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Big Impact in Justice, Trials, & Forensic Science Frontiers in The Forensic Panel's Memorable 2019


From Complex Death Investigation to Defining Criminal Maturity, the Cutting Edge of Multiple Specialties is the Everyday

New York – In a practice that continues to redefine the highest standards in forensic psychiatry, neuropsychology, and medicine, 2019 witnessed numerous memorable achievements and outcomes in a range of criminal and civil litigation and on the broader justice system.


Highlighting the year was The Forensic Panel’s multi-disciplinary re-examination of the state of the science of criminal maturity and how it is best applied to evidence-based criminal sentencing. The findings of this groundbreaking work are already informing multiple proceedings involving the sentencing of convicted killers.


Since 2003, three United States Supreme Court rulings have sparked significant re-examination of the evolving brain and its reflection in adolescent and young adult criminal decision-making and the deviance potential of that age group of killers. Presumptions about neurodevelopment and forensic mental health fueled by theorists have for years avoided scrutiny of their scientific merit. A number of these theories have been promoted as settled science by advocates invested in significantly shortening the sentences of convicted killers on the grounds that as adults, they are not the same as they were when younger.


Commissioned by Maricopa County (Phoenix), Arizona state attorneys, The Forensic Panel brought together eight nationally respected specialists in diverse specialties – forensic psychiatry, psychology, neuropsychology, adolescent development, juvenile corrections, neuroimaging, and criminal justice, to scrutinize the science underlying verdicts in Miller v. Alabama (2012), Graham v. Florida (2010), and Roper v. Simmons (2005).


The resulting landmark 142 page report examined the domain of scientific issues fundamental to age, crime, what is known about how people change as they advance through teenage years and into adulthood, why these changes take place, the role of neurobiology and other factors on one’s development and criminality, and what signifies maturity as it relates to violent crime and in particular, murder. Above all, the report presents a blueprint for individualized assessment of juvenile and young adult homicide offenders that informs evidence-based decisions on culpability and whether crimes reflect transient immaturity or irreparable corruption. These findings are now being applied in ongoing cases to assist fairness in sentencing.


The Panel’s chairman Michael Welner, M.D., a Clinical Professor of Psychiatry at Icahn School of Medicine at Mt. Sinai and the report’s lead author, noted “Our findings referenced the array of available research from a range of pertinent disciplines. We are further informed by diverse experience with juveniles who mature beyond violent criminality to law abiding paths, as well as those who destroy the lives of others as adults as they did when younger. Some violent crimes reflect upon the immaturity of the offender, while other offenses embody sophisticated predatory deviance.”


2019 was also a year of key participation by The Forensic Panel in inquiries of death in police custody and complex death investigation. In one such case in California, a case ruled as a death by auto-erotic asphyxiation presented to The Forensic Panel for both a pathology reinvestigation and psychological autopsy.


Forensic pathologist Marcella Fierro, M.D., conducting a peer-reviewed examination of the death scene and pathology evidence, disputed the finding of an accidental death. And the psychological autopsy, assessed by a multidisciplinary team of psychiatry and forensic nursing led by Dr. Welner, concluded that risk factors of suicide were negligible.


With convergent data from pathology and psychiatry pointing to murder, the police agency re-opened the case and is now reinvestigating the case as a homicide. What was originally dismissed as the self-destructiveness of a flamboyant personality is now being properly considered for the evidence of a staged homicide, conducted by others who had motive and means to financially exploit his death.


Noted Dr. Fierro, “The convergence of pathology and psychiatry in ambiguous death investigation is a great asset to valid, reliable assessment.


In trial work of more public record, The Forensic Panel impacted criminal sentencing in significant fashion. For example, criminal defense attorney Hon. Barry Kamins won a reversal in the New York State Appellate Court of a depraved indifference murder verdict in the case of People v. Martin. Kamins and co-counsel John Esposito consulted The Forensic Panel about whether the events of the crash of a car that ran over pedestrians on a sidewalk while being recklessly operated reflected the mental state of depraved indifference to human life.


The Forensic Panel’s evaluation accounted for the defendant’s diverse drug and prescription medication usage and their effects historically, and the timing of ingestion and metabolism of each agent.


In an affidavit filed in the appeal, The Forensic Panel explained its conclusions of what particular agent was impacting the defendant at the time of the crime, and how vehicular crash reconstruction and witness statements illustrated the effects of the drug. Closer scrutiny of this pertinent history and metabolic profiles of the drugs ingested were critical to understanding his mental state, and to whether it reflected depraved indifference to human life. The Forensic Panel’s affidavit supported the defense appeal for a rehearing on whether such a mental state existed, and the Court granted that appeal.


