IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION. UNITED STATES OF AMERICA, : CASE NO. 2:08CR00125 DAK Plaintiff, INTRODUCTION

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1 BRETT L. TOLMAN, United States Attorney (#8821) RICHARD N.W. LAMBERT, Assistant United States Attorney (#3971) Attorneys for the United States of America 185 South State Street, Suite 300 Salt Lake City, Utah Telephone: (801) IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, : CASE NO. 2:08CR00125 DAK Plaintiff, : vs. BRIAN DAVID MITCHELL, Defendant. : : : RESPONSE TO DEFENDANT'S MOTION TO EXCLUDE WRITINGS BY ERVIL LEBARON AND EXPERT TESTIMONY BY RICHARD FORBES AND DANIEL PETERSON JUDGE DALE A. KIMBALL : INTRODUCTION The Defendant in his Motion to Exclude objects to the introduction of Ervil LeBaron's "The Book of the New Covenant" as evidence in the upcoming competency hearing, and to the testimony of Richard Forbes and Dr. Daniel C. Peterson. The Defendant argues that the evidence is irrelevant under Rule 401 FRE, and that even if relevant, the proffered evidence should be excluded under Rule 403 FRE. Firstly, the Government does not intend to introduce "The Book of the New Covenant" in its entirety, rather we anticipate Richard Forbes will testify to certain similarities between the Defendant's writings and beliefs and those of Ervil LeBaron and his followers. Only in this

2 regard will writings and spoken views of LeBaron be referenced. Secondly, it is the Government's position that Drs. DeMier, Golding and Skeem have seriously misjudged and misunderstood the content and context of the Defendant's religious thinking and writing. These incorrect views anchor Dr. DeMier's opinion, as well as Drs. Golding's and Skeem's, that the Defendant's religious thinking is 'bizarre' and 'delusional', not just extreme or mistaken. While settling the issue of whether the Defendant is delusional by no means ends the inquiry into his competence, because the defense attaches so much significance to it the Government has every right to question this conclusion. Richard Forbes and Daniel Peterson have the experience and expertise (CV's attached as Exhibits A & B) to put the Defendant's religious thought and pretensions into a cultural and religious context. As such, their testimony is relevant under Rule 401 FRE. The testimony of Forbes and Peterson will not be lengthy or in any way cause delay or waste time nor will it confuse the issues. Rather it will bring clarity to an understanding of the Defendant's religious views and should not be excluded under Rule 403 FRE. RESPONSE The Defendant, in his Argument, gives as his first reason to exclude: The Government misunderstands and misapplies the technical term "bizarre." (Defendant's Memorandum in Support of Defendant's Motion to Exclude Writings by Ervil LeBaron, p.5, hereinafter referred to as Defendant's Memo). In support of this claim the Defendant argues: While it is true that Mr. Mitchell, like Mr. LeBaron before 2

3 (Defendant's Memo p. 7) him, composed a lengthy document with scriptural language and religious themes, and that both men may have relied on those documents in one form or another to justify their behavior. However, whether other fringe groups or individuals share similar delusions as Mr. Mitchell is irrelevant to the finding by Dr. DeMier that Mr. Mitchell's specific beliefs are "bizarre" as that word relates to a psychological diagnosis. Further, even if Mr. Mitchell's beliefs were found to be "non-bizarre," such as finding would not have any effect on the determination of Mr. Mitchell's competence to stand trial. The defense begins its argument with the wholly unsupported assumption that "other fringe groups and individuals may share 'delusional' beliefs" with the Defendant. 'Delusional' is a term of art to describe a psychotic condition that the defense would have the Court believe the Defendant suffers from. On what evidence does the defense rely for its conclusion that the beliefs of "fringe groups and individuals" such as Ervil LeBaron, his followers, and other variants of mainstream Mormonism are "delusional," i.e., the product of severe mental illness? None. Are they saying that because Mitchell holds the same type of beliefs, those of others are ipso facto delusional? The very point of the testimony of Richard Forbes and Daniel Peterson is to demonstrate that Mitchell's religious expression is not 'bizarre' when viewed within context, and that Dr. DeMier's view to the contrary is mistaken. The Defendant's further assertion from the argument quoted above is that even if Mitchell's beliefs were to be found to be non-bizarre, "would not have any effect on the determination of Mitchell's competence to stand trial." (Memo, pg. 5) This claim like the first is without support. The conclusion of Dr. DeMier, and others, finding the Defendant incompetent, is based in large measure on a determination that the Defendant is 'delusional.' As the quotation 3

