Will Borderline Personality Disorder Save Jodi’s Life?


It’s February 7, 2015, and we’re at the 4 month mark of the Jodi Arias penalty phase. Sadly, this surpasses the length of time it took for her original case to play out in court. It’s easy to forget sometimes we’re not watching a trial to determine her guilt, but rather listening to mitigating factors that could spare her life. It’s an important differentiation to make when we have the conversation about whether or not Borderline Personality Disorder can and should effect the decision the jury will render.

During the course of a regular trial, if the defendant claims to have a mental defect, they have a few different avenues in which to plead their case. One is Diminished Capacity, the other is Insanity. Let’s first take a look at these defenses to understand how they work and how they are relevant.

The defense of insanity and diminished capacity although clearly distinct are not inconsistent defenses and both may be at issue in the same case. The critical distinctions are that diminished capacity is a partial, negating defense (negates an element of the state’s case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense – the defendant bearing the burden of proving that he was legally insane.

Insanity, with the hopes of acquittal, was not a defense used in Jodi’s original trial. What is Insanity and how does it work?

Legal Insanity: Background

The first known recognition of insanity as a defense to criminal charges was recorded in a 1581 English legal treatise stating that, “If a madman or a natural fool, or a lunatic in the time of his lunacy” kills someone, they cannot be held accountable. British courts came up with the “wild beast” test in the 18th Century, in which defendants were not to be convicted if they understood the crime no better than “an infant, a brute, or a wild beast.” Besides the fact that courts no longer use the terms “lunatic” or “wild beast,” current laws allowing for the insanity defense follow a similar logic. The legal basis for insanity was codified into British law in the mid 19th Century with the M’Naughten Rule, which is used in a majority of U.S. states and other jurisdictions around the world today. See Current Application of the Insanity Defense and Status of the Insanity Defense to learn more.

How Courts Test for Legal Insanity

Depending on the jurisdiction, courts use one or a combination of the following tests for legal insanity: The “M’Naghten Rule” – Defendant either did not understand what he or she did, or failed to distinguish right from wrong, because of a “disease of mind.” The “Irresistible Impulse” Test – As a result of a mental disease, defendant was unable to control his impulses, which led to a criminal act. The “Durham Rule”Regardless of clinical diagnosis, defendant’s “mental defect” resulted in a criminal act. The “Model Penal Code” Test for Legal Insanity – Because of a diagnosed mental defect, defendant either failed to understand the criminality of his acts, or was unable to act within the confines of the law.

The Insanity Defense: State Laws

A few states do not allow the insanity defense against criminal charges, including Idaho, Kansas, Montana, and Utah. All four of these states, with the exception of Kansas, allow “guilty but insane” verdicts, which often provide for institutionalization in lieu of prison. Most states that recognize legal insanity use either the M’Naghten Rule (sometimes in combination with the Irrestistible Impulse Test) or the Model Penal Code. Only New Hampshire uses the Durham standard. See The Insanity Defense Among the States for a complete list.http://criminal.findlaw.com/criminal-procedure/insanity-defense.html


They did however try for diminished capacity…

Diminished capacity is a partial defense to charges that require that the defendant act with a particular state of mind. For example, first degree murder requires that the state prove beyond a reasonable doubt that the defendant acted with premeditation, deliberation and the specific intent to kill – all three are necessary elements of the state’s case.[3]

If evidence exists, sufficient to create a reasonable doubt as to whether the defendant because of mental illness or “defect” possessed the capacity to premeditate, deliberate or form the specific intent to kill then the state cannot convict the defendant of first degree murder.[4] This does not mean that the defendant is entitled to an acquittal. The defendant still might be convicted of second degree murder which only requires that the defendant act with general malice.[5]http://en.wikipedia.org/wiki/Diminished_responsibility

There are three ways the defense tried to use diminished capacity. First, with the suggestion of parental abuse. The problem with that though is typically an abuse defense is only relevant if the defendant acted in retaliation toward their abuser. Using your own prior abuse as a defense to violently harm another individual who is completely unrelated is a tough row to hoe in any courtroom.

