On the first warm day of spring after a prolonged winter, Dr. Michael Welner sat at the witness stand in a high-ceilinged courtroom in downtown Manhattan, flashing his dimpled smile as a defense attorney questioned his credibility. Welner is a prominent and occasionally controversial forensic psychiatrist who has interviewed some of the most high-profile criminals of the past two decades, generally on behalf of the prosecution. He argued that Andrea Yates, the woman who drowned her five children in a bathtub in 2001, was legally sane; that Brian David Mitchell, the self-proclaimed prophet who kidnapped Elizabeth Smart, was legally sane; that Omar Khadr, the teenager who became Guantanamo’s youngest prisoner, was not tortured and had a high risk of continuing jihad activities if released. In appearances on CNN and other television networks, he has offered his opinion about many of the killers who have recently captured the popular imagination. This day, Welner was testifying in the trial of Pedro Hernandez, a 54-year-old man who had confessed—confessions that his lawyer claimed were false—to choking six-year-old Etan Patz in 1979.
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Etan’s disappearance from the streets of SoHo remains one of New York’s most famous unsolved cases. The basics have been repeated so many times in media accounts that they’ve entered into city lore: how the first grader spent weeks begging his mom to let him walk two blocks to the bus stop by himself; how the very first time she relented, he never made it to school; how his disappearance wasn’t noted until hours later; how no body was ever found; how, over subsequent decades, the police followed hundreds of leads, including ones that took them to Israel and a Rainbow Gathering in rural Pennsylvania; and how no one knew—still, no one knows—what happened to Etan that day.
The publicity around the case conferred the most horrible kind of celebrity on Patz’s family members; my aunt, who lived less than a mile from the Patzes, recalled feeling a shiver of horror and pity every time she passed Etan’s mother in the street. (The family has never moved from its SoHo loft, in case Etan someday finds his way back home.) In the years after Etan’s disappearance, his parents leveraged the media attention to advocate for crucial reforms. Etan was one of the first missing children to appear on a milk carton; May 25, the date of his disappearance, is still observed as National Missing Children’s Day.
“Defining evil is only the latest frontier where psychiatry, confronting the challenge of ambiguity, will bring light out of darkness.”
The New York Police Department got an unexpected break in the case in 2012 when a man reported that his brother-in-law had confessed to choking a child in SoHo in the 1970s. Based on that tip, detectives picked up the alleged killer, an unemployed former construction worker named Pedro Hernandez, in New Jersey and drove him to the Camden County Prosecutor’s Office, where they questioned him for seven hours before he confessed. At that point, they turned on a video camera—despite the fact that New Jersey law mandates that all interrogations be videotaped. On the short tape, an emotional Hernandez confesses to strangling Patz; a detective hugs him and tells him he’s proud. Twelve hours later, Hernandez told the same story, again on camera, to an assistant district attorney in New York. Then, two years later, in a videotaped interview with Welner, he confessed again. Afterward, he appeared confused. “I don’t even know if it happened,” he said, his voice soft and childlike.
In January, Hernandez went on trial for second-degree murder, felony murder, and kidnapping. There was no physical evidence or eyewitness account tying him to the crime; the basis for the charge was essentially Hernandez’s own confession. His defense lawyer argued that his client has an IQ of 67 (lower than 98 percent of test-takers) and a history of delusions, and had been manipulated into confessing to a crime he didn’t commit, according to newspaper reports. (The defense team also directed attention to Jose Ramos, a convicted child molester and the former boyfriend of Patz’s babysitter. Ramos told authorities that he had attempted to molest a young blond boy on the day Patz went missing, and was found civilly liable for Patz’s death in a 2004 default judgment. Ramos, who is currently in prison for violating sex offender registration requirements, has since denied that he had anything to do with Patz’s disappearance.)
As an expert witness for the prosecution, Welner testified that Hernandez confessed because he felt intense guilt and that the spontaneous, voluntary confessions Hernandez made decades earlier to a prayer group and his fiancée couldn’t be attributed to a psychiatric condition. Given the ambiguity of the case, it wasn’t clear what the jurors would make of the confessions. The case ultimately ended in a mistrial, leaving many questions still unresolved.