4 below demonstrates, for DeMier the further diagnosis of paranoid schizophrenia is dependant on a finding that the Defendant's religiously based delusions are bizarre. The Case for Schizophrenia Mr. Mitchell's clinical presentation does not fit neatly into any single diagnostic category. His most prominent symptoms are his delusional beliefs. He is preoccupied with these wellentrenched beliefs, they appear to cause him significant distress, and they have led to a drastic decline in his ability to function effectively in society. The essential diagnostic criterion for delusional disorder is the presence of non-bizarre delusions. As discussed above, however, I perceive his delusions to be bizarre in nature. The essential diagnostic criterion for schizophrenia is the presence of at least two psychotic symptoms from the following group: delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, and negative symptoms (symptoms characterized by a marked deficit in cognition, affect or volition). However, there is a caveat that only one symptom is required if the delusions are bizarre in nature. The defendant has bizarre delusions, so a second symptom is not required for diagnosis. (Dr. DeMier's Forensic Psychological Report, pg. 32, hereafter referred to as the Forensic Psychological Report) DeMier's diagnosis then rests on two conclusions: (1) that Mitchell's beliefs are delusional and (2) that they are bizarre. If Mitchell is not 'delusional' then a diagnosis of either delusional disorder or schizophrenia cannot survive, and without a substantiated diagnosis of mental disease or defect a finding of incompetence cannot be made. (Title 18 U.S.C (a)) As a result, DeMier devotes almost his entire Clinical formulation (Forensic Psychological Report, pages 30 through 35) explaining and justifying his evaluation of Mitchell as suffering from bizarre religiously based delusions leading to the diagnosis of paranoid schizophrenia. 4

5 After making his case for schizophrenia he takes pains to counter several possible contrary views: that the Defendant is malingering, that he has a personality disorder, and that there is a "cultural explanation" for the Defendant's beliefs and behaviors. If DeMier didn't recognize "a cultural explanation" as a potential explanation for the Defendant's views he wouldn't have made the effort to address it. DeMier begins his case against a cultural explanation as follows: Dr. Gardner argued that Mr. Mitchell's illness is best conceptualized as consistent with accepted cultural beliefs. I do not believe this to be true. Certainly, his beliefs are in conflict to the mainstream LDS church. Moreover, I am unaware that his beliefs are shared by any fringe or radical element of that (or any other) church. The defendant's beliefs cannot be easily understood simply by contemplating them within the appropriate cultural context. (Dr. DeMier's Forensic Psychological Report, pg. 34, emphasis added.) When Dr. DeMier says he is unaware of any fringe or radical elements of any religious groups that share Mitchell's religious beliefs or have beliefs similar to Mitchell he is undoubtedly sincere but inadequately informed. It is to this very point that Richard Forbes will testify. He will show that there is a cultural explanation for Mitchell's views. Dr. Peterson, an authority in religious texts within a Judeo-Christian and Mormon tradition, will speak to the coherency of Mitchell's writings and the source material from which Mitchell's core religious statement, the Book of Immanuel David Isaiah (BIDI), is drawn. The testimony of these witnesses inform and support the conclusions of Drs. Welner and Gardner that the Defendant is competent and not delusional or psychotic. 5

