Kaczynski: A fool for a client? Unabomber: The suspect's attempt to dismiss his lawyers has experts pondering the rights of a defendant who -- though he insists he isn't -- may be insane.

SUN JOURNAL

January 08, 1998|By Sandy Banisky | Sandy Banisky,SUN NATIONAL STAFF

Theodore J. Kaczynski doesn't like his lawyers. And because of that, the Unabomber suspect's murder trial, one of the highest-profile federal trials of the year, was stopped as it was poised to begin in Sacramento, Calif., Monday.

Kaczynski -- brilliant, perhaps mentally ill and accused in a 17-year-long string of bombings -- spoke out in court just as Judge Garland E. Burrell Jr. took the bench. For three days, the trial was stalled as his dispute with his attorneys over defense tactics commanded the court's attention in closed-door hearings.

Late yesterday, Burrell announced that Kaczynski would retain his lawyers.

The stakes are high. Kaczynski stands accused in California on 10 counts related to four bombings, including two murders. If convicted, he could be sentenced to death.

Under the Sixth Amendment to the U.S. Constitution, Kaczynski, like all criminal defendants, has a right to counsel. He also has a right to represent himself. Defendants have those rights even though, in rejecting a lawyer's help, they may be dooming themselves to conviction and to the death penalty.

"Here you've got this very bright, very independent-minded and very ill individual who has his own thoughts on how he wants to handle his life -- and perhaps the end of his life," says Joshua Dressler, a professor at Sacramento's McGeorge School of Law who has been attending the trial.

The feud leaves legal analysts discussing the ethical and constitutional issues that Kaczynski's protests raise.

Lawyers agree that they are ethically bound to provide their best advice to a client. But they also agree that the client has the right to reject that advice.

In the Unabomber case, Kaczynski refuses to let his lawyers argue that he is insane or, short of that, that he has a mental defect. He will not let mental illness be raised even though it is the only strategy, many legal analysts say, that has a chance of saving him from the death penalty.

Still, "he's the boss," says Andrew Radding, a Baltimore lawyer and former federal prosecutor. According to lawyers' rules of professional ethics, "if the client says, 'I absolutely refuse to allow you to use that defense,' the lawyer is going to have to listen to the client."

Even if the client appears to be walking toward execution?

"Absolutely," says Richard Bourne, who teaches professional ethics at the University of Baltimore law school. "You work for him. The only obligation is to be sure he's making a rational choice."

What's rational? Even people with psychiatric problems can make legally competent decisions, lawyers and judges say.

"Some people want to be martyrs," Bourne says. "Some people want to lose to make a point."

It is possible, Bourne says, that Kaczynski wants to use the trial for a forum to express his hatred of technology and of modern society. He may mount no defense. Some lawyers, in those circumstances, may believe their client is not competent -- "and they should pull out every stop to get him declared incompetent," Bourne says, even over the client's protest.

"If he's interested in saving his skin he'd be well advised to listen to counsel," Bourne adds. "But I'm not sure he's interested in saving his skin. Now, by your standards that might make him crazy, but he's not legally crazy."

The lawyers' ethical rules don't sharply address the issue. "There's no ethical canon that provides an absolutely clear answer to a question that involves a client who chooses martyrdom," Dressler says.

The judge has to balance the rights of the defendant against the court's need to move the trial forward. Any decision he makes -- to let the accused fire his lawyers, to name new lawyers, to delay the trial further or let it proceed -- is fraught with issues that could be raised on appeal.

"The judge is walking a tightrope here," says Byron Warnken, a Baltimore lawyer and University of Baltimore law professor. If a defendant is allowed to ask for different lawyers as the trial opens, new lawyers would likely ask for time to prepare for trial. That could take months -- which probably would mean dismissing the jury and starting the weeks-long process of seating a new panel.

"Sometimes it's a tactic," Radding says. "If I fire my lawyers, I know this trial can't go forward."

But "the judge is hesitant to ignore [the defendant's protest] and not deal with it, Warnken says. "He doesn't want to intrude on the defendant's right to a fair trial."

If the defendant wants different counsel, the judge has several options, analysts agree.

"He can say, 'Too late. These are your lawyers,' " says Bourne.

Or, he can agree to the defendant's request and discharge the defense team. He could bring in new lawyers. He could let the defendant represent himself and name his former lawyers as legal advisers who could sit with him and offer advice on courtroom procedure.

Or he could let the defendant handle his own representation alone -- which lawyers and judges say is the least attractive choice.

Even the smartest defendant isn't a trial expert.

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