So, second, enter the claim that Travis was her abuser. Not just physical abuse, but relentless verbal and emotional abuse. In my opinion, one of the tell-tale signs that Jodi was lying through her teeth about Travis abusing her was obviously her neglect to tell the police for a few years after her arrest, but also on the stand, she heavily muted his behavior towards her. She would throw out a crumb that Travis treated her poorly, but then reign it back in with tales of how she loved him and enjoyed sex with him. And then she unloaded a bombshell when she told the court he had tried to kill her on one other occasion. But clearly showed no fear of this man whatsoever and continued with their affair. She also downplayed his supposed pedophilia.   These were outlandish claims that simply made no sense and were unbelievable. Even the defense team had to recognize that.

So, to create the trifecta, and to avoid having to explain the 29 stab wounds and gaping hole in his neck (which is completely unexplainable), they entered the PTSD diagnosis… also known as Jodi’s Fog. And let’s be clear on this – they did bring Richard Samuels to court during the original trial with a clinical evaluation and testing that diagnosed Jodi with PTSD. It was not, as Nurmi claimed in court this week, a mere “suggestion” that she had it. Juan Martinez largely discredited Samuels’ original findings and his efforts proved to be successful as the jury didn’t buy the PTSD claim and ultimately found her culpable at the highest level.

Jodi was found guilty of murder one – premediated murder. This means the original jury believed she acted with premeditation, deliberation and the specific intent to kill. But they couldn’t come to an agreement on the penalty she should receive. One of the main reasons for that was four of the jurors, including the foreman, thought to some extent Travis’ treatment of Jodi made her go a little bit bonkers. Now, obviously, I’m simplifying this a bit. But it’s not an unfair statement to say although the defense was unsuccessful in protecting Jodi from a murder one verdict, they were somewhat successful in planting the seed of sexual deviance (translating to abuse) by Travis. It didn’t work as diminished capacity, but could it work as a mitigating factor?

So here we are two years later, in a penalty phase, still talking about abuse, behavior patterns and mental instability. Not just Travis’, but also Jodi’s. The assertion of Borderline Personality Disorder was introduced by DeMarte in the original trial, but scoffed at by the defense team at the time. It didn’t fit into their – PTSD/Jodi was beaten with a wooden spoon as a child/Jodi was a sex slave to Travis/let’s have a pity party for Jodi’s sad life – defense plan.

But now that she’s been convicted of the worst possible crime and we have a whole new jury, and whole new opportunity to explain why Jodi behaved the way she did, the defense needs something big to win this part of their case. Let’s face it, in the realm of murder, what she did was way beyond excessive and cruel. This isn’t your average crime of passion. This is a monster on two feet. For the defense to have any hope, they must be able to explain why Jodi did what she did and a cheating boyfriend alone simply won’t cut it.  So although the evidence introduced by DeMarte this week (which will be covered in detail in a future blog post) was incredibly strong for the state to illustrate Jodi’s mendacity and callous nature, there is the chance that it could also work in favor of the defense.

So let’s first look at what Borderline Personality Disorder is…

Borderline personality disorder (BPD) is a serious mental illness marked by unstable moods, behavior, and relationships. In 1980, the Diagnostic and Statistical Manual for Mental Disorders, Third Edition (DSM-III) listed BPD as a diagnosable illness for the first time. Most psychiatrists and other mental health professionals use the DSM to diagnose mental illnesses.

Because some people with severe BPD have brief psychotic episodes, experts originally thought of this illness as atypical, or borderline, versions of other mental disorders. While mental health experts now generally agree that the name “borderline personality disorder” is misleading, a more accurate term does not exist yet.

Most people who have BPD suffer from:

  • Problems with regulating emotions and thoughts
  • Impulsive and reckless behavior
  • Unstable relationships with other people

People with this disorder also have high rates of co-occurring disorders, such as depression, anxiety disorders, substance abuse, and eating disorders, along with self-harm, suicidal behaviors, and completed suicides.

