In 1995, Ina Villarreal's partially decomposed body was found in a wheat field. Defendant Kevin Borman eventually told police that he had had a fight with Villarreal after she had gone out with another man and that he had killed her in self-defense.
At trial, Borman raised the defense of diminished capacity, offering the diagnoses of intermittent explosive disorder, dysthymia and depression. He stated that he was learning disabled with a history of self-abuse and low impulse control. Borman requested that the court instruct the jury that diminished capacity could be considered in determining whether he was capable of forming the necessary intent for the "act to have been premeditation." The court instructed the jury that diminished capacity can be considered in determining whether the defendant was capable of forming the necessary intent to premeditate. However, it also instructed the jury that mere personality characteristics, such as poor impulse control and quick temper, did not constitute a mental disease or defect for the purposes of diminished capacity.
Borman was convicted of murder. He appealed, contending that the trial court's instructions on diminished capacity were in error.
Holding: Affirmed. The trial court correctly used its discretion in providing the jury with an instruction on diminished capacity. With the given instruction, the jury was free to evaluate the evidence regarding Borman's disorders and determine whether they negated his ability to form the intent to kill.
 | Michael Welner, M.D. Chairman The Forensic Panel |
Dr. Welner comments: Since distinctions were made to prevent antisocial personality disorder from forming the basis of a psychiatric defense, courts have been sensitive to distinguish what is really illness, and what is personality. To the lay observer, someone with a defective personality is pretty sick. Therefore, some clarification is in order.
Personality disorders, and bad personality traits are distinguished by their overall benefit to the person who has them. Those with personality disorders therefore do not really endeavor to change, because their behavior is really practical or even desirable, rather than alien to them. The antisocial personality, for example, exploits others and therefore benefits from this enough to maintain his way of relating to the world. Getting over is part of what he wants to be. The narcissistic personality, grandiose and with a sense of entitlement, seeks to benefit by elevating his sense of stature. The needs of these and other personality disorders may fuel impulsive and temperamental bursts.
But impulse control may not be a part of a diagnosis. Intermittent explosive disorder is a perfect example of this; a condition of lethal power, quick and without regard, necessarily, for the object of the violence. Typically, the person with intermittent explosive disorder reacts to minor environmental provocation with out of control volcanic bursts. The target may be property, may be a person. What distinguishes this condition is the lack of memory for the event and the regret afterward, The kind of regret that would make Mr. Borman hide the body? A hint: there is no psychic benefit from the violence of intermittent explosive disorder. Through killing, Mr. Borman may have satisfied whatever psychic conflict he experienced at the idea of his girlfriend being with someone else.
The problem for defendants with these conditions is that they sound all too convenient an excuse to establish a diminished capacity. What could be more expedient than an explanation for a person who maintains the appearance of normalcy (but is something of a ne'er do well) and kills off his girlfriend?
Courts' over-reliance on diagnosis defeats the purpose of having expert input in the first place. Why? Because diagnosis alone provides no information on severity nor its application to the question of intent and premeditation. In diminished capacity cases, courts that find some diagnoses more viable means of diminishing capacity than other diagnoses ignore the variety of ways in which real mental illness limits. Reviewing objective information about the behavior of the criminal act and comparing it with the pattern of violence of each of these listed diagnoses enables the court to draw the line of when a condition is pertinent, or when the crime flowed from a personality problem. This is not a seat of the pants judgment to anyone in the court let alone a qualified forensic examiner.
| Robert Sherman, Esq. Greenberg Traurig LLP |
Robert A. Sherman comments: Bornian's holding teaches defense counsel to be careful what they ask for, because they just might get it.
Diminished capacity applies in circumstances where defendants are not legally insane, but the presence of mental disease is a mitigating or negating factor for the crime with which they are charged. The gravamen of the defense is the existence of mental disease as opposed to what has been termed "personality characteristics." Diminished capacity has been called a "junior version" of the insanity defense—not enough for complete acquittal, but enough to reduce a defendant's culpability. Therefore, diminished capacity can be used in three ways: 1) to mitigate the degree of the offense; 2) to negate totally the criminal intent necessary for conviction of a specific intent crime, or 3) in capital cases, to mitigate against the imposition of the death penalty.
WHAT BORMAN MEANS
Diminished capacity defense cannot be represented by mere personality characteristics.
Borman produced no evidence of insanity or otherwise being out of touch with reality. Although the insanity defense has various formulations, in essence what was missing here was not the existence of a mental disease or defect and proof that as a result Borman did not know right from wrong, or the nature or quality of his act. He did. Instead, defense counsel argued to the jury that Borman's disorders made it unlikely that Borman was able to coolly deliberate his actions or form the kind of premeditation which would have made his crime first degree murder. Counsel's strategy was appropriately narrow-give the jury a credible theory, which will mitigate the degree of the crime, rather than an attenuated argument, which they were likely to reject altogether. The jury apparently agreed since it found Borman guilty of the lesser included offense of intentional second degree murder. Normally, that conviction could have resulted in a far lesser sentence. However, the strategy backfired when the court allowed the state's motion for an upward durational departure from sentencing guidelines.
On appeal, Borman's only hope for a lesser sentence was to knockout the murder conviction altogether. Therefore, he made two arguments regarding the trial judge's instructions to the jury. First he argued that the trial judge's instruction on diminished capacity was erroneous because it did not allow the jury to consider diminished capacity as it related to whether he intended to kill the victim. Without a finding of intent Borman's culpability would have dropped from murder to manslaughter The higher court dismissed this argument based on the fact that defense counsel had never requested an instruction which would have allowed the jury to consider diminished capacity as it related to intent to murder. The defense theory went strictly to the issue of premeditation and the instruction requested by counsel was consistent with that theory. Trial counsel obviously believed that a credible argument could not be made that Borman did not intend his act.
Borman's objection to an additional instruction given by the trial court which stated the "mere personality characteristics, such as poor impulse control, short temper, frustration and feelings of despondency ...do not constitute a mental disease or defect, which brings the doctrine of diminished capacity into play," did not bolster his argument. As a matter of legal policy, allowing personality characteristics which are common in society to negate criminal responsibility would serve to condone violent criminal conduct. Put another way, criminals cannot seek refuge in the law for violent acts because they have low-self esteem. Borman argued that the "personality characteristic" instruction prevented the jury from considering whether he lacked the ability to premeditate. The appellate court disagreed. The jury showed no confusion as evidenced by its finding of the lesser degree of culpability of second degree murder. Defense counsel's strategy aimed at getting the jury to focus on the distinction between first and second-degree murder. That's what he wanted and that's exactly what he got.