The day before Welner’s testimony, I met with Kate O’Malley, the research director of the Forensic Panel, a forensic consulting group Welner founded. I wanted to hear more about the project that consumes Welner’s time when he’s not preparing for a trial, and which O’Malley has helmed since April 2014. For more than a decade now, Welner has been using tens of thousands of dollars of his own money to fund a curious attempt to standardize and quantify human evil. The working concept at the project’s core is known as the Depravity Standard.
Our justice system holds that some crimes are more terrible, and thus worthy of harsher punishment, than others. Murder is differentiated by degree; a premeditated killing generally earns you more time than a crime of passion. The presence of certain “aggravating circumstances”—prior criminal history, for example—may result in more significant penalties. The most controversial of these factors is whether a crime can be judged “heinous, atrocious, cruel, or depraved,” language that many states have adopted in some form. The vagueness of this broad standard and its inconsistent application has resulted in a number of important Supreme Court cases about capital punishment. The 1980 Godfrey v. Georgia case concerned Georgia’s version, which applied to murders that were “outrageously or wantonly vile, horrible or inhuman.” Stressing the need for “clear and objective standards” in his opinion, Justice Potter Stewart wrote: “There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder” as meeting the standard. Some states have tried to make their standards more objective by narrowing definitions or adding required elements like torture. But in many states, even the clarified language reads like a thesaurus entry: In Arizona, “especially heinous” is defined as “hatefully or shockingly evil, in other words, grossly bad”; in Oklahoma, heinous means “extremely wicked or shockingly evil,” and atrocious means “outrageously wicked and vile.”
None of these are neat and easy categories. If some murders are especially atrocious or cruel, that implies that there’s also garden-variety atrocity and murders that aren’t merciless. But what does an average atrocity look like? Start trying to rank different kinds of awfulness and you quickly find yourself in the middle of a queasy moral puzzle. It’s no surprise, then, that juries often struggle with these judgments. In April, former football player Aaron Hernandez was convicted of first-degree murder for killing his fiancée’s sister’s boyfriend. The jury determined that his crime was characterized by extreme cruelty or atrocity and sentenced Hernandez to life in prison without the possibility of parole. “The shots. There were six of them. That’s extreme,” juror Rosalie Oliver said in a post-trial press conference. Defense attorneys disagreed: “This is not your classic case of cruelty, where somebody kills someone over a lengthy period of time,” Boston defense attorney Martin Weinberg told the Hartford Courant. Hernandez’s legal team has indicated that a dispute over the definition of “extreme cruelty” will be at the center of its appeal.
As a forensic psychiatrist, Welner saw firsthand how the fuzziness of language created confusion and inconsistency in sentencing outcomes. A 1986 survey of cases involving homicides deemed “especially heinous” found no unifying thread that linked the crimes or differentiated them from non-heinous murders.
“The Depravity Standard would allow us to make sure we’re judging the what of the crime instead of the who.”
The messiness of this system, with all its bias and guesswork, troubled him. And so, in 1998, he began work on the Depravity Standard, a crowd-sourced instrument for the rational evaluation of extreme crimes. Instead of relying on gut feelings about what constitutes depravity—gut feelings that could easily be manipulated by a charismatic prosecutor, or an unappealing defendant—Welner envisions judges, juries, and parole boards scoring crimes on the Depravity Standard to determine with some objectivity whether they are indeed examples of the worst. “When the average plumber or librarian or whoever is exposed to my world, the world of violence, where people do really bad things to other people—most of them are really disturbed by it,” Dr. Michael Bourke, the chief psychologist at the United States Marshals Service, told me. “The Depravity Standard would help people take something really horrific and think about it in a way that’s not so visceral.”
After consulting with colleagues and experts in the field, reviewing hundreds of judicial decisions, and surveying the public, Welner and his research team came up with an inventory of 25 items that indicate that a crime could be classified as depraved. (Welner, who uses the words “evil” and “depraved” synonymously, settled on “depravity” as his word of choice because he believes it’s less melodramatic and distracting.) They include some of the serial killer tropes you might expect—prolonging agony, psychological torture—but also other, less obvious characteristics, including seeking fame and convincing others to participate in a crime. Every day, new survey respondents log into depravitystandard.org, read the instructions, and start moving a digital slider along a scale, trying to find the number that best quantifies the crimes in its inhumane inventory.
