EVIL, PART THREE: DEPRAVED INDIFFERENCE

In 1995, Steve Fortin pleaded guilty to a savage attack on a female state trooper in Maine. When she stopped to help him and found him drunk, he reacted by breaking her nose, biting her on the left breast and chin, strangling her into unconsciousness, and raping her. Just then her backup arrived and Fortin ran. The other trooper gave chase and caught him. He got 20 years, but that was not the end of his story. New Jersey officials investigating an unsolved case from the previous year heard about the attack in Maine and noted similarities. In Avenel, N.J., Melissa Padilla, a mother of four, had been beaten, robbed, bitten on the left breast and chin, raped, and then strangled. Investigators soon discovered that Fortin had lived in the area at the time of Padilla's brutal murder, had run from abusing his girlfriend at a restaurant near the crime scene, and had committed other violent acts. He was indicted in New Jersey, tried and convicted, and a different jury reviewed evidence for the penalty phase. The defense prepared a psychiatric case for mitigating circumstances, but then took it off the table. Why?

Dr. Michael Welner

"They didn't want us to come in and testify," says Dr. Michael Welner, forensic psychiatrist and founder of The Forensic Panel, a peer-reviewed national practice based in New York. He was satisfied with the ultimate verdict: In January 2001, based on factors that clearly aggravated the brutality of the murder, Fortin received the death penalty. What made Welner's approach so intimidating to the defense? It's likely that his emphasis on behavioral standards, careful corroboration of facts and history, the actual criminal acts, and forensic evidence had something to do with it, as well as his input on what aggravating factors really mean in a capital case.

He ought to know. He's spearheading a nationwide effort to get consensus for the courts from legal, theological, and mental health professionals on the concept of evil or wickedness, in an instrument he calls The Depravity Scale. It may be that some people are just born bad, but when it comes to how the courts deal with the "aggravating factors" or "special circumstances" of certain acts like murder, there's no clear standard by which to judge them. Called cruel, wanton, vile, cold-blooded, outrageous, or monstrous, the actions in question get blurred into subjective imprecision.

"From my own experience consulting as a forensic psychiatrist to both prosecutors and defense attorneys," Welner says, "I see these terms being thrown around in capital and other criminal, even civil and family court cases, and I recognize how difficult it is for a judge or jury - let alone a forensic mental health professional - to try to define them in any consistent and non-arbitrary way. The more I've learned about how these terms are applied and how significant they become during sentencing - for the death penalty, for example - the more I've come to appreciate that what is considered 'heinous," 'atrocious,' and 'cruel' in Oklahoma may be different from what those terms mean in Florida. And a jury in a rural part of Florida may see them differently than a jury in an urban area."

He hopes to change that. "We need consistency, and in particular consistency that reflects the best that forensics has to offer. From my own vantage point of working within the cases, juries and judges don't see near as much as they should be seeing when it comes to forensic evidence about what a person's intent was, what a person actually did, and what a person's attitude was about what he did. Even from a mental health standpoint, there's far more effort devoted to the question of who a person is or why that person did something rather than just look at what the person did."

While "who" and "why" are important, it's time to better assess "what."

On the Depravity Scale, Welner uses what he learned from an examination of 100 recent court cases involving aggravating factors to provide an itemized list of actions, attitudes, and indicators of intent that can help in evaluating the heinousness of a crime. With emphasis on the capacity of the offender to make a deliberate choice, he asks professionals to rate these factors in terms of degree of depravity. For example, did the offender intend to cause emotional trauma or physical disfigurement? Was the attack prolonged? Does the offender blame the victim or indicate some satisfaction with the crime?

"We've had over 2,300 completed responses so far," he says, "and we'd like more. We realize that the frame of reference of 'what is depraved' depends on so many factors, or variables. Due to the number of variables we're controlling for in this research, we really need a sizeable sample from all sectors and communities. With that we'll eventually have a validated scale that the courts can review. The courts will see that it reflects a consensus from defense attorneys and prosecutors across the country on what the legal term 'depravity' should mean."

This is all part of Welner's goal to maintain accountability among participants. "We believe in getting a lot of evidence before the court, so that decisions are fact-based as opposed to emotion-driven and manipulated by theatrics. That's the way this depravity question is pretty much decided now."

He's also willing to look at cases for the defense, because where there really are mitigating factors or where aggravating factors are exaggerated within some political climate that can hinder justice. Prosecutors will often exploit the vagueness of terms like "wicked," so getting real standards in place means a more narrow application of the death penalty. At the trial for the Matthew Shepherd gay-bashing murder in Wyoming, for example, Welner's team agreed to evaluate the defendant, Aaron McKinney, and look at the circumstances of the fatal encounter, as well psychiatrically investigate McKinney's background . "We were retained before sentencing with a question about which mitigating circumstances might a jury take into account as they were considering whether to impose the death penalty. As a result of the findings that we were prepared to present, it never even went to a sentencing phase. The defense and prosecution came to an agreement and gave him life. That was noteworthy because the resolution happened amidst a climate of media frenzy, with wild distortions about homosexual panic and what needs to be done about bias crimes. What we presented had enough substance that no one even felt the need to go to court to contest it."

Nevertheless, Welner does believe there's evil in the world. "I have no problem with the word being used," he admits. "If you look in the literature, there's a startling lack of effort to try to flesh out what evil is and I think it's our responsibility as behavioral scientists to try to understand it. This issue gets neglected because therapeutic professions like psychiatry inherently must focus on the good in order to be therapeutic. Another reason for this neglect is because to wade in and wrestle with it means to confront it in ourselves, and that's a painful prospect even for the most stable of us. When I first began exploring this, I never enjoyed it and I appreciated walking away from it. The more I studied it, the more it affected even my dreams. It's an unpalatable exercise."

Yes, it's a dirty job, but someone has to do it, and getting a better handle on how to define evil in these cases will make an important contribution to justice. Those who wish to participate in the research validating The Depravity Scale can find it at www.depravityscale.org.

Having presented numerous theories and examples of evil, let's try to sum it up.