According to the DSM, Fourth Edition, Text Revision (DSM-IV-TR), to be diagnosed with borderline personality disorder, a person must show an enduring pattern of behavior that includes at least five of the following symptoms:

  • Extreme reactions—including panic, depression, rage, or frantic actions—to abandonment, whether real or perceived
  • A pattern of intense and stormy relationships with family, friends, and loved ones, often veering from extreme closeness and love (idealization) to extreme dislike or anger (devaluation)
  • Distorted and unstable self-image or sense of self, which can result in sudden changes in feelings, opinions, values, or plans and goals for the future (such as school or career choices)
  • Impulsive and often dangerous behaviors, such as spending sprees, unsafe sex, substance abuse, reckless driving, and binge eating
  • Recurring suicidal behaviors or threats or self-harming behavior, such as cutting
  • Intense and highly changeable moods, with each episode lasting from a few hours to a few days
  • Chronic feelings of emptiness and/or boredom
  • Inappropriate, intense anger or problems controlling anger
  • Having stress-related paranoid thoughts or severe dissociative symptoms, such as feeling cut off from oneself, observing oneself from outside the body, or losing touch with reality.

Seemingly mundane events may trigger symptoms. For example, people with BPD may feel angry and distressed over minor separations—such as vacations, business trips, or sudden changes of plans—from people to whom they feel close. Studies show that people with this disorder may see anger in an emotionally neutral face and have a stronger reaction to words with negative meanings than people who do not have the disorder. – http://www.nimh.nih.gov/health/topics/borderline-personality-disorder/index.shtml

On the surface, it’s not out of the realm of possibility that one or more jurors could consider a mental disorder, one which drives a person’s impulsivity, a reason to spare a life. They could make the argument that Jodi couldn’t control herself and there are patterns to support that throughout her life. In other words, if Jodi didn’t have this “condition”, she never would have acted this way, taking some of the culpability away from her. BUT… here’s why I don’t think that will be the case…



And I’m not talking about the text book definition of premeditation that only requires a small window of time in which the defendant considered their actions. In this case, we have movie-style premeditation. The stuff that only screenwriters dream up. We have a clear record of venomous text communication between the victim and perpetrator weeks before, a stolen gun one week before, a rental car, changed appearance, gas cans, cell phone switched off, falsified journal entries… all of it amounting to clear thought and clear planning way in advance. A thousand miles in advance. Jodi is not mentally insane. A mental disorder is not the same thing as insanity and it’s imperative that Martinez makes that clear to the jury in closing. It all comes down to whether or not Jodi knew what she was doing. And it has been proven a hundred times over in this case that she did know what she was doing. If she didn’t, she would have been convicted of second degree murder, or possibly even manslaughter. The first jury spoke loud and clear and this current jury has to consider that.

In light of that, I think BPD as a mitigating factor will fail. I don’t think it’s enough to spare her life at this point.

What do you think?




7 Replies to “Will Borderline Personality Disorder Save Jodi’s Life?”

  1. I dont agree that jodi has BPD at all. Dr. Demarte is a good witness but that does neccessarily mean she diagnosed her correctly. The way jodi went so so much out of her way , had weeks to plan this has been proven beyond a doubt . The brutal way in which she stabbed him, his throat outweighs any BPD she may have.

    1. I called it long before DeMarte testified as I had recently met someone with BPD. So the diagnosis is spot on. Whether mitigating or not doesn’t matter anymore but just wanted to make it clear that her behavior as BPD is typical although not all BPD’s will kill because they don’t want to go to prison, they would probably if they could when someone disappoints them.. ie when that person is no longer under their control or tries to break off from them or reject them or refuse to be controlled by them.

  2. JA is definitely a psychopath. During the 1st trial, Dr. DeMarte could not Dx. JA with ASPD (Anti-Social Personality Disorder) becasue the DSM – IV was still in use and that version required that in order to Dx. anyone with ASPD there had to be documented proof of aggressive behavior towards people and animals prior to the age of 15 – labeled a Conduct Disorder. Now that the DSM – V is in use the rules have changed and there no longer is that requirement in order to Dx. someone with ASPD. It would not be helpful to have changed her diagnosis for this trial, strategy wise, but these are all just my guesses. The vast majority of people Dx. with BPD are much more likely to hurt themselves than to hurt anyone else. That is a fact. And the non stop lies that JA tells about unimportant matters and important matters does not fit with BPD. I am hopeful that the rumors about one of jurors being a psychologist is true, as that would be helpful to this jury not being fooled by the defense’s non-stop sex talk & their constant FOG to divert attention away from the facts of this case.

    1. Thanks, Nancy! This is an excellent post. In the past day, I’ve seen a handful of different people living with BPD speak up and say they do not believe Jodi is diagnosed properly. I can buy into the psychopath theory. She certainly seems to fit the bill.

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