Over lunch, O’Malley described some of the ways Welner hopes the Depravity Standard might be used. According to the Sentencing Project, an organization that advocates for reforms to the criminal justice system, more than half the people in state prisons have been convicted of a violent offense; the Depravity Standard could help relieve prison overcrowding by determining which of those violent offenders are best suited for early release. Studies show that black defendants receive longer sentences than whites with similar criminal histories, and that defendants who pay for private lawyers are less likely to be locked up; the Depravity Standard could help mitigate against individual biases and expensive lawyers. The Depravity Standard could also be used to evaluate non-violent crimes. For example, someone who deliberately defrauded elderly people out of retirement savings might qualify as the depraved version of a white-collar criminal.
O’Malley is from Australia, and the broad vowels of her accent made her stories of depraved criminals—gang members and serial torture-rapists—seem almost cheerful. I asked her for an example of a case in which the Depravity Standard might have made a difference, and she told me about a babysitter in Virginia who beat and smothered her two-year-old charge because he wouldn’t stop crying. O’Malley recounted how the babysitter, who was young and a regular churchgoer, was sentenced to five years. “Imagine if we’d used the Depravity Standard in that case,” O’Malley said. She ticked off a few of the applicable items: taking advantage of a trusted relationship, prolonging suffering. “The Depravity Standard would allow us to make sure we’re judging the what of the crime instead of the who,” she said.
Midway through the Pedro Hernandez trial, I decided to take the Depravity Standard survey myself. Crowd-sourced data is key to Welner’s research: The clutter of individual bias will be smoothed out by the collective wisdom of the crowd, he believes. So far, more than 40,000 people have participated, a number that Welner says makes his conclusions statistically significant. The research team hopes to finish validating the data it’s collected later this year; once the results are published, Welner plans to release the Depravity Standard for use in criminal proceedings.
In the current version of the survey, respondents are assigned a category of crime—for example, murder, assault, or sexual assault—as well as a list of the 25 elements of depravity. “Let’s say you were on a jury, considering the severity of an assault offense,” the survey asks. “How depraved—on a scale of 1–100—would each of the following 25 potential elements of the crime be, if present?” The idea is to rank different kinds of depravity against each other: Is torturing a victim psychologically more depraved than scarring him physically? If so, by how much? The survey presumes that each of these items is an example of depravity; the question is not is this evil, but just how evil is it? Ultimately, Welner hopes to produce an algorithm of sorts, with each aggravating factor given a particular weight. A judge or a jury could determine what depraved elements were present in a particular crime to score it as low, medium, or high depravity. Ted Hunt, a chief trial attorney in Jackson County, Missouri, envisions using Welner’s final product to fine-tune jury instructions. “That way they’d be based on peer-reviewed research, rather than a bunch of people sitting around in a room saying, ‘What sounds really bad to you?’”
I’m one of those people who actively seeks out online surveys, and so I imagined that participating in the Depravity Standard research might be a perverse kind of fun. It was not. Each element of depravity included a handful of illustrative examples (“Attempting to scar a victim indefinitely or permanently, such as with knife wounds on the face, amputations, genital mutilation, or acid-attacks”), and these lists of visible and invisible ways that human beings inflict pain on each other started to pile up in my brain, creating a woozy feeling akin to the emotional hangover of a Law & Order: SVU marathon. Was a hypothetical acid-attack rape a 100 on the depravity scale? If so, where did that leave incestuous child rape? Was that also a 100?
Other items in the survey seemed to point to something sinister, but not necessarily depraved: “Projecting responsibility onto the victim; feeling entitlement to carry out the action.” An example of this was “the perpetrator explain[ing] actions by suggesting the victim placed one’s self in a situation, be it in a bar or a fraternity party atmosphere, in which sex activity was to have been expected.” That struck me as despicable and wrong, but not necessarily all that depraved. Still, my finger hovered over the scoring bar; ranking anything below a 50 felt like condoning rape. I had a desperate need for more context. Of course, more context would just open up more space for ambiguity and interpretation—as well as interpretation’s dark twin: bias.
