For the Defense - Volume 1, Issue 3 - 2016 - 10

In order to answer these questions, the authors are suggesting that even psychological disorders that may typically be utilized as aggravating factors may be presented by the defense in a manner that would provide insight into both the defendant and the violent behavior. In our experience, we have come to recognize a link between BPD and violent behavior within our professional careers. Several of our cases have had the following facts in common: * prior to the offense, the defendant had expressed to others his/her desire to kill the victim; * the offense, itself, occurred with little regard to the presence of witnesses and without any attempt to remove evidence of the commission of the offense; * in the immediate aftermath of the offense, the defendant came into contact with the police, either by remaining at the scene or by initiating the contact; and * the defendant gave an unquestionably voluntary statement that is detailed as to the motive, planning and commission of the offense (and in some cases, made the police aware of pre-offense documents and/or recordings). It is more likely than not that the prosecution would rely upon the above factors in order to establish premeditation and/or intent and to utilize them as aggravators at sentencing. As counsel, you know that a conviction is all but inevitable. Consequently, the case will be about punishment. We maintain that, rather than challenging the prosecution's reliance upon the defendant's planning and calculation, counsel can accept the fact that there was premeditation. In so doing, it may be possible to separate the defendant from a class of "cold-blooded killers" by explaining the factors of BPD that may, given the right set of circumstances, have predisposed this individual to engage in a violent act. This article will explore situations in which a diagnosis of BPD could be used as mitigation at a sentencing hearing or during the sentencing phase of a death penalty trial. In Part One of this series of articles, (Recognizing and Understanding Borderline Personality Disorder: A Primer for 10 For The Defense | Vol. 1, Issue 3 Attorneys), two of the authors provided the reader with an introductory course in BPD. With that in mind, we will begin by providing a brief overview of the characteristic features of BPD. Next, we will examine the interface between BPD and violent behavior. Finally, we will discuss the utilization of a BPD diagnosis as mitigation. Characteristic Features of Borderline Personality Disorder When evaluating a client for a possible psychiatric disorder, mental health professionals are likely to consult the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which is the authoritative treatise for the diagnosis and classification of psychiatric disorders within the mental health field. Along with Histrionic, Narcissistic and Antisocial personality disorders, BPD is considered to be one of the "Cluster B" personality disorders listed in the DSM-5.1 These disorders are often referred to as the "dramatic," "emotional," or "erratic" disorders.2 These diagnoses have been characterized by dysfunctional emotional regulation, anger dyscontrol, high reactivity to stress, and an inability to control aggression.3 DSM-5 Criteria for BPD4 A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following: 1. Frantic efforts to avoid real or imagined abandonment. 2. A pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation. 3. Identity disturbance: markedly and persistently unstable self-image or sense of self. 4. Impulsivity in at least two areas that are potentially self-damaging (e.g., spending, sex, substance abuse, reckless driving, binge eating).

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016