Crime Library: Criminal Minds and Methods

Psychiatry, the Law, and Depravity: Profile of Michael Welner, M.D. Chairman, The Forensic Panel

Mitigating Capital Crimes

Over the years, Dr. Welner has worked in some capacity on over 30 different death penalty-eligible cases. "The work is incredibly high pressure," he says, "but I have no qualms because I know how hard I'm going to work before arriving at a decision, and because — I've got to admit — I prefer to work under high pressure."

He is mindful of the controversy over psychiatrists' involvement in capital cases. "It's true that as physicians, we're used to the role of saving lives as opposed to having a role in a person's demise," he said. "But I also consider what could happen if a certain person is allowed to continue to terrorize other people, even behind bars. All inmates and corrections officers deserve to be safe. Anyone who has treated a tormented corrections officer or an inmate traumatized by convicted killers who know they will never get the death penalty and cannot further be punished, as I have, knows that saving some lives can cost many others."

Aaron McKinney
Aaron McKinney

In the case of Aaron McKinney, tried for the killing of Matthew Shepard in Laramie, Wyoming, a member of The Forensic Panel agreed to evaluate the defendant and Dr. Welner was one of the peer-reviewers. The case was highly controversial, inspiring massive media coverage around the world.

On October 7, 1998, Matthew Shepard, 21, was found badly bludgeoned and tied to a split-rail fence on Snowy Mountain Road east of Laramie. He was unconscious and close to death. Rushed to a hospital, he was treated by physicians who tended to massive wounds to his face and head, including a crushed skull, but noted that he also had bruises to his groin and on the back of his hands, as if he'd tried defending himself. The injuries were so bad they could not operate. Blood frozen on Shepard's face and hair told a story of long exposure outside in freezing temperatures — 18 hours, as it turned out — and the only clean area on his face were the two tracks from his eyes down his cheeks. His hands had been tied so tightly that he had to be cut loose from the fence. He was only five-foot, two-inches, clearly unable to fend for himself. He had been hit hard with a blunt object some eighteen times, as well as kicked in several places.

Matthew Shepard, victim
Matthew Shepard, victim

Despite the surgeon's best efforts, the boy died five days later. During his hospitalization, investigators learned that he had been attacked for being gay, which aroused anger around the country for yet another heinous hate crime.

Four people were arrested: Aaron McKinney, 22, Russell Henderson, 21, and their girlfriends, Kristen Price and Chastity Pasley. Over the weeks that followed, various confessions were offered and plea deals reached. Russell Henderson accepted two life sentences for his testimony against McKinney. He admitted that they had picked up Shepard with the intent to rob him, but asserted that McKinney had beaten him savagely and ordered Henderson to help tie him up. McKinney and Henderson took Shepard's wallet and shoes and left him. Henderson made no effort to contact police, despite his ostensible concern for the victim. The two assailants enlisted their girlfriends to help hide their bloody clothing and to provide false alibis. When the shoes and Shepard's credit card were found in McKinney's truck and Shepard's wallet hidden in his home, the perpetrators' efforts to elude justice unraveled.

According to newspaper accounts, Aaron McKinney admitted beating Shepard with a foot-long .357 magnum. At first he said he did not know why and insisted that he had blacked out and lost control. He then stated that Shepard had made a sexual advance to him. His attorney wanted to develop a case based on past traumatic homosexual episodes that had fired up McKinney's rage against Shepard. However, that approach bordered on the "gay panic" defense, which is tantamount to a diminished capacity defense that Wyoming law does not allow. Moreover, McKinney's tale did not match what the others were saying.

Chastity Pasley
Chastity Pasley

Kristen Price, McKinney's girlfriend at the time, said that he had told her a different story. According to Price, McKinney and Henderson went into the bathroom at the Fireside Lounge to lure Shepard into their truck by pretending they were gay. They then proceeded to beat him up and finally took him to the fence where they tied him. Afterward, McKinney devised a story that he had innocently offered Shepard a ride home. (Price received a reduced charge for her testimony, from a felony to a misdemeanor. She received 180 days in prison, compared to Pasley's 15 months to two years.)