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Somewhere between the items “Intent to carry out a crime for excitement of the criminal act” and “Indifference to the actions and their impact,” I began to think about Pedro Hernandez, and the baffling opacity of his alleged crime. According to his confessions, at least, he had woken up one morning and choked a six-year-old boy for no apparent reason. Did that make the crime depraved? Welner couldn’t discuss the Hernandez trial with me directly, as he will be called to testify again, but when I asked him how the Depravity Standard might apply in the case, he wrote in an email that “jurors in general will benefit from promoting investigation of a criminal’s actual intent, victimology, and attitudes. These are typically submerged under the weight of actions. A juror or judge has a richer sense of a crime that incorporates the assessment of all four elements.” I moved the slider bar back and forth aimlessly, wishing I could channel some of Welner’s enviable confidence in the intelligibility of this dark world.
I made it through only 12 of the 25 items before the whole process got to be too much for me—the psychological torture and disfiguration and incest, the contrast between the muddiness of human experience and the cool, impartial numbers. I closed the tab, telling myself I’d come back later, when I was in a more objective state of mind.
From its founding, psychiatry has had a complicated relationship with both science and the law. In the Freudian psychoanalytic model, human behavior springs from a deep well of mystery and uncertainty: the unsolvable puzzle of the unconscious. But in the latter half of the 20th century, the emerging science of psychiatry began to skew more toward evidence, classification, and other ostensibly objective measurements. “Psychiatry is finally taking its rightful place in the medical community after a long sojourn in the scientific wilderness,” Jeffrey Lieberman, chairman of psychiatry at Columbia University, wrote in his 2015 book Shrinks: The Untold Story of Psychiatry. “Buoyed by new research, new technologies, and new insights, psychiatry does not merely have the capacity to raise itself from the shadows but the obligation to stand up and show the world its revivifying light.” Expert testimony from forensic psychiatrists, which must be reliable, fact-based, and scientific in order to be introduced as evidence in the courtroom, is under even more pressure to instrumentalize.
But quantitative instruments and models can also be ineffective at capturing the complexity of human behavior. Mental illnesses don’t always sort easily into categories in the latest version of the Diagnostic and Statistical Manual of Mental Disorders. Behavioral models that aim to predict future criminal threats have an uneven track record when applied to a given individual. These difficulties become especially troubling when they’re introduced in a high-stakes arena, such as a murder trial.
“Everything in this case was gray. But at the end, everybody else voted for a much more black-and-white view.”
Thrusting forensic psychiatrists into a domain that plays by different rules means using legal, not psychiatric, definitions of words like insanity. Welner’s Depravity Standard research sits at the uneasy intersection of morality, psychiatry, and the law—which is perhaps why some of his peers are quick to dismiss it.
Welner does not appear to be overly troubled by their doubts. In both his scientific papers and television appearances, he exudes the calm beneficence of a man confident in his own ideas and in the importance of his mission. “Evil behavior bedevils the law and the behavioral sciences, and it will not go away,” Welner wrote in 2003. “Defining evil is only the latest frontier where psychiatry, confronting the challenge of ambiguity, will bring light out of darkness.”
The day after I watched his testimony, I met with Welner in his Manhattan office. Welner collects gargoyle figurines, and while I waited for him to show up, I tried to spot all the small, snarling creatures hidden throughout his office—crouched on the bookshelf, peering over his business-card holder. After a few minutes, Welner strode through the door. He had a powerful handshake and the air of a man whose mind was juggling many tasks at once, including the mandate to be charming.
Welner told me that he grew up in Pittsburgh, the precocious, stubborn youngest son of a high-achieving family. Welner’s parents were each the only member of their immediate family to survive the Holocaust, and their son inherited both their intelligence and an intense drive to succeed. At first, Welner displayed the drive but lacked a direction. He graduated from high school at 15—less because he was a great student, he told me, than because he was smart and hyperactive and his teachers weren’t sure what to do with him. He began medical school at age 19, and decided to specialize in psychiatry when he was barely old enough to buy beer. While this résumé attests to a certain propensity for overachieving, Welner insists that he didn’t truly buckle down and start to work hard until his older sister, Sandra, a surgeon and advocate for women with disabilities, suffered a brain injury. Galvanized by her struggles, Welner threw himself into his work; now he appears unable to stop. “He works 20 hours a day,” Emily Davey, the senior case manager at the Forensic Panel, told me. “Sometimes when I’m working on the weekend, my friends will say, ‘I hope your boss is working, too!’ And I’m just like, ‘You have no idea.’”
