the robes after 9-11. But in the Salt Lake City Library, he played the Muslim card for all that it was worth. When he was trying to find LDS girls to kidnap, he cleaned himself up and went as an investigator.
When you see pictures, don't forget that is not how he looked when he met Ms. Smart. When he met Ms. Smart, he wasn't singing and holding out his arms. It was a persona that he could turn on and off. The long hair and beard were the same in 1977. Remember the note to his mother: "I like to act." The long hair and beard was just a part of his act, another part of his persona.
He can switch in and out of character at will. When the defendant would talk with Julie Atkison, they would have a perfectly normal conversation until someone walked by, then he would hold out his hands and hum. When a person walked on, he would stop and continue talking.
When he was arrested for shoplifting beer at Alberstons, he said his name was Go With God. This happened during the time of the insanity defense. He wouldn't give his real name until Officer Rendell said, "Look, dude ,give me your real name and I'll let you go." Did he hold to his religious delusions? Rather than spend a night in jail, he gave the name Brian David Mitchell and the and correct date of birth and he let him go. He wasn't even willing to spend a night in jail for his religious delusions.
He switched roles again in California as a humble, penitent minister who went to the Kemp home and he had taken off his robes and put on street clothes. He played the role of Peter, and investigator interested in LDS Church. As Wanda testified, he was a great deceiver.
When he said he was an investigator, did he say he was the Davidic king, the One Mighty and Strong? No, in fact he doesn't even say he was a prophet. He denies he's a prophet and says he's just a servant of the Lord. Brian David Mitchell does not suffer from the belief that he is a prophet. He is not a prophet, he is not delusional, he is a predatory chameleon who adapts his behavior to anything that serves himself.
The defense may argue that the deceit and the delusions are encapsulated. But as Dr. Gardner explained a truly delusional person is right beyond the surface, and is waiting to be scratched. If it was true that delusional people can hide their delusions will, there would be no way to determine objectively if they have delusions.
The evidence shows these are not encapsulated delusions. Once touched upon, it trips that trigger, scratches that itch. You just saw one example where the defendant was specifically asked about his supposed religious delusions. He frequently engaged in religious discussions without giving any hint of any of these ideas that the defense says is delusional. He spent time with Frank DeSalvo in Bible study and never indicated he had any ideas outside of mainstream Protestant beliefs. He spent time with his brother-in-law Scott ... the defendant never claimed he was God or had any special role.
In 2001, he and Wanda stayed with a Seventh Day Adventist family, they stayed with a host, and never said anything controversial.
Jeremy Clark talked about dinner in the Kemp home. He's a missionary for the LDS Church, the same LDS Church that is apostate, the same LDS church that Brian David Mitchell says he will set straight as the One Mighty and Strong. Jeremy Clark began teaching about the LDS Church, Joseph Smith, the prophets of the Latter-day Saints.
If Brian David Mitchell had a psychotic delusion that he himself was a prophet and that he was the One Mighty and Strong, do you believe, ladies and gentlemen, given your common sense and good judgment, he would have listened without giving any hint of his delusions?
When you're back in the jury room discussing if he was really delusional, remember Jeremy Clarks' testimony.
The second reason the defendant does not have a severe mental disease or defect is he has a cultural context for all of his ideas. They are not a result of a damaged brain. They are based on things learned from his environment , things that he took in and processed in an non-psychotic way. A delusion is a fixed, false belief and it's hard to determine if a religion is a fixed, false belief. That's why DSM excepts articles of faith from fixed, false beliefs.
Wanda testified about the priesthood blessing that her womb would be open and she would bear children when she saw her savior and received her revelation and calling. It was a bizarre delusion, Dr. DeMier testified. That idea is consistent with the mainstream LDS view of resurrection, where the body is made whole and the continuation of seed or family in the next life.
The difficulty of distinguishing between religious ideas and delusions is addressed in the DSM. The key is to understand that you have to also understand the culture.
The difference between Dr. Gardner and Dr. Welner is that they delved deep into his life. As we have learned from Dr. Peterson and from stipulation of Sterling Allan, the defendant's beliefs are similar to Mormon fundamentalist fringe organizations.
This large group of what one might call the fundamentalist LDS, have a belief in the Doctrines and Covenants. The belief that the One Mighty and Strong will come from outside the LDS Church. As Dr. Peterson said, there is a crowd of One Mighty and Strong. Many make that claim. That is their claim of authority.
This is the understanding that Brian David Mitchell became immersed in in the early 1990s.
Remember from Wanda and LouRee that Mr. Mitchell was angry when he didn't get called as a bishop in the early 1990s. At the same time, he was showing LouRee porn during prayer and feeding her her pet rabbit. And he went on to get callings in the high priest group. But the other Brian David Mitchell was attending fringe Mormon fundamentalist groups.
He became involved with C. Samuel West, learning about something called lymphology, which he claimed to be involved in LDS beliefs.
As Alyssa Landry testifies, it is in the fundamentalist principal of polygamy, the law of consecration, and someone from outside of the church would put it back into order. Then he joined fundamentalists in Idaho. Two dogs with one bone will generally cause a fight. It was all about power.
