Can Kaczynski Run His Own Defense?

It's the defense lawyer's worst nightmare. A client, distraught and overwhelmed by the lack of control imposed by a complicated legal system, wants to go it alone.

Usually, the drama remains out of public view. But the Unabomber trial, with the added twist of questions about the defendant's mental state, has delivered it into America's living rooms. With it, comes a look at the clash of legal principles involved when someone wants to act as his own courtroom attorney.

Theodore Kaczynski will undergo psychiatric evaluation beginning today to determine if he's competent to stand trial and defend himself against charges he killed two Sacramento men and maimed two others in an 18-year bombing campaign.

Ironically, questions about Mr. Kaczynski's mental state are at the heart of his request to be his own attorney. His court-appointed lawyers say he is a paranoid schizophrenic and hope a mental-disorder defense will save him from the death penalty, if he's found guilty. Kaczynski, angered over that defense strategy, asked to fire his lawyers (which the judge rejected) and be his own attorney.

"What we're seeing is not all that unusual," says Peter Keane, chief assistant public defender in San Francisco. "But in 90 percent of these situations, the defense team is able to talk the person out of it. You beg, plead, cajole, massage, whatever it takes to convince them they'll get ground up like hamburger if they try to proceed alone."

US District Court Judge Garland Burrell Jr., who legal analysts give high marks so far for his handling of the case, is at a critical juncture. He's clearly treading carefully to avoid fertile grounds for subsequent appeal.

Right to defend oneself

"He's weighing chaos in his courtroom against the old-fashioned principle of the inherent autonomy and rights of the defendant," says Robert Weisberg, law professor at Stanford University in Palo Alto, Calif. Mr. Weisberg, like a number of legal scholars and attorneys, says Judge Burrell is under no obligation to let Kaczynski act as his own attorney. Although the so-called Faretta ruling by the US Supreme Court in 1975 emphasized a defendant's basic constitutional right to defend himself, the judge is on solid ground to deny it when the request comes after the trial is under way, as is the case here, say legal scholars.

Nonetheless, the judge has indicated an inclination to approve Kaczynski's request, if the defendant is found competent. Unclear is the level of competency Burrell will ultimately demand. The threshold for being judged able to stand trial is fairly low, basically that the defendant is able to understand the charges against him and has the ability to cooperate with counsel. The grounds for competency to act as your own attorney are less established.

"The competency standard to represent yourself in court ought to be higher" than that for just standing trial, argues Claire Finkelstein, a law professor at University of California at Berkeley. She worries that should judges begin granting the right to self defense too easily - in cases such as this, for instance, after the trial has begun - it could be demanded more often by defendants eager to use the courtroom as a forum for their political or personal agendas.

Though Kaczynski has a strong anti-modern, anti-technology philosophy that includes a belief that society "intends to destroy him," according to a psychiatric report done for his defense team, his insistence on defending himself may be more heartfelt than calculating.

Kaczynski "is not manipulating this case. It is just that this is an unbearable situation for him. He has lived with this fear all his life - this fear of being labeled mentally ill," said defense attorney Judy Clarke last week.

Whatever the judge ultimately rules, the demand for self representation hasn't been so sharply focused in the public spotlight since Colin Ferguson was allowed to be his own attorney in 1995 against charges of mass murder on a New York commuter train. He was convicted on all counts in a case that exposed full-blown the risks of acting as your own defense attorney.

Though the frequency of acting as one's own attorney in civil cases has skyrocketed in recent years, experts see no similar trend in criminal cases. Economics often drive citizens to avoid the cost of a lawyer in divorce and other civil matters. Against criminal charges, defendants are entitled to court-appointed legal counsel.

Nonetheless, when it does arise, the stakes are high.

"Does a client control a case or a lawyer? These issues come up constantly in legal circles. Exactly what is the client's right in running a trial? The traditional view is that the lawyer runs the case. I think there is some trend away from that, toward trying to involve the defendant more. It's like medicine and the debate over the rights of the patient," says Charles English, a defense attorney in Santa Monica, Calif. In the end, though, he says the lawyer must control the legal strategy.

Burrell agreed in this case, determining last week that Kaczynski could not change lawyers - Clarke and Quin Denvir - or reject their strategy. The judge has asked for the competency report, to be conducted by US Bureau of Prisons psychiatrist Sally Johnson in the Sacramento County jail, by Friday.

Some blame the encroaching messiness of the trial on the government's rejection, reported in December by The New York Times, of Kaczynski's offer to plead guilty in exchange for avoiding the death penalty. These critics say accepting that plea would have effectively put the defendant behind bars for the rest of his life, the likely outcome even if the trial runs to conclusion, given their belief a jury is unlikely to sentence him to death amid the questions about his mental state.

Suicide attempt?

Those questions intensified last week when evidence emerged that Kaczynski may have attempted suicide the night before opening arguments were to be heard.

Burrell's decision on whether the Montana recluse can represent himself entails the consideration of important legal issues. But those following the case closely also worry about a scenario that could shake public confidence, once again, in the American justice system. "If the judge finds someone competent to defend himself who may have just attempted suicide, people are going to wonder," says Mr. English.