The second competency hearing for accused Elizabeth Smart kidnapper Brian David Mitchell is scheduled to resume Friday.
The hearing comes on the eve of the second anniversary of when Mitchell, now 51, and his wife Wanda Barzee, now 59, were found walking along State Street in Sandy with Smart, who had been missing for nine months and presumed by most people to be dead.
Since that time, the court proceedings against Mitchell have moved at a snail's pace.
Barzee was ruled to be incompetent to stand trial by 3rd District Judge Judith Atherton on Jan. 9, 2004. Mitchell's first competency hearing was delayed by a series of motions and appeals.
He was eventually ruled competent to stand trial Aug. 31, 2004, after the defense eventually decided to waive his competency hearing.
The next day, a state grand jury indictment of both defendants that had been kept secret for a year was unsealed. The indictment charged both with aggravated kidnapping, two counts of aggravated sexual assault, two counts of aggravated burglary and conspiracy to commit aggravated kidnapping. All of the charges are first-degree felonies except for the last, which is a second-degree felony.
But following what the defense characterized as increasingly delusional behavior by Mitchell, including a singing outburst in court, Atherton agreed to a second competency hearing.
That hearing began Feb. 16 and has gone longer than expected. During the first two days, the defense called doctors Jennifer L. Skeem and Stephen Golding to the witness stand. Golding was one of the two doctors chosen to evaluate Mitchell for the court. Skeem was hired privately by the defense.
Golding has twice found Mitchell incompetent to stand trial. Skeem, a former student of Golding at the University of Utah, originally found Mitchell competent but then changed her diagnosis following a six-hour interview with him at the Salt Lake County Jail in October.
When the hearing resumes on Friday, the defense will have the opportunity for final questioning of Golding. Then, the Salt Lake District Attorney's Office is expected to call Dr. Noel Gardner to the witness stand. Gardner has twice determined Mitchell is competent to stand trial.
Mitchell's mental capacity
Skeem, a forensic psychologist and an assistant professor of psychology and social behavior at the University of California, Irvine, said her primary diagnosis was that Mitchell suffered from delusional disorder.
"My opinion was, he was situationally incompetent," she said during her testimony in February.
Golding concluded that Mitchell suffers from both a delusional disorder and a paranoid personality disorder. He said he also hadn't ruled out the possibility that Mitchell might also be paranoid schizophrenic.
"What I suspected in the beginning I'm even more convinced of now," he said of his second diagnosis compared to his first.
Skeem is the only one of the three doctors that has had a real conversation with Mitchell. Mitchell has refused to talk to Golding or Gardner, instead choosing at times to simply sing. A lot of that is due to Mitchell's belief that mental health experts are "sorcerers," according to Skeem.
"He views a psychological test as false," she said. "It cannot give the truth."
Skeem said Mitchell does not hear voices. His revelations from God apparently come in dreams. Mitchell also does not have formal thought disorder or disorganized speech, she said.
What the court has yet to hear are arguments from Gardner, who has twice found Mitchell competent to stand trial.
If the arguments presented by prosecutors are similar to what they have been during cross-examination, it's likely they will argue that Mitchell's beliefs aren't unique in Utah.
In a state with fundamental polygamists and families such as the Laffertys, LeBarons and Kingstons, there have been past examples of those with seemingly delusional beliefs, although that didn't mean they were mentally incompetent.
In order to find a person mentally incompetent to stand trial, a judge will look at a list of criteria, including whether the defendant can understand the charges against him, communicate with his attorneys, understand the possible penalties against him, understand his legal options, testify relevantly and have appropriate behavior in court.
Although all factors are considered, all standards do not have to be met in order for a person to be found competent to stand trial.
Delusional vs. zealot
At the center of the competency issue is the question of strong religious beliefs. Just about everything Mitchell does, from the food he eats to the clothes he wears, seems to be driven by his religious beliefs, Skeem said.
The former street preacher and self-proclaimed prophet refers to himself as Emmanuel David Isaiah. When he was arrested, police discovered a 27-page manifesto written by Mitchell. Part of it talked about how Mitchell and Barzee were to take as many as 49 sister-wives.
Mitchell has reportedly been adding to his manifesto and his writings since being incarcerated. He writes about how he is "hated" and "forsaken" and how each night he "floods his pillow with tears," Skeem said.
But Mitchell also has accepted that he must suffer in order to achieve his goals, she said.
"He believes he must sacrifice himself by becoming a complete martyr," Skeem said. "He believes with all his soul he will restore Zion."
Among Mitchell's other alleged beliefs revealed in court:He will one day restore plural marriage.