Brian David Mitchell's exposure to unconventional religious thinking happened before. He began identifying with his father's religious teaching in his teens, and later with Wanda Barzee. His father said he was an elect man of god. Is it any wonder he began emulating his father by writing his own book? It is not proof he inherited a mental illness. It validates what we all know: We are shaped by our siblings, by our own parents. The fringe fundamentalist groups, the One Mighty and Strong, his narcissism, his drive for control and power, to exploit for his advantage, he would throw his hat in that ring.
The significance of that cultural explanation provides a rational, non-psychotic rationale for why he behaves the way he does. All the strange things he does he learned from his others: his all-fruit diet from his father, his touch healing from lymphology and West, mainstream medication rejecting and fundamentalism from his environment. There's no need to resort to mental health consideration in this case.
That leads me to my third point, that the defendant suffered from a mysterious decline in the mid-1990s that can only be explained by a mental illness onset.
He appeared to be a normal person and became a street preacher, dressed in robes with long hair and a beard. He went from this to this, and on this surface level it's understandable why Dr. Whitehead and DeMier see this transformation only as a psychotic break. Dr. Gardner and Welner understood there was more than there appeared on this surface. It is not the first time he took on the personality as a religious fanatic. He did the same thing when he grew out his hair and beard and joined Hari Krishna. He was using Hari Krishna for food and shelter and never believed any of it. What about the beard and hair? Remember the letter to his mother? "I like acting, and the hair and beard are part of the new act," just like they are now. Mrs. Kemp recalls the defendant saying he wanted to grow out his beard and go out panhandling like he had earlier.
This is not an out-of-control deterioration. He told Mrs. Kemp he didn't want to work. He told his sister Lisa Holbrook he was opposed to paying taxes. He didn't want to pay child support. As his stepdaughter LouRee said, he couldn't pay his bills. At the same time that LouRee was in his home, he was studying survivalism and living off the land. He wanted to be free man, no taxes, no wages to garnish for child support. He wasn't forced out of work by mental illness, he was a good worker at OC Tanner and he chose to leave those jobs. He was exceptionally good at promoting lymphology, at soliciting donations from strangers over the phone.
He was socially proper and gave no hints of any mental illness. It wasn't that he wasn't capable of holding a job, it was that he wanted to take without giving anything back.
Another myth is that Wanda and Mr. Mitchell were homeless. They set themselves up nicely when visiting church historic sites, like two college kids hiking in Europe. They stayed at people's homes and stayed at hotels. They even got a $439 dollar allotment check in New York to stay. Then they went to the West family for seven months. Then they went to Irene Mitchell's. Then they didn't leave until two months before the kidnapping. These people weren't homeless, they weren't street people. They were putting on a show. He did it to drive up donations, but in the end it was just a show.
Although the evidence shows Brian David Mitchell was not mentally ill, you might ask why the defendant engaged in this culture. Dr Welner and Dr. Gardner's testimony say when you expose a religious person's beliefs, it is used to help him work around them but when you expose a narcissist, they will use it to expose his faults.
In other words, you get Brian David Mitchell. The government doesn't have to prove he is a pedophile. We offer that only to show the reasons for why he did what he did. It is the defense burden to prove insanity. The defendant has not proven that he suffers from a severe mental disease. Even if you were to find that he did, they would also have to prove as a result that he could not understand what he was doing was wrong.
Once he decided in the fall of 2001 to kidnap Elizabeth Smart, he carefully planned so he would not get caught. He packed up a teepee to a more inconspicuous spot so they would not be seen. He constructed a cable system to allow her to reach that part of the camp he wanted to let her to reach. Certainly not to the far end where the bolt cutters where so she could free herself. When he was ready, he broke into Elizabeth's home under the cover of darkness wearing stocking cap and gloves. He threatened her life and the life of her family as her sister lay asleep next to her and threatened to kill her family if she didn't come quietly.
Once out of the house, away from the immediate danger to her sleeping family, she asked if he knew what he was doing. She even said they wouldn't press charges if he let her go. He said he knew what he was doing.
They hid behind a bush, and he told her to hurry behind the ridge so she would not be spotted in her bright red pajamas by runners on the trails below. When searchers came near the camp, he threatened to kill her.
He even took different paths down to Salt Lake so as not to create a beaten path. He kept her sandals in what he called a shoe tree so no one would see hiking boots and make a connection they were living in the mountains. He had terrified her enough that she would not run. And only after making a robe and head veil — and to make her not look out of place Wanda wore one too the first time. There was no religious significance, it was so as not to be captured. He even had the presence of mind to force her to scrape her toenail polish off. He threatened her to stay at his side so he could control her. He knew of the search for Elizabeth. He tried to rip down a poster in the Deseret News building and tried to show a news article to show the massive search had failed.
He called her his daughter, not his wife, and lied about her age. Daughter. Perhaps if he was caught and accused of having a sexual relationship with an underage girl it wouldn't be if he didn't know she was a minor. In his interrogation, they asked "how old is she?" He said 18. After a close call in the Salt Lake Library, he never let her come back down until they left the state.
He was caught for shoplifting at Albertsons. Law enforcement knew his real name, and he was known to law enforcement. He had Wanda add eye coverings to their veils. Her eyes that nearly led to her capture at the library would not let her get away again.
