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The Unabomber Trial: Restless Defense

January 8, 1998 at 12:00 AM EDT

ELIZABETH FARNSWORTH: For more on the latest developments in Sacramento we turn to David Jackson, San Francisco Bureau Chief for Time Magazine; David Dratman, a criminal defense attorney; and Donald Heller, a former assistant U.S. Attorney now in private practice. David Jackson, let’s begin with this afternoon’s announcement by an official in the Sacramento sheriff’s office that Theodore Kaczynski may have attempted suicide. What is known about that?

DAVID JACKSON, Time Magazine: Well, apparently, they found that he had attempted suicide by hanging sometime during the night. It was interesting because there were no extraordinary measures in the courtroom today. None of the reporters knew about this until just a few minutes ago. But the attorney for the family had said earlier this afternoon after the hearing that Kaczynski, by being allowed to represent himself, was being allowed to commit federally committed suicide, and so I’m sure the family is going to say that this is yet another example of just how profoundly he fears going on trial with a mental illness defense.

ELIZABETH FARNSWORTH: Did he look or act different in the courtroom at all?

DAVID JACKSON: No, he didn’t, Elizabeth. He looked the same as he has every day in the trial. His family looked the same. Nobody treated him any differently. The marshals did not seem to give any special attention to him during the day either.

ELIZABETH FARNSWORTH: Okay. Let’s leave that aside for now. Bring us up to date on what happened in court today.

DAVID JACKSON: Well, the latest in this case, it just gets more bizarre every day. Yesterday afternoon Kaczynski had agreed to go forward with his own attorneys with their mental health defense. By the time the attorneys were brought together in the courtroom by the judge to formalize this decision Kaczynski had changed his mind yet again. This morning he changed it again and decided he wanted to represent himself. The judge decided that he should not allow him to do this before deciding on Mr. Kaczynski’s competency to stand trial. So right now the judge has solicited suggestions for psychiatrists to test him on that issue.

ELIZABETH FARNSWORTH: And what did Theodore Kaczynski’s defense say about that, about going to the psychological testers on this competency issue?

DAVID JACKSON: They are the only ones really who believe that he may be found incompetent. The prosecution thinks he’s competent. The judge has said on the record he believes he’s competent. The defense attorney’s position is that Mr. Kaczynski’s refusal to go along with their decision to plead a mental illness defense proves that he’s acting out of his own best interest and that this is evidence of incompetency to stand trial.

ELIZABETH FARNSWORTH: Now, backing up again just a bit so that we understand this. Yesterday, he wanted to substitute his defense attorneys, right?

DAVID JACKSON: Right. He changes his mind a lot here. He first said he would agree to go forward with their defense. Then he decided really minutes later that he wanted an outside attorney to represent him solely for the reason that this attorney would not use a mental illness defense. The judge said no to that; it was too late for a new attorney.

ELIZABETH FARNSWORTH: And, David Jackson, what happens in the courtroom? Does he speak for himself to the court, or do his defense attorneys speak for him, even when he’s trying to get rid of them?

DAVID JACKSON: Today he spoke only through Judy Clarke, one of his attorneys. And he did speak out once just to answer a question yes, but he made his wishes known to Judy Clarke, and they are representing what his feelings are. But the judge has, in fact, brought back into the case a third lawyer who is appointed solely for the reason to represent Mr. Kaczynski in this conflict between his defense counsel.

ELIZABETH FARNSWORTH: All right. Mr. Dratman, what is the law on changing attorneys and also on representing yourself?

DAVID DRATMAN, Criminal Defense Attorney: The judge has discretion to determine whether a change in counsel is appropriate. And the timeliness of the request is a key consideration. Under the 6th Amendment a defendant in a criminal case has the right to represent himself under certain circumstances. In this case the request was made to substitute Tony Sera from San Francisco into the case but without a time line as to when he could be prepared and begin the defense. The court ruled yesterday, I believe, that that was an untimely request and denied the request. However, today following events that occurred in the courtroom yesterday, when the judge declared that the defense team and not Mr. Kaczynski was in control of the issue of whether a mental status defense would be presented, Mr. Kaczynski apparently changed his mind and said, I think to everyone’s surprise, that he wanted to represent himself.