6 The ease with which an incorrect inference may be drawn when one is unfamiliar with context is exemplified by Dr. DeMier's citing a reference in the BIDI as evidence that Mitchell believes he has powers greater then God or that he can control God. (Dr. DeMier's Forensic Psychological Report, pg 31-32) He states: Moreover, some of his writing suggest that he has powers that are greater than God's, or that he will control God. Specifically, near the end of "The Book of Immanuel David Isaiah," he writes, "Behold, thou art Immanuel, and I am God.... And behold, if ye shall say that God shall smite this people, it shall come to pass." This suggests that he believes he will be able to direct God's actions, a belief which is easily classified as grandiose. (Forensic Psychological Report, p. 32) The portion to which Dr. DeMier refers is found on page of the BIDI. It reads as follows: And now behold, Immanuel, my son, because thou hast been faithful unto me in crying repentance unto this people in this Great City of Salt Lake and in all the land and cities around about, even as Nephi, the son of Helaman, did cry repentance unto that Great City of Zarahemla and in all the lands and cities around about, I say unto thee: Blessed art thou Immanuel, my son. Yeah, even I shall bless thee even as I blessed Nephi, the son of Helaman. Blessed art thou, Immanuel, my son, for thy exceedingly great faith in the words of all the my holy prophets who have gone before thee, and in thy obedience to all the promptings of the Holy Spirit which I have given into thy heart, and for all those things which thou hast done in great faith and obedience throughout this great land of promise; for I have beheld how thou hast with unwearyingness declared the word, which I have given unto thee, unto this people, And thou hast not feared them, and hast not sought thine own life, but has sought my will, and to keep my commandments. And now because thou hast done this with such unwearyingness, behold, I will bless thee forever; and I will make thee mighty in word and in deed, in faith and in works; yea even that all things shall be done unto thee according to thy word, for thou shalt not ask that which is contrary to my will. Behold, thou art Immanuel, and I am God. 6

7 Behold, I declare it unto thee in the presence of mine angels, that ye shall have power over this people, and shall smite the earth with famine, and with pestilence, and destruction, according to the wickedness of this people. Behold, I give unto you power, that whatsoever ye shall seal on earth shall be sealed in heaven; and whatsoever ye shall loose on earth shall be loosed in heaven; and thus shall ye have power among this people. And thus, if ye shall say unto this temple it shall be rent in twain, it shall be done. And if ye shall say unto this mountain, Be thou cast down and become smooth, it shall be done. And behold, if ye shall say that God shall smite this people, it shall come to pass. And now behold, I command you, that ye shall go and declare unto this people, that thus saith the Lord God, who is Almighty; Except ye repent ye shall be smitten, even unto destruction. Amen. A reader familiar with Mormon scripture would immediately recognize, as the BIDI itself indicates, that this as an almost direct quote from Helaman in the Book of Mormon where God commends the prophet Nephi in the following passage: Blessed art thou, Nephi, for those things which thou hast done, for I have beheld thou hast with unwearyingness declared the word, which I have given unto thee, unto this people. And thou hast not feared them, and hast not sought thine own life, but hast sought my will, and to keep my commandments. And now, because thou hast done this, with such unwearyingness, behold, I will bless thee forever; and I will make thee mighty in word and in deed, in faith and in works; yea, even that all things shall be done unto thee according to thy word, for thou shalt not ask that which is contrary to my will. Behold, thou art Nephi, and I am God. Behold, I declare it unto thee in the presence of mine angels, that ye shall have power over this people, and shall smite the earth with famine, and with pestilence, and destruction, according to the wickedness of this people. Behold, I give unto you power, that whatsoever ye shall seal on earth shall be sealed in heaven; and whatsoever ye shall loose on earth shall be loosed in heaven; and thus shall ye have power among this people. And thus, if ye shall say unto this temple it shall be rent in 7