He used the names Michael Jensen and Peter Marshall. While hitchhiking, he moved camp at Lakeside to a deep and isolated location after he saw a news article about the search and a man came too close to the camp. He made them change to street clothes so they wouldn't draw attention to themselves. ...
When they hitchhiked back to Utah, the robes would no longer do. It was less likely they would stop for strangely dressed hitchhikers. So he came up with a cover story complete with aliases, so no one would find out who Elizabeth was and that no one would find out what he had done. He knew exactly what he had done. He had kidnapped and raped a young girl. He knew he had done something terribly wrong. He knew what he was doing and knew that it was wrong, regardless if you have a severe mental disease or defect, you are not entitled to an insanity defense.
The defense may argue that Mr. Mitchell argued God had commanded him to kidnap Elizabeth and that he was acting religiously. You may consider whether the defendant has presented clear and convincing evidence that he was acting under direct command of God. We have already discussed that Brian David Mitchell is not delusional. If he's not delusional, it doesn't matter. Even if he shows he does have a mental illness, does the evidence show he was acting under a delusional belief?
He told Elizabeth that he wanted her from the moment he saw her. He told Elizabeth he had accepted work at her home so he could determine where she lived and he could return and kidnap her. That was in fall 2001. By then he already decided to
kidnap her. He then used religion to make Wanda a co-conspirator and ensure her compliance. The purported command from God to go forth came, and on April 30, 2002, six months after Mr. Mitchell had decided to kidnap her. That the time was six months later was very convenient. After 9/11, long beards and Middle Eastern robes were not good for panhandlings. When
Mrs. Smart met him, he looked like a regular Joe. In the time that elapsed from when he met her and when he received the command from God, he had time to grow out his hair and his beard.
That change in appearance ended up preventing Mary Katherine from instantly identifying him. It is also noted that the command of God came during the end of spring and he could go up into the mountains. After all, he couldn't bring a kidnap victim to his mom's house.
Elizabeth asked what he was going to do with her. Does he tell her that he is taking her as a plural wife, that it is God's will and to be obedient? No, he tells her that she is being taken hostage for ransom. Ask yourselves, ladies and gentlemen, if Brian David Mitchell suffered from a mental illness and forced Elizabeth to be his wife, what would he have said in that moment? Would he have sparred with investigators when questioned, or would he have said that God told him to take Elizabeth and that he had no choice but to obey?
Let's talk about free choice. In the interview you have seen the defendant says one can choose to disobey God and such is sin. But God is always eager to forgive and take him back. This is not a delusional person that thinks he will be struck down if he disobeys what he thinks God is telling him to do. He disobeys revelations from God all the time. Just as he threw way the schedule while lusting after Elizabeth.
The way he went to dentist and accepted lidocaine, despite the Book of Immanuel David Isaiah saying not to take those things. Ladies and gentlemen, if he had chosen to disobey when it is convenient, he can certainly choose to rip a child away from her home and family to rape and abuse her, to rob her of her dignity and identity and her childhood. He chose to do those things. Not because he thought that God commanded him to but because he wanted to. The defendant wasn't satisfied with sexually abusing little girls. He wanted to have one to abuse over and over again to satisfy what he called Immanuel's pride.
His talk of obedience to God's command is nothing more than a justification that he knew full well what he was doing was wrong. If you agree with that, ladies and gentlemen, you will eliminate the option of not guilty by reason of insanity.
As I said at the beginning, Brian David Mitchell kidnapped her from the safety of her bedroom and subjected her to abuse for nine long months. He took her across state lines and prevented her from being discovered When Brian David Mitchell committed this crime, he was not suffering from severe mental defect. He knew what he was doing was wrong. The defense has not proven that Brian David Mitchell is not guilty by reason insanity. The only verdict that can be supported by this evidence is that the defendant is guilty of both counts. Thank you.
[Robert Steele begins the defense's closing arguments.]
The defendant Brian David Mitchell kidnapped Elizabeth Smart and raped her. He kept her for a long time under abominable conditions, and raped her repeatedly. Why should we do anything more than find him guilty? Why should we consider the insanity defense?
Ms. Hagen said look for the tragic case, but you're not going to find it here. A tragic case is a good mother killing her child because God told her, "Kill her." You're not going to find that. You don't have a good man. You have a man with a background of bad things. A man who's not very likable.
It's strange and disconcerting he's not here. I'm not saying that means he's insane. Just that it's strange and disconcerting. I'm used to being told by a court that you are going to represent this man and I am used to standing by him no matter what he's done. He's not here and that's odd. You've already put in a lot of work and paid attention. Four weeks of court days over 6 weeks: That's a lot of work. Another reason to do that is that the court system has said that we can bring closure. Judge Kimball has told you to find closure through a number of instructions. One of them is the insanity defense. Considering that is an importance piece of letting that evidence come together.
The history of the insanity defense is one of concern of what's in a defendant's head. What's their state of mind?
Not guilty is not a freeing up of the system. It's a closing down. It's "He's not guilty only by reason of insanity." That goes forward from 1800 quickly adopted in United States. Cases like Hadfield's case. Mr. Hadfield believed the world would come to an end unless he died, but couldn't kill himself.
Got some pistols and take some shots at King George. They were going to kill him. They found him not guilty reason of insanity. This court house, this federal system takes mental health very seriously. This court building houses first mental health court.
