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Unabomber Suspect Theodore Kaczynski: Standing Trial?

January 16, 1998 at 12:00 AM EDT

ELIZABETH FARNSWORTH: The trial of the Unabomber suspect was delayed this week as a federal psychiatrist conducted tests to determine Theodore Kacyzinski’s competence to stand trial. The psychiatrist was expected to hand over the confidential report to the judge late today. We take up the issue of mental competency and the law now with two experts: Peter Arenella, a former criminal defense attorney who teaches at the UCLA Law School, and Dr. James Cavanaugh, a psychiatrist, who’s the director of the Law & Psychiatry Section at Rush Medical College in Chicago. Thank you for being with us. Dr. Cavanaugh, federal authorities said today that Dr. Sally Johnson, the forensics psychiatrist who’s conducting this evaluation, spent nineteen hours over four days quizzing Theodore Kacyzinski. What was she asking him?

DR. JAMES CAVANAUGH, Rush Medical College: She certainly was asking him very basic questions about his more recent psychological and psychiatric functioning, was delving into his thought processes, his mood status, was certainly getting some relevant history, but was focusing more on what we would call his current mental state to assist her in coming to an opinion regarding this issue of current competency to stand trial.

ELIZABETH FARNSWORTH: So what is the main question she’s trying to answer to determine that?

DR. JAMES CAVANAUGH: There are really two questions. The first question is: Does he have an understanding of the charges against him, the various elements of the criminal justice system? Does he know what the judge does, what the jury does, and so on–a cognitive understanding of the system that he is encountering now. The second part is: Is he able to effectively work with his attorneys in his own defense?

ELIZABETH FARNSWORTH: Peter Arenella, explain this. The question is really now whether he can defend himself. But that’s not what she’s looking at right? Explain this to us.

PETER ARENELLA, UCLA Law School: Well, there are several problems here. The first problem is that the concept “competency to stand trial” cannot be equated to an evaluation of whether Mr. Kacyzinski is presently mentally ill. Many mentally ill defendants are found legally competent to stand trial because the standard is not that demanding. It simply asks, as the doctor suggested, whether or not Mr. Kacyzinski does understand the nature of the legal proceedings against him and whether he’s capable of engaging in rational discussion to assist his defense counsel. And there’s little question in this case that Mr. Kacyzinski is legally competent to stand trial. The problem that Judge Burrell has is that under Supreme Court decision if a defendant is legally competent to stand trial, that means he is also legally competent to make a knowing, voluntary, and intelligent waiver of his right to counsel and then proceed to represent himself. And that is what Mr. Kacyzinski apparently wants to do at this juncture because he cannot get his defense lawyers to do his bidding, and that is not to raise any issue of his mental illness, either directly or indirectly at the guilt phase, or, more importantly, at the penalty phase. So, in a sense, what we have here is a situation where under present Supreme Court doctrine Mr. Kacyzinski has the legal and constitutionally right to really commit legal suicide, and that’s apparently what he’s bent on doing.

ELIZABETH FARNSWORTH: There’s no procedure, Mr. Arenella, for a different standard for representing yourself than just to stand trial? There’s no law on that?

PETER ARENELLA: Well, in fact, this very issue was raised at the United States Supreme Court in a case called Gadinas Vs. Moran several years ago. The situation actually has some striking parallels to this case, with one important exception. Mr. Moran, after killing several individuals and initially pleading “not guilty,” was disturbed that his defense lawyer, like Mr. Kacyzinski is disturbed, was going to rely on mental illness as a mitigating factor. And what Mr. Moran decided to do was to plead guilty, to waive his right to counsel, plead guilty, and then offer no defense at the capital sentencing stage, which effectively meant that the jury would sentence him to die. That’s exactly what occurred. And the issue was raised before the Supreme Court as to whether or not there should be a higher standard for competency to represent oneself than simply competency to stand trial. And the Supreme Court explicitly rejected that argument. And so what we have here is a very frightening scenario for many of us of a defendant who clearly is quite mentally ill, probably legally sane, accountable for his actions, but the key question of his mental illness and the role it played in the crime, which should be a factor at least that the jury should consider at the death penalty phase, might not be considered at all if Mr. Kacyzinski is allowed to represent himself.

ELIZABETH FARNSWORTH: Dr. Cavanaugh, do you think that’s frightening, or do you think that this competency procedure, as it’s currently working itself out in Sacramento, will work?

