New York – The Forensic Panel heads into 2018 with a number of complex criminal and civil cases resolved with major verdicts or settlements. Two of the most highly contested cases involved numerous forensic questions brought to The Forensic Panel for analysis. At year’s end, in State v. Renfro, a Coeur d’Alene jury delivered a rare Idaho death penalty verdict to a convicted killer after only a few hours of deliberation.
In response to reports from over ten defense-retained psychiatrists, psychologists, and a pharmacologist from all over the United States, prosecutors retained The Forensic Panel to examine these claims. Forensic psychiatrist Dr. Michael Welner and forensic psychologist Dr. Scott Bender, acting as The Panel’s primary examiners, reviewed and analyzed evidence, conducted videotaped interviews, and submitted findings after the peer reviewed oversight that distinguishes The Forensic Panel’s safeguards of integrity and quality control. Dr. Welner and Dr. Bender operated under conditions of particular adversity created by relaxed disclosure requirements that enabled defense attorneys to repeatedly introduce new arguments with very little explanation, and well beyond set deadlines.
Dr. Welner’s work in Renfro addressed claims focusing on psychopharmacology, methamphetamine, influences to violence, motivation for the crime, diagnostic claims including brain damage, psychiatric syndromes, sleep deprivation, an assortment of trauma and bad background claims, and risk assessment, among others. Dr. Bender’s effort illustrated the absence of brain injury and the misrepresentation of brain imaging data. In the aftermath of the reports submitted by Dr. Welner and Dr. Bender, the defense chose not to call several of their experts to testify, conceding the weakness of those opinions. Prosecutors relied heavily upon the detailed reports of Dr. Welner and Dr. Bender to prepare for presenting the science of their case at sentencing, and for cross examining several defense witnesses that did later testify. In their testimony in the hearings that followed, Dr. Welner and Dr. Bender faced almost no cross examination directed to their reports, demonstrating the fidelity of peer review oversight that ensures the objectivity and scientific integrity of forensic work. The jury ultimately found no merit in the range of forensic mental health claims from the defense, and passed a death verdict after a surprisingly short deliberation. “The most airtight forensic work is only as impactful in court as the attorneys who learn how to use it properly and ethically,” Dr. Welner noted. “Trial prosecutor Dave Robins showed a phenomenal aptitude for both learning the fine points of the numerous areas, and adapting that knowledge to the testimony coming into the case with unusual speed and discernment.”
The Renfro case evoked the pressures and complexity of The Forensic Panel’s work earlier in the year in the Massachusetts capital murder retrial of U.S. v. Gary Sampson. Sampson, a triple murderer, introduced a very broad range of forensic mental health testimony. Like Renfro, Sampson’s attorneys promoted a brain damage defense, using both psychology and neuroimaging. In Sampson, Dr. Welner and Dr. Thomas Guilmette, a neuropsychologist, served as primary examiners. The proceedings were further complicated by challenges by a very experienced defense team that utilized many public-funded attorneys to draft blizzards of motions that rendered forensic examination akin to proceeding in a snowstorm. Furthermore, the original judge, avowedly anti-death penalty, was openly activist in both rulings and public comment, which enabled mental health defenses that were at times fanciful, at other times cynical manipulations of data, and even occasionally simply fabricated – though always well-articulated.
Even in the face of this adversity, and the politically anti-death penalty climate of Massachusetts from which a jury was selected, prosecutors relied heavily on the findings and teaching of The Forensic Panel to effectively cross examine defense witnesses and to utterly decimate forensic mental health claims. In the end, the jury dismissed all of the defense’s mental health claims, in spite of the advantages available to Mr. Sampson, and passed a death penalty verdict.
Reflecting on the above, Dr. Welner added, “Forensic science reform will not be complete without correction of how mental health testimony by capital murder defense experts often misleads juries and the activist judges whose personal anti-death penalty sentiments render them willingly misled. There is no requirement for videotaping interviews, and even in the most high profile cases, the lack of evidence transparency enables defense witnesses to create fictional accounts of convicted killers that bear no resemblance to a scientific method or scientific outcome. Defense teams fight against peer-reviewed oversight that would protect courts from this bad science. As a result, the science is cheapened and manipulated when in the clinical realm, it is scrupulous and respects itself. In Sampson, the jury was able to see enough of the scientific evidence to apply their good judgment. This is a credit to prosecutors Zach Hafer and Dustin Chao, who were outstanding communicators, mastered the science conveyed to them, and very skilled cross examiners, and certainly to the jury itself.”
At the same time as its 2017 work on the most compelling trial prosecutions in America, such as the landmark trial of Etan Patz’s killer, The Forensic Panel and Dr. Welner consulted on a number of cases to criminal defense attorneys, and on cutting edge issues ranging from the assessment of depraved indifference to the consequences of emotional manipulations in “Fifty Shades of Gray” relationships. In this regard, Dr. Welner particularly cited and praised New York-based defense attorneys John Esposito (New Jersey) and Moe Fodeman (New York) for “respect for the science, commitment to properly informing the court, and recognizing that one can honestly defend their client and creatively apply mental health testimony, without deviating at all from science and its limitations. Their rigorous expectations promote a proper defense and justice in the process.”
The Forensic Panel also had a pivotal role in 2017 in numerous confidential civil proceedings, including death investigations, claims involving veterans with complex injury profiles, and claims relating to wrongful police conduct. Time after time, The Forensic Panel’s efforts promoted settlement or simplified cases and shortened trials.
Dr. Welner was particularly appreciative of forensic pathologists Dr. David Fowler, Dr. Marcella Fierro, and Dr. Ljubi Dragovic, the most active and senior of The Forensic Panel’s world class team of medical examiners. Added Dr. Welner, “It is a privilege to chair a practice in which these distinguished colleagues so readily embrace the critical feedback and oversight of their casework in peer review. In turn, they dive into peer review responsibilities with verve and commitment. When work came out of this practice in 2017, it was airtight, at its best quality ever, and reverberated in its impact on the quality of science, the case itself, and the verdicts that resulted. All of us in The Forensic Panel appreciate the continued privilege of tackling the difficult nuances of ongoing highly sensitive litigation from New Mexico to Illinois to here in New York. It is my mission that The Forensic Panel, the best forensic practice in the United States, continues to refine its standards and performance, and it’s pretty clear that in 2017, we achieved that and more. I offer my heartfelt thanks to all of my colleague psychiatrists, psychologists, and physicians for the intellectual tenacity and integrity that everyone brings to their work, and for meeting the expectations I set. The legal community has recognized that with trust and respect. 2018 will be a year of continued groundbreaking efforts from this practice.”