8 twain, it shall be don. And if ye shall say unto this mountain, Be thou cast down and become smooth, it shall be done. And behold, if ye shall say that God shall smite this people, it shall come to pass. And now behold, I command you, that ye shall go and declare unto this people, that thus saith the Lord God, who is the Almighty; Except ye repent ye shall be smitten, even unto destruction. (Book of Mormon, Helaman 10:4-11) In context it does not carry the meaning of being greater than God or controlling God, as DeMier has concluded. In the heading of its second major point of his Argument the Defendant states: Classification of whether Mr. Mitchell's beliefs are "bizarre" is relevant to the specific diagnosis of schizophrenia but not to the issue of competency. Dr. DeMier's report makes clear that the classification of Mr. Mitchell's delusions as "bizarre" or "non-bizarre" has no direct bearing on the finding of competency, but rather to the specific diagnosis of schizophrenia. If, as the Government believes, Mr. Mitchell's beliefs are more accurately classified as "non-bizarre," Dr. DeMier's diagnosis would necessarily default into another diagnosis, possibly delusional disorder. This diagnosis would then be consistent with those reached by Dr. Stephen L. Golding and Dr. Jennifer Skeem, both of whom evaluated Mr. Mitchell for competence and also found Mr. Mitchell incompetent to stand trial. (Defendant's Memo, p. 7) In effect, the defense is saying, "Don't worry if DeMier is wrong in his diagnosis of Mitchell because there is a 'default' position, the diagnosis of 'delusional disorder' which will be just as serviceable to the Court." They argue that because the diagnosis "has no direct bearing on the finding of competence," no need exists to bring in witnesses like Forbes and Peterson to challenge the basis of DeMier's competency findings. 8

9 There are many things wrong with this flawed analysis. Firstly, it does matter if DeMier is wrong in his diagnosis. Certainly, an evaluator who is wrong about something so basic as the nature of the underlying illness may be viewed skeptically as to his ultimate conclusion that Mitchell is incompetent. Impeachment of an expert witness is proper on any of his observations, findings and conclusions. Further, contrary to what the defense suggests, a correct diagnosis of mental illness does have a direct bearing on competency, as Dr. Welner's report makes very clear. The Defendant was perceived by many staff members at the State Hospital as unique among the patients in that he was extremely high functioning. He displayed a clear grasp of his legal situation. His choice of reading material reflected a breadth and depth of intellect. His choice of movies was generally very mainstream. His skill in chess and avoidance of clinical assessment demonstrated his tactical ability. His sense of humor and insight into his legal predicament were manifest. His success at avoiding apprehension was remarkable. His skillful and cunning appearance before Court in San Diego County, and earlier stipulated competence showed his ability to assist counsel. This history has left experts like DeMier stretching to find a diagnosis of severe mental illness. The defense apparently concedes Mitchell fully understands the nature of the charges against him. It is only because of alleged inability to assist in his defense resulting from impairment by a severe mental illness, as manifest by delusions, that the defense claims him to be incompetent. If he is not suffering from a severe mental illness - as contrasted with a personality disorder such as narcissism, pedophelia, psychopathy, etc, - then he is not 9

10 incompetent, whatever else he may be. When the Defendant argues that if DeMier is wrong in his diagnosis the Court can accept a "default" diagnosis, it is asking the Court to create a reliable diagnosis, where none exists. CONCLUSION Because the Defendant's claim of severe mental illness hangs by the tenuous thread of calling the Defendant's religious views not just odd, mistaken, or extreme but 'delusional,' any testimony that explains or puts in perspective those views is highly relevant and should be admitted. The testimony of Forbes and Peterson does just that. Additionally, Dr. Welner relied on information derived from both Forbes and Peterson in his Report to the Court. Rules 401 and 403 are Rules of inclusion (see U.S. v. Naranja, 710 F.2d at 1469, 10th Cir. 1983). The Defendant has made no showing that the proffered testimony, relevant as it is, would cause confusion, delay or waste of time of the Court. The Government, therefore, urges the Court to deny the Defendant's Motion to Exclude. TH DATED this 28 day of September, BRETT L. TOLMAN United States Attorney /s/ Richard N.W. Lambert RICHARD N.W. LAMBERT Assistant United States Attorney