For the Defense - Volume 2, Issue 2 - 2017 - 44

any of the physical evidence, did not flee, waited
for or contacted the police, did not resist arrest,
was cooperative, confessed freely and in great
detail, and volunteered the existence of evidence
or facts unknown to the police. Counsel will bring
out that the defendant, while he may have meticulously planned the killing, had no plan whatsoever beyond that point to avoid the consequences,
such as escaping the scene. Nor did his actual plan
for the killing anticipate avoiding consequences,
such as hiding his identity or avoiding witnesses.
The Commonwealth's witnesses should prove very
amenable in the process in that they will see the
questioning as emphasizing their first degree case
and not as a challenge to their version of events.
There may also be witnesses available to the
defense to bring out these facts.
During the merits phase, counsel is thus
preparing the jury for the penalty phase of the
trial and hopefully counteracting the tendency
toward premature decision making regarding
the appropriate sentence. The evidence from
both Commonwealth and defense witnesses will
suggest that this is not the typical behavior of a
vicious criminal, as alleged by the Commonwealth,
and that perhaps there is other information to be
considered for the determination of the sentence.
Once the case enters the penalty phase,
counsel has the testimony the jury has already
heard structured in the format of Borderline
Personality Disorder for her experts to apply in
support of the diagnosis. If the experts are effective, the Jury will see that the defendant, while
capable of premeditated murder, did so under
the compulsion of his Borderline Personality
Disorder. Counsel can then argue that the jury

may consider the disorder as mitigation.
There are some ethical considerations to
this approach. Does this, in effect, concede guilt
without the permission of the client? Admittedly
it requires walking a fine line. It may be that the
client agrees to the facts but only wants "his
story" told to a jury in which case there is agreement and a direct admission can be made from
the outset. But, in those cases where the client
will not agree to any admission, it is suggested
that counsel may still proceed to emphasize what
the Commonwealth's facts are without conceding
them to support the inevitable penalty phase.
While it is certainly daunting to, in effect,
adopt the Commonwealth's facts on behalf of the
defendant, it is suggested that in these cases it may
be the best road to support Borderline Personality
Disorder as mitigation.

Notes
1.
2.

J. Reid Meloy, Violent Attachments, (Jason Aronson,
1997).
Elliot L. Atkins, Ed.D., Michael T. Whiltsey, Ph.D.,
Alison L. Hey, M.A., Nathan M. Schenker, J.D., The Link
Between Borderline Personality Disorder and Homicidal
Behavior, American Journal of Forensic Psychology, Vol.
31, Issue 2, 21-35 (2013).
Elliott Atkins and Michael Wiltsey, Recognizing and
Understanding Borderline Personality Disorder: A
Primer for Attorneys, For The Defense, Pennsylvania
Association of Criminal Defense Lawyers, Vol. 1, Iss. 2
(Apr. 2016), https://www.nxtbook.com/nxtbooks/PACDL/
FORTHEDEFENSE_vol1_issue2_2016/#/16.
Click here to view and/or print the full notes
section for this article.

About the Author
Nathan M. Schenker is the First Assistant Public Defender of Chester County.
He is a graduate of the University of Virginia and William & Mary Law School.
During his career, he has represented a number of capital clients, presented at
capital continuing legal education seminars, and published on topics related
to capital representation. He is a past board member of the Pennsylvania
Association of Criminal Defense Lawyers and the Public Defenders Association
of Pennsylvania, and is a past president of the latter. Mr. Schenker is an adjunct
faculty member of Widener University-Delaware School of Law, West Chester
University and Immaculata University. In 2005, Mr. Schenker received the Allan
Jay Josel Advocacy Award from PACDL.

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