For the Defense - Volume 2, Issue 2 - 2017 - 42

other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.") Our ongoing discussion
has engendered a number of articles, including
the two preceding articles in For The Defense.
In For The Defense,3 Dr. Atkins et al. wrote
about recognizing and understanding borderline personality disorder. The writers explored
the symptoms of the disorder and how it might
present in a criminal defendant. In a subsequent
issue,4 we expanded on the information from
the previous article to discuss how Borderline
Personality Disorder might be considered as mitigation evidence. The two previous articles have
provided an understanding of the diagnosis of
Borderline Personality Disorder and how it may
be used to support mitigation. This article takes
a practical approach, providing for the development of Borderline Personality Disorder in a
capital trial as mitigation.
Most attorneys who have represented capital clients would agree that, where there is a
strong factual case for first degree murder, the
best capital trial is the one that never happens.
As noted in the previous articles, the Borderline
Personality Disorder client will likely have provided the Commonwealth with an abundance
of damning evidence for first degree murder.
It is probable that the defendant made known
his intent prior to committing the homicide,
either to others or memorialized in some other
method. For example, in one of the author's
cases the defendant created a voice recording as
to his thoughts about why he had to commit the
killing. In another the defendant had a "journal"
of his thoughts which he voluntarily provided to
the police. These killings seem to occur with no
thought to concealment of forensic evidence,
or evasion of capture or arrest. To the contrary,
the defendant may remain at the scene or even
initiate police contact. Finally, the defendant,
when in custody, may provide a voluntary and
detailed statement as to his motives and actions,
often providing information or details that
would never otherwise come to the attention
of the authorities, such as the aforementioned
recording and journal.
With such evidence available to the
Commonwealth, a conviction for first degree
murder is a foregone conclusion. A negotiated

42

For The Defense | Vol. 2, Issue 2

plea will almost always be preferential to exposing the client to a possible death sentence. Yet, a
defendant who suffers from Borderline Personality
Disorder will often demand to go to trial.
Faced with circumstances such as this, it is suggested that capital representation requires that we
think outside the box and take some risks. What is
suggested here appears to be a risky strategy, but
it could be successful in the unique circumstances
of representing a client suffering from Borderline
Personality Disorder.
The options available to counsel are limited.
Challenging the Commonwealth's guilt evidence
does nothing more than allow it the opportunity
to emphasize the strength of its case and highlight facts that the jury may view as supporting a
death sentence.
The focus of the defense, of necessity, should
turn to using the Commonwealth's facts to develop
mitigation from the outset. In this process, two
basic principles unique to the bifurcated capital
trial should be kept in mind.
While a detailed discussion is beyond the scope
of this article, any attorney representing a capital
client at trial should be familiar with the findings
of the Capital Jury Project and the many studies
and articles analyzing those findings.5 For our purposes here, we note two key findings about jury
decision making and what they suggest:
*

*

Capital juries improperly consider the sentence to be imposed during the merits (innocence or guilt) phase of the trial. What they
see and hear in the merits phase will impact
their choice of penalty. "CJP interviews
with 916 jurors from 257 trials in 11 states
revealed that nearly half the jurors (48.3%)
said they had decided what the punishment
should be before the sentencing phase had
begun"6 Indeed, in an overview of significant findings of the Capital Jury Project, one
scholar characterizes premature decision
making as running rampant.7
In determining penalty, capital juries
improperly consider and apply non-statutory aggravating factors, such as the extent
of planning by the defendant, lack of
remorse, or the heinousness of the crime.
As part of the Capital Jury Project, a survey
was given to jurors who had served on



Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 2 - 2017

For the Defense - Volume 2, Issue 2 - 2017 - 1
For the Defense - Volume 2, Issue 2 - 2017 - 2
For the Defense - Volume 2, Issue 2 - 2017 - 3
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For the Defense - Volume 2, Issue 2 - 2017 - 52
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