ELIZABETH FARNSWORTH: And what is the law on that?

DAVID DRATMAN: Well, a defendant in a criminal case does have a right to represent himself. The judge can rule that–and he–the judge has discretion to rule that that request is untimely; however, Judy Clarke, on behalf of Mr. Kaczynski said that he would be prepared to proceed immediately. And that issue was set aside. That would have settled the matter if the judge ruled that Mr. Kaczynski’s request to represent himself was untimely.

ELIZABETH FARNSWORTH: What do you mean by untimely?

DAVID DRATMAN: Well, there has been case law that said that a request to represent oneself when made just before the commencement of evidence is not timely; that is, you have to make the request sometime before that. However, the judge didn’t appear to be concerned about that. His concern was more on the issue of whether or not Ted Kaczynski was competent to represent himself. And that brought up the whole issue of whether or not he was competent to stand trial.

ELIZABETH FARNSWORTH: Mr. Dratman, what kind of psychological testing is used to determine competency to represent oneself, which is what I gather is now going to happen with Mr. Kaczynski?

DAVID DRATMAN: That’s a very good question. The court is probably going to ask whatever mental health experts are appointed to answer two questions: Does Mr. Kaczynski understand the nature of the proceedings; and two, is he able to cooperate and assist in his own defense? The defense raised the doubt today as to Mr. Kaczynski’s mental competency because they asserted to the court for the first time that they believe that Mr. Kaczynski’s mental illness interfered with his ability to assist in the only defense available in this case, and that is the mental status defense.

ELIZABETH FARNSWORTH: Mr. Heller, from a prosecutor’s point of view, what are the challenges represented if a defendant does represent himself?

DONALD HELLER, Former U.S. Attorney: Well, one, you need to be very cautious to protect the record to protect against plain error, as opposed to error that occurs because of failure to object to evidence. When you give up your right–

ELIZABETH FARNSWORTH: I’m sorry. I didn’t understand that.

DONALD HELLER: Well, for appellate review there’s something called plain error, where an error occurs in the trial even though there’s no objection by the defense lawyer. It’s error that could result in a reversal. When you give up your right to competent counsel, which you do by self-representation, you waive your right to challenge ruling–decisions made because of failure to object. But you don’t give up your right to object to plain error, plain error on appeal. So you have to be overly cautious in controlling what evidence goes in and not taking advantage of someone because he’s representing himself.

ELIZABETH FARNSWORTH: So what does the prosecution, do you think, want to happen next? What do they want the outcome of this to be?

DONALD HELLER: Well, they want to move forward with a case. And if Kaczynski represents himself, that’s fine. I think the government prefers the mental issues not to be raised. And so I think they would love to see Kaczynski represent himself and not raise any mental issues.

ELIZABETH FARNSWORTH: And if there was a suicide attempt–and we know very little about this at this point–how would it influence what happens next?

DONALD HELLER: Well, there could be some evidence of lack of stability and incompetence, although I don’t think the standard that the court must use is really implicated by a suicide attempt if, in fact, it was a real suicide attempt. And there’s some real question about that right now.

ELIZABETH FARNSWORTH: Mr. Dratman, what happens to the defense lawyers if Theodore Kaczynski defends himself?

DAVID DRATMAN: Well, there are three options. First of all, the judge has asked the defense to consider whether or not they could simply accede to his request that they drop the mental status defense. And at this point that’s in limbo. They are in a very difficult position, a position that no defense lawyer wants to be in. You want to represent your client vigorously, and in this case save his life, and he’s basically attempting to take away the only way that they have available to save his life. The other option is that if Mr. Kaczynski represents himself, they could be appointed as standby counsel to assist him in the presentation of the defense and ultimately even take over the presentation in the penalty phase and still present the mental status defense. And finally, there could be a hybrid representation; that is, that the court could allow Mr. Kaczynski to represent himself, as well as having a defense counsel representing him, and sharing those responsibilities.

