Tuesday, December 8, 2009

"Legal pointillism": New approach to competency

First-hand account by witness against Brian David Mitchell

Competency to stand trial focuses on a different time frame than insanity and many other psycholegal constructs. We want to know the defendant’s present state of mind, not what he was thinking or doing in the past. Is he capable of understanding the legal proceedings at this point in time (and in the near future), and assisting his attorney on his own behalf?

But at the competency trial of Elizabeth Smart kidnap suspect Brian David Mitchell, the prosecutor is expanding the traditional scope of competency to encompass the defendant’s entire life, in a technique being labeled "legal pointillism." As he reportedly told an assembly of his witnesses this week:
Each of you has a dot to contribute. (Mitchell) wants us to be close, to just see the dots. We're standing back and viewing the big picture.
This strategy means bringing in a whopping 29 witnesses, including people from Mitchell's distant past who have no direct knowledge of his current mental state. Among these is Alysa Landry, a news reporter for the Daily Times of Farmington, New Mexico. She knew Mitchell for about five months in 1997, when the kidnap suspect lived at a home that prosecution expert Michael Welner labeled as "an al-Qaeda training ground for fundamentalist Mormons."

In a rare first-person account of such an experience, Landry says she underwent about 10 hours of questioning by attorneys, psychologists, and detectives in preparation for this week's testimony.

Finally, the moment of her testimony arrived:
I told of the mind games, power struggles and escalating violence in the house. I also told of Mitchell's self-important and demeaning attitudes and his mission to reinstate the laws of polygamy and consecration, both of which were abandoned during the church's early history.

I waited 12 years for someone to listen to my story, but I was not prepared for the vulnerability or isolation I felt after testifying…. Immediately after stepping from the witness box Tuesday, FBI agent Eric Lerohl asked me again if I was OK. I wasn't. My breath was quick and my fingers were beginning to spasm from lack of oxygen....
The pointillism strategy seems to go as follows: Mitchell is evil. Ergo, he is malingering psychosis. Ergo, he must be competent. We'll have to see if it flies. If so, expect to see it again soon, in a courtroom near you.

Landry's full account, "From cult to witness chair," is HERE. Background on the case is HERE.

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