Over the years, Welner developed many pet causes, most of which are aimed at reforming and refining the practice of forensic psychiatry. He videotapes all his psychiatric evaluations, and helped pass an Illinois law that requires all forensic psychiatrists to do the same during competency exams. He founded the Forensic Panel. The Depravity Standard research stems from the same impulse to analyze, improve, and standardize.
But some of Welner’s critics argue that his Depravity Standard work might do more harm than good. Part of the problem is Welner’s liberal use of the word evil. This language occasionally makes his claims sound more messianic than scientific. In 2007, he told the Washington Post: “If you can identify evil, then you can go about eliminating it. It’s the first step in any scientific research.” Dr. James Knoll, director of forensic psychiatry at SUNY Upstate Medical University and a persistent critic of the Depravity Standard, argues that evil is a subjective and emotionally laden moral concept. “I strongly disagree with the notion that ‘experts’ can scientifically measure and testify about morality,” he explained in an email. In journal articles, Knoll has warned that forensic psychiatrists who speak about evil are wandering dangerously close to witch-hunt territory, and risk equating mental illness with sinfulness and criminality. The words depravity and evil have a similar weight: They connote a kind of bone-deep badness, a moral rot.
There’s also the question of mental illness, which the Depravity Standard doesn’t address. In the justice system, insanity has a very narrow definition. Essentially, if a person knows he’s committing an act that’s considered wrong when he does it, he is legally sane, even if he is delusional, manic, or otherwise mentally ill. As Welner envisions it, the Depravity Standard will only be used after a defendant has been convicted of a crime, and at that point the question of sanity is moot, legally speaking. But talking about evil without a corresponding critique of the court’s sanity definition might give some skeptics pause.
There’s another, more fundamental criticism of the Depravity Standard research: that it simply isn’t necessary. “This is not a term for the mental health profession or psychiatry to define,” Dr. Jeffrey Janofsky, medical director of the American Academy of Psychiatry and the Law, told me. “The word has a particular meaning in the common law, a meaning that evolves over time and is defined by the courts and the legislators. It’s irrelevant what we as scientists think it means. Essentially, we have no business as psychiatrists getting into this battle, which is not about diagnosis but about definitions in terms of laws.”
This argument clearly exasperates Welner. “Psychiatrists don’t want to deal with evil. There’s always this tone of distancing—that’s theological, that’s sociological,” he told me. “But when you’re in forensic psychiatry, you see the extremes [of human behavior]. It’s sitting right in front of me. I’m not going to call a priest to court to come testify.” As Welner followed this line of thought, his voice became louder and more urgent, recalling his testimony on the stand the day before. “It’s like a fungating tumor. The oncologist doesn’t say, That’s too ugly for me, that’s too smelly for me. You’re a behavior expert! You’re a forensic psychiatrist! You don’t get to pick and choose!”
“I don’t know how familiar you are with psychiatrists,” Welner went on, “but temperamentally I’m not like most of them. If I’d been a little older, if I’d known myself better when I was in medical school, I probably wouldn’t have gone into this field. I’d have been a neurosurgeon instead. By now I’d have done something like pinpointed where OCD was in the brain—and invented a new kind of laser surgery procedure to remove it.” As soon as he said it, a parallel version of his life unfolded in front of me. It’s easy to imagine Welner, instrument in hand, narrowing in on a problem and neatly excising it. Cutting out the bad and leaving the rest behind.
I sat down in the courtroom early on the day the jury was set to view clips from the 16 hours of interviews Welner had conducted with Hernandez. Hernandez wouldn’t be testifying, so these videotaped interviews were some of the only times they’d get a chance to see the defendant speak for himself.