DR. JAMES CAVANAUGH: I think that the current procedure that we have, which certainly is not without its flaws, generally works in most situations. One has to realize this is a most unusual case, perhaps once in a century type of set of fact patterns. What we need to look at in addressing the broader question of what best serves the public and what is the best public policy, legal policy to have, is on a day-to-day, in and out basis how does our current standard work. That standard has been formulated in 1960 by the U.S. Supreme Court in the manner that I mentioned earlier and has been revisited in the manner that the professor mentioned. On a day-to-day basis we are finding that this standard works, allows the individual to go forward to get resolution of their criminal charges in most cases, and it would be my view that we do not want to alter our basic public policy, even though we are confronted with this most unique case currently.


PETER ARENELLA: If I could just jump in, I think it’s a confusion to conflate two issues: One is whether or not we should change a standard for competency to stand trial. And like the doctor, I agree that the standard we presently use for legal competency to stand trial, albeit a very minimal one, is probably the best policy that we can come up with, because one has to look at the consequences of a higher standard that would lead to many more defendants being found incompetent to stand trial. So I agree with the doctor about that. But there’s a separate issue here, and that is whether or not in a death penalty case a defendant who is legally competent to stand trial merely by that fact should be seen as competent to represent himself and then do so in a manner that prevents a fair adjudication of what really one of the most central issues in this case is, the impact of his mental illness on his criminal activities, not to deny his accountability but simply on with this question on what this case is really about, how much punishment he should receive.

ELIZABETH FARNSWORTH: Dr. Cavanaugh, do you have response to that? I’m sorry, Cavanaugh. I’m sorry for mis-pronouncing your name.

DR. JAMES CAVANAUGH: That’s all right.


DR. JAMES CAVANAUGH: I do not fundamentally disagree with the professor, but it is part of the origin of our understanding about the rationale behind the concept of fitness to stand trial, that an individual has the right to operate in the manner that Mr. Kacyzinski has even if it does not appear to be in his best interest because one of the purposes that the fitness to stand trial concept was developed in the first place was to assure the autonomy and individual right of the person to defend themselves in the manner that they felt was in their own best interest as wrong or misguided as it might be.

ELIZABETH FARNSWORTH: Dr. Cavanaugh, excuse me one second. Does the judge have to accept the forensic psychiatrist’s recommendations?

DR. JAMES CAVANAUGH: No. My understanding of what will happen, after Dr. Johnson’s report is submitted, is that then there will be a formal judicial hearing in which whatever she says, I would assume, is going to be contested either by the prosecution or the defense. So there will be another stage here, a full dress hearing on the issue of competency, and the judge will render his opinion.

ELIZABETH FARNSWORTH: And if he is found incompetent, what happens?

DR. JAMES CAVANAUGH: My best guess is that if he is found incompetent, he would be sent to one of the federal maximum security forensic hospitals, such as at Butner, North Carolina, where John Hinckley was at one point, or a similar facility in Rochester, Minnesota, to receive treatment until that time that he can be found fit to stand trial.

ELIZABETH FARNSWORTH: And, Mr. Arenella, if he’s found competent, what happens?

PETER ARENELLA: Well, then we have a legal nightmare really for both sides. If he is found competent–and I believe he will be found competent to stand trial–he will then pursue his motion to represent himself. And at this point the government has actually filed a brief that’s asking the judge to order his defense lawyers to avoid the travesty of Mr. Kacyzinski representing himself by doing Mr. Kacyzinski’s bidding. And, indeed, the prosecutors have suggested that if the defense lawyers do not agree with Mr. Kacyzinski and do his bidding, that they should be found in contempt of court.

ELIZABETH FARNSWORTH: In other words, you mean by doing his bidding represent him without the mental defect defense?

PETER ARENELLA: That’s exactly right. And that would be highly unethical, I believe, for the defense to do, even though under the law Mr. Kacyzinski does have the final say so on the nature of the defense offered for him.

DR. JAMES CAVANAUGH: I think another problem could be that if he is found competent, that in the subsequent course of the trial, he begins to demonstrate behaviors that clearly suggest a more acute deterioration of his mental state will have to have another competency review at that point. And that would be especially problematic if, in fact, Mr. Kacyzinski is allowed to represent himself. And that’s one of the dangers here of equating a competency to stand trial standard with a competency to represent your self standard. Now, I just want to add that the issue here isn’t about autonomy of someone who is a normal individual who might commit legal suicide because they don’t know the law. It’s clear that defendants have a constitutional right in that sense to commit legal suicide. But the problem is applying this notion of autonomy to someone who is suffering from a very severe mental illness. That’s where the law breaks down.

ELIZABETH FARNSWORTH: Okay. Thank you both very much.


ELIZABETH FARNSWORTH: Okay. Thank you all very much.