The belief is that if you address not the individual case, but [with] mental health you increase the safety of everyone's life. So we should go forward. You have worked hard and you have paid attention.
Dr. Gardner divided it up into 3 D's: devout, delusional and delinquent.
I want to start with devout because I don't think it has been clear what religious talk is about. I think we need to take a look at it and think that Mr. Mitchell is not insane or doesn't genuinely believe because he is not an accomplished spiritual person.
Well, he is not filled with God. He is not. I would not expect him to do good things. He doesn't want to work, that is true. So I don't quite understand that as a part of this. There was a sense. There is a sense from Dr. Peterson that this is nothing authentic from Mr. Mitchell's writings. Well, there isn't. It is mentally ill or an evil, bad man. It is not about a ... religious experience.
It is not about being like Joseph Smith or Saint Paul that had experiences that changed the world. This doesn't come close to endanger another believer's sanity. From our perspective, he is mentally ill. The question of whether he sincerely believes his own beliefs is a good one. It is not if they are good, or new and original. What does he believe, and does he believe it? I would point to one of a few things the people he has met said of their time. They have found him sincere in his belief. Few said they found him to be mentally ill, but that they found him to be sincere, that they believe he believed what he was saying. The McKnights and Julie Adkinson, just being nice, just sat with him, for ... four hours was far too long, but they believed he was sincere for his misguided beliefs.
How long has he been out there traveling, pulling vehicles around? What is the payback?
What [is the] good for himself? What pleasure for himself has he accomplished? These are people who appear to believe whatever it is they believe, and I think it is hard to even think it is some game or ploy or some charade for that period of time. That is a long time.
There was talk by the mental health professionals that you had to measure bizarre or not for religious delusions against a religious background he came from. I don't know that measuring these as bizarre is necessary.
Dr. Whitehead and Dr. DeMier concluded he has a psychotic disorder based on delusions, but they don't agree whether or not there's a delusional disorder. While religion is useful for that, I'm not sure it's useful for this case.
I think the way to look at that, you can't put up an idea, write a sentence that this is what the delusional belief is, and analyze if that's a delusional belief or not. It's not about the belief, it's about what's churning inside the person's head. Look at experience through belief and the behavior. Don't just look at the belief to say whether or not its's a delusion or whether or not it can generate insanity.
Delinquent, which Dr. Gardner was pointing to, is the diagnosis he and Dr. Welner came to. Axis 2 personality disorders, those are not severe mental illnesses. The way they are described by the two doctors , I would say, generally yes, that is what delinquency is about, and Mr. Mitchell is a narcissistic personality disordered person with an antisocial personality disorder. There's confirmation of that, that's right on. Those are self-explanatory kinds of things.
Our understanding of antisocial is what the diagnostic manual would describe as ... my client has expressed a lot of antisocial behavior in the 1970s — lewdness, exposing himself to very young girl. The behavior that he expressed with his family is not what a normal teen is doing in the 1980s.
In the family with daddy Mitchell, we heard from Rebecca and Heidi, it was not a good marriage. The mice thing on the stove, that's a bad thing to do. It's not a good response to an argument, even if he thought he was trying to do something good in baking bread, it's not a good response. In 1990, the rabbit, there are too many animal stories in this, but that was a bad thing, he may have instigated, I don't know, those are antisocial behaviors.
There's the pedophilia that both doctors find is assuredly there. In 1970 that's the very thing that brings him into juvenile court, a child sex charge. In the early 1980s, there's testimony from Rebecca Woodridge that he sexually abused her. That's not rebutted by us. In the late 1980s, the grooming behavior with LouRee, all these things, al the doctors conceded this, not without pulling out a couple toenails on some of it, that all these are mental illness. Though not severe, they can coexist with severe mental illness.
The conclusion of Gardner and Welner is these fully explain the behavior. Both of them talk about super forms of their particular personality disorder was most prominent, psychopathy with Welner and malignant narcissistic disorder with Dr. Gardner. I'm not sure how welded Dr. Welner was to that diagnosis, because he hadn't done the checklist. Dr. Gardner pointed to a text by Dr. Theodore Milan — he's the guy, a writer of DSM, the foremost of personality disorder — and read you a quote about it isn't malignant, about an unprincipled narcissists. A lot of those things apply, does apply to Mr. Mitchell's behavior. The interesting thing about malignant personality disorder, Milan goes on in a couple of pages further, if there is an unending or increased stress of failure over a period of time — those aren't his words — that the unprincipled narcissist can develop delusions. Dr. Gardner says that's cognitive distortion, but nowhere does Dr. Milan say cognitive distortion.
Dr. Gardner was saying what his belief was, he has interest in personality disorder and thought differently from Dr. Milan. Dr. Golding said the DSM V is looking at all these things...
Behavior can be described in a number of ways. Part of those can be described as personality disorder, inflexible, maladaptive, causing problems in life, is there more? If indeed there's an unprincipled narcissistic process going on in this, that would be a severe mental illness. How any of this happened, I don't know. You weren't told.
Nobody knows. They know how to describe behavior and assign some kind of name for it.