Like other expert witnesses, forensic psychiatrists are called on for their ability to parse technical information, but the human psyche is trickier to interpret than, say, DNA evidence. The experts often give testimony about whether a defendant could be considered sane at the time of the crime, or offer mitigating factors that would warrant a lesser sentence. In this case, Welner was enlisted to help jurors figure out how to interpret Hernandez’s sometimes damning, sometimes contradictory statements. The case did not hinge on the question of sanity but rather of reliability. Did Hernandez mean what he said? Was he an accurate witness to his own memories?
Welner specializes in distilling this kind of complex case into a clear narrative, which he presents to the jury in an engaging and understandable way. Courtroom experts run the risk of alienating juries with their very expertise if they use jargon or go off on pedantic tangents. Welner does neither. He is incredibly bright, but doesn’t come off as remote. He credits his time as a college sports announcer for his skill at testifying. Basically, he learned how to be easy to listen to. Juror Adam Sirois noted later that Welner was the only expert who made eye contact with the jury.
Welner’s videotaped interviews showed Hernandez looking slump-shouldered in his prison uniform; Welner remained off camera, present only as a voice. Hernandez told Welner an account similar to the one he’d given police in 2012. Etan Patz, who he’d never seen before that morning, was standing outside the bodega where Hernandez was working as a clerk. Hernandez asked the boy if he wanted a soda and then led him into the store’s basement where, without apparent motive or malice, he choked him until he went limp. He described stuffing Patz’s body into a trash bag, putting the bag into a cardboard box, and leaving the box in a nearby alley.
Hernandez told this story with an odd, emotionless affect. Parts of his confession were detailed and vivid, but other parts of the story were incomplete. He insisted that Etan didn’t fight back or yell during the attack, that his hands hung at his side the whole time. He claimed the boy was still moving when he dumped the box a block and a half from the store. Hernandez went back the next day, he told Welner, but the box—and the boy—were gone.
On television, confessions come in the final act; the neat, efficient power of someone finally coming clean provides relief and a way out of the episode. Crime disrupts; confession puts things back into place. Hernandez’s seemingly confused performance of a man confessing didn’t feel that way. Instead, hearing his confession just made the whole case more baffling. “I think we all went into the trial expecting to hear aha moments,” Sirois, the juror, told me after the trial was over. “But the trial didn’t provide a lot of clarity.”
In mid-April, the jury began to deliberate whether Pedro Hernandez could be found guilty in the death of Etan Patz. It was initially unclear which way they’d go; this was a decades-old case, with none of the clarity of forensic evidence or corroboration from eyewitnesses—just the repeated confession of a potentially unstable man.
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On the 11th day of deliberations, the jurors announced they were at a stalemate. The judge instructed them to keep trying. They reviewed both sides’ closing arguments and witness testimonies and requested a laptop to keep track of their notes. On the 15th day, they presented the judge with a note: “After serious, significant and thorough deliberations, we remain unable to reach a unanimous decision.” They were instructed once again to continue their deliberations. Throughout, according to Sirois, most jurors were convinced of Hernandez’s guilt, while a minority expressed some level of doubt. Sirois, troubled by questions about the interrogation and Hernandez’s shaky mental health, consistently voted not guilty.
After 18 days of deliberation, the group held another vote. This time, it was 11 to one in favor of conviction. “I was really shocked when that happened. It rocked me for a few minutes, and I had to go to the bathroom and compose myself,” Sirois told me. “I didn’t want to do anything that would hurt the Patz family, or New York—but I just couldn’t convict on the lack of evidence brought by the prosecution. I felt like the story was created around the confessions, and not the other way around.” Sirois stuck to his guns, and on May 8th, the case was ruled a mistrial. The deliberations lasted longer than any in recent memory, according to a court spokesperson. Hernandez was sent back to his cell and is now awaiting his next trial, which is slated to begin early next year.
When I spoke with Sirois a few weeks after the trial was over, he still seemed shaken up by how his fellow jury members could see things so much differently than he did. “It wasn’t even about innocence. Just reasonable doubt,” he told me. “I was always the one advocating for reasonable doubt—let’s explore that idea, see if doubt exists in our mind. But doubt is hard to express. It’s a fuzzy thing. Everything in this case was gray. But at the end, everybody else voted for a much more black-and-white view.”
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