Henderson pleaded guilty, in exchange for agreeing to testify against McKinney. He claimed that McKinney had struck all of the blows that night and was prepared to say so in court. He was actually brought to the McKinney trial, but at the last minute was inexplicably pulled off the witness list. The defense did not call him, either, so what he might have said remains a mystery. In their attempt to have their client convicted of the lesser charge of manslaughter, the defense attorneys did call two men who claimed that Shepard had made advances toward them (one of whom knocked him unconscious), and McKinney's sister, who testified that Shepard had made a similar overture to her brother. The gesture had supposedly triggered McKinney's latent rage, the attorneys wanted to show. McKinney had been withdrawing from methamphetamines that evening, which may have exacerbated his bad mood. Thus, between being high and being groped in a way that disturbed him, his reasoning ability was clouded. The attorneys ended up pinning their hopes on the intoxication defense, although they also asked experts about issues involving violence, depression and attention-deficit disorder. However, in his confession, McKinney did admit that he was concerned that Shepard might recognize him later, which indicated the clear intent to get rid of a witness.

Russell Henderson (left) & Aaron McKinney
Russell Henderson (left) & Aaron

McKinney was convicted of felony murder, i.e., murder that occurs in conjunction with another felony crime such as kidnapping or armed robbery. He was eligible for the death penalty, and the prosecution was eager to press for that.

That's when The Forensic Panel team entered the picture.

"We were retained in anticipation of sentencing," Dr. Welner recalls, "with a question about which mitigating circumstances might a jury appropriately take into account as they were considering whether to impose the death penalty. That was a good example of a case in which there was a lot of discussion among attorneys and many other expert witnesses who had competing theories for which mitigating information should be presented. Some of the ideas other experts were raising were motivated by a desire to gain notoriety of exposure by testifying in a famous case. A veritable Tower of Babble. The role of The Forensic Panel was to hold those scientific approaches accountable that ultimately would have the greatest relevance, and to give the attorneys confidence in their usefulness."

In their research, they found that McKinney, addicted to methamphetamines and withdrawing from them at the time he encountered Shepard, showed signs of alcohol disinhibition. If Shepard did in fact make a pass, or even if he was only perceived to have done so, it may have triggered McKinney's homophobia. The extreme nature of McKinney's reaction was amplified by this biological and toxicological condition.

Homophobia often results in cases of violent reaction, and is acknowledged by pathologists as well as suicide experts for extreme destructiveness, particularly among late adolescents.

Research provided information about the victim's bar-cruising habits which gave potential credibility to McKinney's statement. It wasn't exactly the portrait of a passive young man provided by HBO's special, The Laramie Project. While it's not illegal to make sexual advances and while McKinney's rage-based violence was not in the least justified, given the totality of circumstances, a plea proposal was drawn up that acknowledged mitigating factors and also spared the victim's family more time in court.

As for depression, past abuse, attention deficit disorder, and brain damage, noted Welner, "We didn't think they were relevant."

"As a result of the findings that The Forensic Panel prepared to present, it never even went to a sentencing phase in court," Welner recalls. "The defense team reviewed the substance of their meaningful mitigation with Matthew Shepard's mother, which helped the two sides to come to an agreement to give him life instead of death. 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 even the prosecution was satisfied not to go to court to contest it."

Instead of the death penalty, McKinney received two life sentences.

"Too often, especially in capital cases, expert witnesses don't have enough confidence in the truth," says Welner in retrospect. "They feel that they have to shade findings, or create syndromes that don't exist. In a lot of cases, if you work with the scientific substance you have, and you give it to attorneys whose responsibility is to argue effectively, the attorneys will work their case. Sometimes, it's like the story of Hanukkah, where you have oil enough to burn for one day but you have to make it last eight days. You only have a little bit, but if the attorneys can use their own professional skills, your input can be more helpful than you had previously imagined. You can't make it more than it is, but you can make the court appreciate the significance of it in human terms."

Welner reinforces that the responsibility of consulting psychiatrists is to provide the truth. "If we play games, the public will generally lose confidence in the hard scientific substance of what we offer," he said. "Then we all lose."

More often than capital cases, psychiatrists are invited to evaluate the mental state of a defendant at the time of the offense, specifically to help determine if someone is insane.