The third "D" is delusional, which is what our argument has been — that Mr. Mitchell has a delusional disorder. The delusion described by all the doctors can be that it looks normal. For Mr. Mitchell, it looks like a normal personality disorder. It is very difficult to point to something and say this is delusional, this isn't antisocial. It is all intertwined and grafted together.
Dr. Welner, I agree with him, he seems to point to a point with LouRee Gayler in the late 1980s. Brian has a job and is going to have it for a couple of years, and they are involved in church and whether he is hypocritical or not. There is a non-involvement with his family. Both of these people (Mitchell and Barzee) have a period of stability and then they lose it.
Dr. Welner points to this and says what happens after that. This is where we point to, it is where Dr. DeMier points to, where Dr. Whitehead points to, where things start to fall apart. This doesn't create happiness, this creates problems for him. He isn't connected to his family. His father isn't involved in his son's life and he is unconnected by 1970.
With his mother, there is fighting and really nasty things. Dr. Franke would point out more things than anti-social. It was also paranoia. He said there are thoughts that are irrational, a delusional disorder that doesn't become evident until his 30s or so.
During the marriage with Debi, she had a vision of Christ and said I had a revelation to marry you. He is trying to be good, but Kayleen is also describing that here is increasing paranoia. He does this awful thing. He gives away his kids. In the late '70s, he was able to connect. Marlon Peterson, a friend said he was good to his kids. They were not good parents, but he loved his kids and then he takes them. He was as damaged as he was. It is an odd expression of connectedness, and all that goes away a couple years later.
Now, fortunately, those kids didn't completely go away. They live back with his mother and come back into the family, but very odd behaviors mixed with bizarreness and irrationally tied to religion is in part an antisocial behavior.
Moving on from the point of LouRee, he and Wanda leave the world, go to work with Mr. West. I'm not sure when, the first time or second time. It may have been more about 1997 than 1994 with Dr. West, and there's some purpose behind that and he is fired up about those ideas. Then they leave and they end up going up to Pleaseant Valley Farm and Tom McKnight describes Brian David Mitchell. He has a pamphlet, some falling out with Pleasant Valley Farm. He hints of polygamy and fundamentalist ideas coming out of that church and Brian's writing stops. Tom doesn't remember much of it.
For McKnight, it's hard to remember the Book of Immanuel David Isaiah. The sentences are clearly constructed, but there's no point. What Tom could gather, Brian put himself on a pedestal. This is the evidence of the growing delusion. There's a lot of things interesting. The only thing that's strong about a delusion is the emotion behind it. The logic is weak and the reasons sick. Don't expect to be astonished or anything. There's this emotional pulse below, and Brian, who has had no or very little connectedness and mostly failures, and there's this growing feeling that he is somebody very important. I don't know how it's articulated because Tom doesn't tell us, and it doesn't measure up with his life, his circumstances. He tries to make something of it, give everything away, travel through the land. Wanda makes that deeply moving experience. Talking, to a lot of people, is healthy. Wanda doesn't experience it that way.
That's going on. Come back from that to '97, they lived with Wanda's mother. They end up living in the hills for awhile. The same basic place they set up their camp before they kidnap Elizabeth. They're living there off and on. They're not homeless, but choosing various habitats. Eventually they go back to the Wests and he is treated as a holy man. This is the itch. This is what he wants.
And it's here he starts talking about polygamy. First with Dr. West, standard-issue FLDS — watch "Big Love" on TV, Warren Jeffs just taken to Texas — nothing unusual, but polygamy starts to be part of the conversations. Look at the Book of Immanuel David Isaiah. The only thing he can do is be a part of this grand design. So polygamy becomes it. I would assert that if there's a delusion, that's a part of it. I'm sceptical, more sceptical than anyone in this room, of the need to express love through polygamous relations. In 2000, there's a revelation. He didn't know the sincerity of each and every revelation, but the driving sense is that polygamy is what's going on.
It's easy to say he's just making it up, but this is sustained, long-term drive: "I am special and I'm going to express that through polygamy." ... It grows over time. There's his relationship with Kelly, and I'd acknowledge it is mostly about his lust. There's the attempted relationship with Julie Adkison. Every nice person who listened to him for way too long, and he thought she was interested in being a plural wife and selling a very expensive ring.
He can't talk any adult woman into doing this. So there's a revelation about 10-to-14-year-old girls, a horrific revelation, that's awful. It dovetails nicely with his pedophilia. Some of what's going on is not a delusion and some of it is. He then meets up with part of her family and relays to her later that he knew then that she was the one. He meets at their house, does work at their house. He's not turning over a new leaf and starting to do handyman jobs, but scoping this out, and finds out to his surprise it's at the bottom of the canyon where he lives off and on.
You can look at it two ways. The antisocial pedophilia says, "Aha, this is going to be easy." The delusional person says, "God is telling me something. This is the one."
2002, in February, he writes down The Book of Immanuel David Isaiah. What we have in these various books and pamphlets we see him writing. Dora Corbett in stipulated testimony says he doesn't seem content until the February 2002 book. And in April he delivers it, and it's not good. Everybody turns him away. He's shouting "repent" from the streets. He's yelling at his mom. He's getting angry he's getting turned down.
In May, his mother gets a protective order in response to one of these interactions, yelling "repent" and pushing around. Police say it's going to take some time. Family come and have to take her to Matheson Courthouse. He and Wanda destroy everything they can't take with them.
