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Case 2:08-cr-00125-DAK Document 420

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STEVEN B. KILLPACK, Federal Defender (#1808) ROBERT L. STEELE, Assistant Federal Defender (#5546) WENDY M. LEWIS, Assistant Federal Defender (#5993) PARKER DOUGLAS, Assistant Federal Defender (#8924) AUDREY K. JAMES, Attorney at Law (#9804) UTAH FEDERAL DEFENDER OFFICE 46 West Broadway, Suite 110 Salt Lake City, Utah 84101 Telephone: (801) 524-4010 Facsimile: (801) 524-4060 Counsel for Mr. Mitchell ________________________________________________________________________ IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. BRIAN DAVID MITCHELL and WANDA EILEEN BARZEE, Defendants. DEFENDANT’S OBJECTION TO GOVERNMENT’S NOTICE OF EXPERT TESTIMONY OF DR. DANIEL CARL PETERSON AND MOTION IN LIMINE TO EXCLUDE ALL OR PORTIONS OF DR. PETERSON’S TESTIMONY Case No. 2:08 CR 125 DAK

Pursuant to rules 401 and 702 of the Federal Rules of Evidence, counsel for Mr. Brian David Mitchell submits this objection to the government’s notice of expert testimony of Dr. Daniel Carl Peterson, and motion to exclude all or a vast portion of his proffered testimony on the grounds that it is not relevant as rebuttal evidence and/or Dr. Peterson is not qualified as an expert to opine on the topics listed by the government.

Case 2:08-cr-00125-DAK Document 420

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Yesterday, the government filed notice of its intent to call Dr. Peterson as an expert in its rebuttal case at trial, and stated that it expected Dr. Peterson to provide expert opinions regarding his analysis of the Book of Immanuel David Isaiah (BIDI), his impressions of the defendant’s mental state based on the defendant’s writing of the BIDI, and his response to Dr. DeMier’s opinions regarding the defendant’s purported religious views. Dr. Peterson’s opinions are expected to be similar, but not limited to those he rendered at the competency hearing. Dr. Peterson is also expected to provide expert testimony regarding some of the religious topics that have arisen at trial, including but not limited to: revelation, ministering, living without purse or script, blessings, miracles, resurrection, priesthood, [sic?] authority, keys, dispensations, pilgrimages, handcarts, polygamy, fundamentalist and fringe LDS groups and some of their beliefs, and examples of commands from God. Doc. # 417 at 1-2 (emphasis added). In earlier proceedings this Court held clearly that: “It is undisputed that Peterson cannot make a mental health finding but, as an expert in Judeo-Christian religious texts, he can opine on the readability of the text. A mental health professional is not required for such comparisons. Peterson is not making a mental health diagnosis in testifying as to the coherency of the writing in general.” Memorandum Decision and Order dated November 16, 2009, Doc. # 168, at 9 (emphasis added). Indeed, in earlier testimony at the competency hearing in this matter Dr. Peterson admitted as much. See Transcript of Proceedings of Competency Hearing, November 30, 2009, Vol. 1, at 109, lns. 10-16. As such, Dr. Peterson is unable opine on “impressions of the defendant’s mental state based on the defendant’s writing of the BIDI” in any way that assist the trier of fact under Federal Rule of Evidence 702 or that would be relevant as rebuttal testimony “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the 2

Case 2:08-cr-00125-DAK Document 420

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evidence” under Federal Rule of Evidence 401. To the extent that the government is offering Dr. Peterson’s testimony as evidence of “coherence” in mental state rather than diction or grammar, Dr. Peterson does not possess the requisite expert qualifications. To the extent that he might offer testimony regarding the “coherence” of the BIDI’s diction or grammar, he is not relevant as a rebuttal witness as those issues have not been raised in Defendant’s case. Defendant has raised no evidence or offered any argument regarding the BIDI’s “readability.” Regarding other possible issues related to the BIDI, the jury has heard fairly clear testimony from Ms. Barzee and some others on how the BIDI was put together, and it is unclear how Dr. Peterson is offered to rebut that testimony in any relevant manner and therefore the government has not offered any reason why Dr. Peterson’s purported expertise would be relevant or assist the finder of fact in this instance. With respect to the other topics upon which the government seeks to have Dr. Peterson opine, such as “revelation,” Dr. Peterson’s testimony is also not relevant as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence[,]” Fed. R. Evid. 401, as defense counsel has not advanced any evidence that Mr. Mitchell had actual revelations about which Dr. Peterson may or may not be qualified to opine, but that Mr. Mitchell had delusions of such revelations. Similarly, to the extent that the government has offered no evidence that Dr. Peterson is an expert in discerning either actual or delusional revelation, he is not qualified to opine on such topic as an expert under Federal Rule of Evidence 702 and federal caselaw

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interpreting that rule, and he is not alleged to have actual knowledge of Mr. Mitchell’s experience of revelation. Dr. Peterson’s proposed testimony regarding “ministering, living without purse or script, blessings, miracles, resurrection, priesthood, authority, keys, dispensations, pilgrimages, handcarts, polygamy, fundamentalist and fringe LDS groups and some of their beliefs, and examples of commands from God[,]” id., are similarly irrelevant as rebuttal and/or he lacks expertise to opine on such topics. No direct testimony has been offered regarding living without purse or script or resurrection. No evidence of non-delusional ministering, blessings, miracles, priesthood authority, keys, dispensations, pilgrimages or commands from God have been offered into evidence. Defendant is raising an insanity defense, not a divinity defense, which is not recognized in law and, as such, testimony regarding sanctioned or recognized practices would be irrelevant to these proceedings and/or expert testimony regarding actual practices, to the extent Dr. Peterson is qualified to opine on such practices, would be more likely to confuse rather than assist the trier of fact under the circumstances under Federal Rule of Evidence 702. Finally, the government has offered nothing to suggest how Dr. Peterson is an expert on pilgrimages or handcarts, and so it is unclear how his testimony on such topics would be relevant as rebuttal or how he is qualified to testify on such matters. CONCLUSION For these reasons, the Court should exclude in totality, or severely limit the scope of, Dr. Peterson’s proposed testimony to matter related to actual rebuttal.

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DATED this 1st day of December, 2010. / s / Parker Douglas PARKER DOUGLAS Assistant Federal Defender / s / Robert L. Steele ROBERT L. STEELE Assistant Federal Defender

CERTIFICATE OF DELIVERY I hereby certify that on the 1st day of December, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Carlie Christensen United States Attorney Felice J. Viti Assistant United States Attorney David F. Backman Assistant United States Attorney Diana Hagen Assistant United States Attorney Alicia Cook Special Assistant United States Attorney

/ s / Parker Douglas Utah Federal Defender Office

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