There will be a great period of destruction, famine and war in the world which has become wicked.
He will be delivered from prison by God in seven years, at which time he'll be reunited with all his wives, including Elizabeth Smart.
Prosecutors have contended, however, that being a religious zealot or believing something that others may not believe does not make a person incompetent.
Many people dedicate their entire lives to religion and are willing to make major changes in their own lives because of religion, but that did not make them delusional, prosecutors argued.
"His religious beliefs and practices are no different than those who practice Mormon fundamentalism," said Brigham Young University law professor Marguerite Driessen in an interview. "His beliefs are such they don't prevent him from knowing right and wrong." Driessen has no role in the proceedings.
But both Skeem and Golding argued, however, that the content of Mitchell's beliefs was not the reason they considered him to be mentally ill.
"I am sure he is beyond religious zealotry," Golding said.
Skeem said what was most striking to her was how Mitchell weaves himself into these beliefs. She said it was the form of his beliefs, not the content, that made him incompetent to stand trial.
Both psychologists for the defense described Mitchell as being super distressed and wound-up.
Golding described it as a kind of conflict going on inside Mitchell's head between himself and his alter ego Emmanuel.
During the hearing it was revealed that Mitchell was apparently close to agreeing to a plea deal that would have ended the case. He even seemed to understand that he could spend a minimum 30 years in prison, Skeem said.
That changed suddenly upon reading a letter from prosecutors in which Mitchell allegedly saw "signs." Mitchell considered language in the letter as "hostile" and concluded that prosecutors had an intense hatred of him and were all in line with Satan, Skeem said.
"Anything that comes from (the prosecution) has 666 written all over it," Golding said.
From that moment on, Mitchell believed his destiny was to become a modern-day Messiah and the trial was to be his crucifixion.
"This is not the Brian David Mitchell we were once talking about," Skeem said.
Even though both doctors said Mitchell was "terrified" of going to trial and "very upset" about the prospect of it becoming an even higher profile media venture than what his case already has been, he has concluded as Emmanuel that he must go through with it, Golding said.
"He is absolutely convinced that he is literally at God's mercy," he said.
Golding suggested that even if all charges against Mitchell were dropped, he would probably still insist on a trial.
"His thinking about his case has changed dramatically," Skeem said.
Right now, Skeem said, Mitchell views his defense team as his "guardian angels." But she said he could have a "revelation" from God at any time to fire them.
The songs
The first time it happened it took everyone in the courtroom by surprise.
On Dec. 3, Mitchell began singing the Christmas hymn, "O Come, O Come, Emmanuel." It resulted in his ejection from the courtroom after he ignored Atherton's order to stop.
Since then, Mitchell's singing has become a regular occurrence and something most courtroom observers now expect at every hearing.
In January he sang, "Repent for the Kingdom of Heaven's at Hand." On day one of his second competency hearing he was quickly removed for singing the LDS hymn "Who's on the Lord's Side?" After being brought back into the room for a second chance to behave, he sang the "Repent" song again and was removed.
Day two of the hearing was equally short for Mitchell after he burst into the LDS hymn "High on the Mountain Top."
Skeem and Golding said the singing is Mitchell's way of soothing himself in stressful situations. Golding further argued that it's Mitchell's way of communicating.
Mitchell has also learned that singing obtains the desired result of being removed from the courtroom, a place he is terrified of and doesn't want to be, according to Skeem.
The way Mitchell shakes his hands while he sings is an indication of how scared he is, Skeem said.
Skeem and Golding have also pointed out that the singing isn't exclusive to court. They said Mitchell has sung for both doctors and FBI agents trying to interview him. He also has burst into song while at the Salt Lake County Jail, mostly between the hours of 10:30 p.m. and 3 a.m., the time when he receives most of his revelations, Skeem said.
Prosecutors, however, believe it's just an act.
"He turns on his list of hymns for the court to hear and then he calmly leaves with a wave of the hand," lead prosecutor Kent Morgan told Atherton.
In cross examination, Morgan pointed out that Mitchell was arrested for vandalism in El Cajon, Calif., on Feb. 12, 2003, during the time Smart was missing. But at that court appearance there was no singing, and Mitchell was even able to deceive the court by telling them his name was Michael Jensen and that he was traveling with is wife and daughter.
"I'm a minister for the Lord," he told the judge before apologizing for breaking into a church, blaming it on a night of drinking.
"The whole night was just a nightmare," he told the judge. "This week in jail has been like Jonah getting swallowed by the whale. It's turned me right around and I know I need to do what the Lord wants me to do with my life."
E-mail: preavy@desnews.com