It's well, I don't know that there was anything special. If there's a special thing, Dr. Whitehead was closer in time to 2002, 2003 the first meeting being in 2003, and his contact with Mr. Mitchell lasted three years. You've heard testimony from other people who worked in the hospital who thought other things were going on. But he reviewed everything, charting and talked to a lot of those people.
Dr. DeMier works for the federal system. He spent the second most time with him. He saw him in another situation, though he hadn't reviewed all the material when he talked with Mr. Mitchell. He had reviewed all the material by time he had formulated his opinion. Dr. Welner was with the state system and retained by the government.
All of them did a lot of work. All of them are incredibly attached to what they believe in case, all have a professional stake in it. You need to look at all them, how they describe the same behaviors, in terms of what it means in terms of mental health. Reflect with them. They're there to help you.
There's — unfortunately, I have to convince you of more. At this point you say, "Bob how much more can you convince us of?" There's a lot, because the insanity defense is designed by Congress to be very, very difficult to prove. I don't have any other burden of proof in any other situation. I have to convince you there's clear and convincing evidence, and severe mental illness; and this next thing: that as a result of this mental disease or defect he was unable to understand what he was doing or understand what was wrong.
He understood what he was doing. He knew it was wrong. The only thing that helps us articulate why, with the insanity defense you may consider clear and convincing evidence that as a result he suffered from a delusional belief he was acting under direct command of God. If I convince you he was acting under direct command of God, you can find that what he was doing was wrong. Commands of gods are bigger than laws of man. If he was convinced the devil told him to do it, it's delusional; but no one believes that what the devil tells you to do is the right thing, but he believes that what God tells you to do is the right thing, but if delusions and God tells you to take another wife, you have to and you can't appreciate the wrongfulness.
It's been pointed out that problem number two, Ms. Hagen's conversation with Dr. DeMier. Mr. Mitchell essentially talking about Paul's notion of grace and that's it's always available, you can always repent, always be forgiven. That is repeatedly said for more normal things, I think drinking, smoking and sex. Those with more truth trust the greater damnation. That it is harder to come back and may be impossible. And he has the greatest truth he is very, very special. Maybe most important on the plan, he doesn't have free will to say "No, God I'm not going to do it."
The third problem of the insanity defense. Severe mental illness is something internal to Brian David Mitchell, but insanity is not. I'm not going to say he's severely mentally ill and so he's innocent for all these charges. If I've convinced you that he believes God told him to kidnap and take another wife, take Elizabeth Smart, he's not guilty by reason of insanity for kidnapping. If it were in state court, he'd be charged with rape. Not here. It is rare to have a federal rape charge. If there were a rape charge, I'd have to tell you he's not insane even if — let's assume the delusions, the mental illness, all commanded it — it would be impossible and I wouldn't try to tell you that the repeated rapes were commanded by God. He has said repeatedly he is a weak man, so if that's as charged, I don't think I could argue to you with a straight face that he was not guilty by reason of insanity.
The transporting across state lines. That the primary reason to cross state lines, Elizabeth testified they left to get more wives. That's part of the delusions and subject to a not guilty by reason of insanity verdict. There's certainly not as much behind that. It's hard to do, to say. I think logically it's consistent. I don't know if I can tell as compelling a tale about that charge. We don't know that much about this decision.
For better or worse, I don't think I have much more I can tell you in making your decision. Just as if it's not appropriate to see if he is a good person, before he can be looked at for being not guilty by reason of insanity, how is he going to be punished. The instruction is that's up to the court, and you have to trust the court.
Thank you for your attention, and you've been at it for a long, long time, and thank you for your attention.
[Prosecutor Felice Viti gives the rebuttal]
It pleases the court, Mr. Steele.
A little over a month ago we made opening statements. In statements [you heard] that the testimony you would see and hear between the period of June 5, 2002, and March 12, 2003, would only provide you with a snapshot of who the defendant was and is. You have heard a number of witnesses during that time. But you have also heard about a witness that testifies during the time [when] he was a child to now.
Let's think of that testimony as a form of a motion picture. And if you watch this movie beginning with Brian David Mitchell as a young man to the present, you do get a good understanding of who he is and what he does.
Personality traits of Brian David Mitchell, who [he] is in large extent, remain unchanged. Shirl Mitchell, the defendant's father, provided us with that first frame. His son was described as "Peck's bad boy." Shirl drove his son to the town and told him to find his way home. And Brian took this and made an adventure out of it. He went up to the Capitol and took pictures of Japanese tourists, and with the money they gave him, he went and saw a double-feature movie at the old theater. He punished those that would punish him.
At 16, he was arrested for exposing himself to a 8-year-old ... and forcing her to touch his penis. Franke said he was becoming cruel and sadistic. Brian told his mother that he could push his mother down the stairs, and she would be dead and no one would ever know. [He] told other children he would [pluck] their eyeballs out.
Franke noticed something important: that a 16-year-old, a family member, said he might even manipulate a psychologist. Finally Franke told you how the defendant absented himself when he hears the words, "You mother and I have been talking." He described how after the break-up, after the marriage, Brian devised a way to take his two children to the East coast.