The intersection of toxicology, psychiatry, and neuropsychology proved pivotal in another criminal case in which The Forensic Panel acted as lead mental health consultants to prosecutors. Andrew Magill was charged with murder in the near-beheading of a ranch caretaker in rural central New Mexico. The evening’s drama further heightened when Mr. Magill, detained in an emergency room, seized the sidearm of an officer who was watching him and then shot and wounded that officer.


After scrutinizing the available evidence, testing conducted by defense witnesses, input from many witnesses, and lengthy videotaped interview of the defendant, The Panel’s primary examiner concluded that Mr. Magill was experiencing drug-induced psychosis at the time of the killing and the later attack on an officer.


The defendant represented that he would proceed to trial using a mental health defense. However, Mr. Magill dropped his insanity defense and pleaded guilty after The Forensic Panel’s report was released. This is consistent with The Panel’s long-recognized track record for assisting resolution of cases prior to trial or proceedings.


Another scientific dispute that resolved before trial was civil litigation brought by the estate of a victim killed by a former U.S. serviceman. The lawsuit targeted the Department of Veteran’s Affairs for its alleged mistreatment of the killer’s mental health conditions, spanning a period leading up to the fatal encounter occurred in Alaska, where he was living at the time. Records, however, erratically tracked the serviceman’s course through an itinerant lifestyle.


Psychiatrist Joseph Merlino, M.D. examined the diagnosis and psychiatric care afforded the plaintiff as a lead examiner consulting to defense attorneys from the Alaska United States Attorney’s Office. His report and input was instrumental in the Court eventually dismissing the case on summary judgment.


Of the experience, Dr. Merlino noted, “Based on my experiences over the years in working with The Forensic Panel, such outcomes do not surprise me. The nature and integrity of The Panel’s prospective peer review, and the caliber of my colleagues who infuse insight and discipline to the forensic evaluation, consistently lead to an impressive, comprehensive assessment and report of the highest quality.”


At the other end of the homicide spectrum, The Forensic Panel was the lead mental health consultant to federal prosecutors in the South Carolina murder trial of Brandon Council. Council, who killed two employees in a bank robbery, attempted through legal maneuvering to introduce a range of mental health witnesses in defense. The Forensic Panel’s consultants from three different specialties included Dr. Matt DeLisi, Professor of Criminal Justice at Iowa State University, a nationally renowned expert in risk assessment. “In terms of early emergence of conduct problems, sustained and versatile criminal offending and capacity for serious violence, the life history of certain offenders almost perfectly aligns with the science on career criminality,” explained Dr. DeLisi. “The process of capital litigation informs prognosis when history gathering is complete and unguided, including data that is history gathering, and is thorough and unguided by selectivity or bias.” After The Forensic Panel was disclosed by prosecutors, the defense team withdrew their proferred expert witnesses, and presented a mitigation that invoked no mental health focus. The defendant was convicted and sentenced to death.


Dr. Welner noted, “At The Forensic Panel, we feel that by reaching objective, diligent, evidence-driven medical certainty, we are promoting settlements spurred by both sides. Peer-reviewers bring their world-class expertise to the oversight of their colleagues, knowing that the end-point of our work is to produce findings that reflect a definitive understanding where the evidence allows – whether it is the report alone, or in the testimony to come. In our experience, whether it is proceedings, trials, arbitration, or settlement negotiations, we are consulting to one party, yes, but we feel we are informing the court and all parties. These resolutions reflect all sides’ appreciation of the work we have put in to providing a Last Word that withstands scrutiny and attack. Authenticity has a way of cutting through the emotion and theatricality of argument.”


In 2019, The Forensic Panel also consulted on numerous other criminal and civil cases with delicate issues at the intersection of law and forensic science. These included the successful federal prosecution of NXIVM leader Keith Raniere in connection with a range of exploitation, civil litigation surrounding “grooming” behaviors, investor and testamentary competency questions stemming from various forms of undue influence, as well as international terrorism in the name of ISIS and other Islamist entities. The practice’s long track record in disputed confession matters continued, and this year led to case consultation in a new frontier of wrongful conviction-related litigation – false guilty pleas.


Dr. Welner, noting the range of The Forensic Panel’s cases in which society’s dilemmas present, observed, “Just as the seemingly daunting challenge of a rapidly evolving knowledge base in mental health, medicine, forensic pathology and toxicology tests clinical practice, it tests courts who make decisions that affect many rather than the one. Our knowledgeable, thoughtful, and honorable specialists approach these puzzles with a diligence and intensity that engenders confidence that we will get to the bottom of a confusing story and how the sciences explain the evidence – wherever the trail leads. And their peer review makes everyone around them better. I congratulate my colleagues in The Forensic Panel on a tremendous year and wish everyone luck in the cases currently on our plates. We will continue to raise the industry standard for the best in forensic assessment.”