ELIZABETH FARNSWORTH: And, Mr. Dratman, how unusual is this? Have you been involved in any cases like this?

DAVID DRATMAN: Both Mr. Heller and I were involved in a case like this about 22 years ago. I was a law student at the time. It was Lynette Fromme’s case, and he was the prosecutor in the case.

ELIZABETH FARNSWORTH: And remind us what that case was.

DAVID DRATMAN: In that case in Sacramento Lynette Fromme was accused and ultimately convicted of attempting to assassinate the then president of the United States. And there were significant issues as to her capability to have–her capacity to form the intent to assassinate him. There was a potential mental defense in that case. Here first defense team was fired. She ultimately represented herself with standby counsel, who ultimately took over the defense of the case.

ELIZABETH FARNSWORTH: Mr. Heller, what do you think Theodore Kaczynski is up to here?

DONALD HELLER: Well, I frankly think he really wants to create chaos. And if you read his manifesto, that’s what the manifesto was about. And so I think this is the ultimate opportunity that he will have and the last opportunity to create further chaos. It’s his means of sending another bomb without hurting anyone physically. And so he’s going to do everything he can to try to disrupt this proceeding. I don’t think–I really don’t think he’s incompetent. I think he’s very competent, although very mentally ill. I think he knows exactly what he’s doing, and he’s trying to create chaos.

ELIZABETH FARNSWORTH: Mr. Dratman, what’s your opinion on that?

DAVID DRATMAN: I have no disagreement with the conclusion that Mr. Kaczynski is mentally ill. I have not spoken with Mr. Kaczynski, so I don’t know what his agenda is. I have listened to his defense lawyers, who are excellent criminal defense lawyers. And they believe that Mr. Kaczynski’s belief that he is not mentally ill and that he does not want any disclosure or discussion of mental illness is longstanding and heartfelt, and that he is acting sincerely in that belief. And that, of course, is part of his mental illness.

ELIZABETH FARNSWORTH: David Jackson, what happens next?

DAVID JACKSON: Well, the judge is going to appoint some psychiatrist to examine him. The big surprise today was that Mr. Kaczynski agreed to submit to an examination by psychiatrists for the question of determining whether he’s competent to stand trial. He had, as you remember, refused to agree to examinations by government psychiatrists on the issue of mental illness. But when questioned about that, his attorneys said that he’s agreed mainly because he felt that he had no other choice in order to present his own defense without a mental illness claim.

ELIZABETH FARNSWORTH: And David, the judge made some decisions about what would be permissible in the opening statements. Tell us about that and what it indicates about what will be said.

DAVID JACKSON: Yes. And this is, of course, depending on if we have opening statements anytime soon. The judge basically gave the defense permission to show pictures of Mr. Kaczynski when he was arrested, which, as you remember, shows a very bedraggled, dirty, unshaven man, compared to clean-cut pictures of him as a college student, and the judge also gave permission to the prosecution to show statements that were highly incriminating related to other uncharged crimes in their opening statements. So both sides won a little bit in those decisions.

ELIZABETH FARNSWORTH: Mr. Dratman, any comments about opening statements?

DAVID DRATMAN: Well, the judge actually rejected the prosecution’s attempt to limit the defense’s presentation of circumstantial evidence regarding Mr. Kaczynski’s mental state and denied the government’s motion to limit that, which I thought was significant, and also allowed the defense to present other writings in the course of Mr. Kaczynski’s diaries and such that it may add to their ability to argue that he, in fact, is mentally ill. And that was–that was not surprising, considering the state of the law. What was surprising is that the government even filed the motion.

ELIZABETH FARNSWORTH: And Mr. Heller, we have just a few seconds left. Any comments about what may be coming in opening statements?

DONALD HELLER: Well, I think if Ted Kaczynski is permitted to make an opening statement, I think when he’s done, there will only be four people in that courtroom that will think he’s not insane. That will be Mr. Kaczynski and the three prosecutors.

ELIZABETH FARNSWORTH: Okay. Thank you all very much.