Brian knew what was in the best interest of those children, knew better than the judge deciding that issue. And when he returned to Utah, instead of allowing his mother to adopt those children, those children he loved so much, [he] gave them to a stranger not of his faith who lived outside of Salt Lake City. According to Hill, he isolated those children from their peers and the family who loved them.
[His] mother Irene read a portion of letter that he informed her of his new look — long hair, long beard — and, quote, "I like acting. My hair and my new beard is part of my new act."
Doug Larsen, Brian's friend and coworker at OC Tanner, knew an ordinance worker.
They felt like her own. Brian would not give them to her, but to strangers.
Rebecca Woodridge told you through the stipulation that the defendant touched her chest and genitals over and under the clothes and forced her to touch his penis. The defendant was 40, and she was 7 years old.
[In a] heated argument with Heidi over baking bread, he placed dead mice on the stove and continued baking the bread, no further complaints about the baking.
LouRee told about how she was fed her pet rabbit, and when Wanda told her the defendant was nearby, and look in with glee. On five or six occasions during family prayer, [he] pulled nude magazines — not National Geographic — and showed pictures of nude women, and touched her in ways that made her feel uncomfortable.
Thomas McKnight, the miracle fifth-wheeler that the defendant owed money on, described [his] domination over Wanda: quote, "He was more the hammer. She was more the anvil." Frank de Salvo described his generosity over the course of one month. How [when they] first met, he noticed a handcart in front of his store and saw a cross on their cart and thought they were Christian. Mr. de Salvo was sure he had something at the shop, that he was a minister or Christian. [He] said one of the two things. When I heard Dr. Whitehead testify that there are no coincidences in Brian's life. This chance encounter with Mr. de Salvo came to mind. No coincidences, but not for the reason Dr. Whitehead said. He is so adept at manipulating that environment that he leaves very little to chance. What are the chances that he happens to park his cart with a cross on the side in front of the store of an ordained minister that advertises he is a minister. It's not chance, ladies and gentlemen, because he controls every aspect of his life.
I want to focus on one: the manipulations of her for the revelation of celestial marriage, polygamy. According to Wanda, [on] Jan. 1, 2000, [he] said he had a revelation of an African-American woman in the context of celestial marriage. He was surprised, afraid of it. She was upset about it. For two days she described her feelings, even collapsed in his arms, and then he gave [a] priesthood blessing: Live the law or suffer eternal consequences. She would not be allowed back into God's grace. She could not exercise free will like he could. As she said in Dr. DeMier's video, she had to be perfect, and being perfect was obeying Brian. He took her to meet Kelly, who happened to panhandle in the same area — another coincidence, as described by Dr. Whitehead.
While Wanda was soaking in the tub, he told her he had consecrated the marriage, against her will. She must evoke the Law of Sarah or at least be present during [the] consummation — another one of Brian's rituals tossed aside. Wanda felt horrible because he didn't want to have anything to do with her, Mother of Zion, after he had met Kelly.
Wanda and the defendant dated Kelly for about one week . Kelly and the defendant were in a room having sex while Wanda was waiting in the back room. I guess at this point the defendant was over the point of what the mother of Zion was supposed to do.
On April of 2002, after meeting Elizabeth and working in the Smart home in the fall of 2001, the defendant told Wanda he had a revelation to take 10- to 14-year-olds.
Remember, he told Elizabeth that he came to scout it out before he came to kidnap her. Wanda would express anger over the time he spent with Elizabeth. The defendant announced a schedule for a time with Wanda and a time to rape Elizabeth. That was the celestial revelation. In California, Wanda complained again. A new revelation. The defendant would rape Elizabeth and ejaculate into Wanda. Another celestial revelation again.
He contemplates about alcohol. Then comes another revelation. What does this revelation say? Wanda and Elizabeth, no more alcohol for you. The same thing happened for drugs.
These revelations had nothing to do with religion. These revelations were during the time of a kidnapping. All those revelations had to do with more rape and more alcohol and more for what he wanted.
The defendant's conduct at 9, 10 years of age were merely foreshadowing of the defendant's conduct in the future. The video in San Diego shows this bumbler, this Inspector Clouseau, fooled the entire criminal justice system, including the judge and a public defender. To think that "Michael Jensen," who had been sober for 22 years, had fallen off of the wagon and was staying with friends in San Diego and promised something like this would never happen again.
I guess he was being honest there when he told the judge that nothing like this would happen again, this being breaking into a church, not the continued rape and kidnap of Elizabeth Smart.
Given Officer Troy said he would go in and out at the Utah State hospital, get his needs met the way he wanted to get needs met.
David Talley felt like he was religious when he got what he wanted. Judith Fuchs recalls him asking for more buttered popcorn or stealing cookies, said he put on a show better than any in Cedar City. Like his mother's letter and Doug ... Detective Durando said he begins to sing at the threshold of this door. He stops singing when gets to the room where he can watch this trial. Why the difference? Why start when gets to the door, and stop when he gets to a place where he can watch?
Why? Because you the jury are not here when in this matter, as well as any courtroom spectators, when he exits, he wants to make sure you hear him sing. You heard testimony about how difficult it is for mental health experts to resolve the issue of falsity of an idea when it embeds itself in idea of spirituality or faith. Mental health professionals are a very good tool for manipulation in the hands of Brian David Mitchell. For a master manipulator it is the reason. Who we are as individuals, our religious beliefs. It is natural to respect the beliefs of others, not to challenge, not to denigrate. We are a country based on freedom.
[Inaudible]
They gave him money, shelter and food, and he used it to fool professionals. Jon Richey, even mental health professionals like Dr. Whitehead. In an few moments, I'll be seated and the verdict will be in your hands. I wonder if we said enough and if we should have said more, like all jurors you will believe the opposite.
I'll leave you with four images to visualize: That he kidnapped her, and raped her whether following God's commands or burden of conduct.
The first image comes from Wanda Barzee's testimony. His "journey through the land" days, in the hot, humid, sunny climate of Florida. After leaving the Babylon that is New York, in Florida he sheds his religiously significant robes, and insulting Gandhi by dressing like him, he's among those string bikini clothes.
Portions of the time he spent in San Diego jail, sitting cross-legged on the floor, with his beard and long hair, sitting only in thermal underwear, shed his robes. So he was arrested for nothing more than a nuisance.
He was knowingly exposing his package to the women. The defendant said he described his image. [From] the defendant's demeanor, he knew that the woman could see everything and liked what they saw. He seemed very proud of himself when [he] told that story.
The third is this photo, government exhibit 38. The defendant, Wanda and Elizabeth eating Christmas dinner in San Diego, eating [a dinner] served by The Salvation Army. [It's the] time for him to truly be ministering. What's he doing? Eating, not a care in the world, as Wanda and Elizabeth sit next to him with veils over their mouths. Can you imagine Frank de Salvo doing that? Can you imagine Pamela Atkinson, the witness who testified [she] devoted [her] life to help the homeless, in that very situation?
The fourth is Elizabeth's testimony about the very first sex/rape schedule the defendant claims he got from God. That's the one here in Utah. Elizabeth testified that he was alone with her. He was away from camp. [She] testified they were getting some water. It was Wanda's time for sex, not Elizabeth's turn to be raped. The defendant told Elizabeth when they were far way from the camp that he wanted her. He wanted her then and there. She told him, "No, it's not my time, it's Wanda's time." She told him, "You'll be violating the divinely-inspired schedule." How did he respond? "Wanda doesn't have to know, Wanda will never know." Elizabeth's response was that she couldn't hide this fact from Wanda.
This is an important but subtle issue. The defendant must prove not only he suffers from severe mental disease or defect and that he couldn't appreciate the wrongness of his action. This vignette speaks to that second prong. If he couldn't appreciate the wrongfulness of his conduct, why would he tell her that she wouldn't know? Because he knew it was wrong, that it would lead to some adverse consequences. [It] had nothing to do with religion. This episode was all about sex, about rape, about lust. It's a subtle point, but a major point. It's a "You got me" moment.
Special Agent George Dougherty told about [an] interview with the defendant. Agent Dougherty was able to extract admissions from [the] defendant. Once [he] realized [he had] been gotten, what would he say? "You've got me, George." Well, on that day, at that watering place, Elizabeth got the defendant. She got him. He knew right from wrong. He knew it during the time of the kidnapping. A then-14-year-old Elizabeth Smart was able to get him.
Those four images are the ones I want you to hold when deciding whether the defendant held his burden of proof. Those images are worth a thousand words, and we've heard thousands of words.
It tells you Brian David Mitchell is nothing more than a sadist, a pedophile, a narcissist hiding behind robes of self-proclaimed religion, casting them away whenever he finds them inconvenient.
The book should not be titled as the "Book of Immanuel David Isaiah." [It's] the borrowings of Brian David Mitchell, plagiarism of the world's great religious works. He used revelations and priesthood blessings not only to facilitate his crimes, but to justify them. For him, a revelation a day kept Wanda away. For him, it was those revelations during those awful nine months that cooled her anger over his attentions for Elizabeth, his thirst for drugs and alcohol.
Those revelations had nothing to do with God and religion, [but] everything to do with what Brian wanted. He was motivated by nothing more than the lust in his loins and whatever other desires he wished to fulfill. The only ministering, the only need he thought to satisfy from June 5, was the pride of Immanuel. Could he have satisfied this pride in other, less risky ways? I guess so, but that's not what he wanted. He wanted a then-14-year-old Elizabeth Smart. He wanted her from the moment he saw her. For him, it was lust at first sight, and that was the only motive. At the time of her captivity, he fed that pride by raping her — then 14-year-old Elizabeth — kidnapping her from her own bed. The only ritual he practiced was the raping of Elizabeth day in and day out.
As [you] discuss this, keep in mind Tim Mitchell's testimony, [that he] may be using religion to justify his behavior. Couple that with Wanda's statement, "He's a great deceiver." Let that testimony reverberate to the background sound of those four images.
Ladies and gentlemen, this case, after the passage of so much time, the involvement of so many people, the glare of so much attention and the writing and speaking of so many words, is finally, finally where it belongs: With you the jury. It's now yours to take into the privacy and sanctity of the jury room to calmly discuss, deliberate and decide. Your decision will stand as the final verdict in this case. We are asking you to find him guilty of count one, [the] kidnapping of Elizabeth Smart. The United States is now asking you to find [him] guilty of count two, transportation across state lines for illegal sexual purposes.