When Defendants Won’t Help Defenders Make a Case for Them

With his client facing a possible death sentence, defense attorney William G. Kelley seemed helpless recently when a judge asked him a question about his client, accused mass murderer Charles Ng.

Seated only inches away from Ng, Kelley paused in front of a silent courtroom and finally said, “It’s very difficult to speak for Mr. Ng, since he doesn’t talk to me.”

The standoff between the public defender and his client brings into focus the question of what happens when there is a clash of wills between a defendant and an attorney, a situation that also helped determine the outcome of the trial of Unabomber Theodore S. Kaczynski.

Legal experts say that a trial can be derailed or a verdict reversed on appeal if a judge makes the wrong decision in deciding, for example, to replace an attorney or refusing to do so on behalf of a defendant who may be trying to manipulate the legal system.

“The solutions aren’t very attractive,” said Stephen Bright, who teaches courses on capital punishment at Yale, Harvard and other universities.

“One is, let a defendant represent himself, which [can be] an unmitigated disaster,” he said. “The second one is, force an unwanted attorney who may be, as in Kaczynski’s case, pursuing a defense over the defendant’s objection.”

Kaczynski had refused to be labeled mentally ill by his attorneys, who believed he was a paranoid schizophrenic. He managed to escape a possible death sentence after a plea bargain was struck with federal prosecutors. Several legal experts say that in these situations, defendants usually aren’t so fortunate.

“It makes it very difficult, because you are already fighting an uphill battle,” said Natman Schaye, a death penalty expert for the National Assn. of Defense Lawyers. “It’s almost like having a patient waking up in the middle of surgery and telling the doctor what to do.”

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A defendant can decide whether to have a jury trial, accept a plea bargain, testify on his own behalf and choose to pursue an appeal. Not so clear is to what degree a defendant has the right to participate in his own defense.

“Ordinarily, lawyers are supposed to adhere to the client’s wishes,” said Laurie Levenson, associate dean of Loyola Law School. “On the other side, you have strategic decisions that are up to the lawyer. The gray area is what happens on major decisions that affect the client’s life.”

Conflicts with his attorneys have been one of the major reasons why Ng has still not gone to trial 13 years after his arrest for the murders of 12 people in Northern California. Ng was arrested in 1985 in Canada, where he fought extradition for six years until Canada’s Supreme Court sent him back to California. He has made numerous motions since 1991 to have his attorneys replaced and at one point asked to represent himself.

The current standoff threatens to further complicate a case already expected to be one of the longest and costliest criminal trials in California history.

The latest judge assigned to the case, Orange County Superior Court Judge John J. Ryan, has so far refused to allow Kelley to step down despite the public defender’s desire to do so. But Ryan has ruled that the attorney of Ng’s choice, San Francisco Public Defender Michael Burt, can join the existing defense team.

Burt has so far refused to do so because he insists he won’t be ready by the trial’s scheduled starting date in September.

The tension is expected to mount further on April 20, the scheduled starting date of a hearing in which Kelley will try to have Ng declared incompetent to stand trial. Kelley claims Ng has an “irrational obsession” with Burt that prevents him from cooperating with his current attorneys.

Ng claims it is Kelley’s incompetence in defending him that is causing his mental problems.

“There is reason to believe that Ng would shut down on anybody who is involved in taking him through the process,” observed Robert Pugsley, professor of criminal law at Southwestern University School. “Either the system throws up its hands and gives up its attempts to bring this man to justice or it bites the bullet and proceeds.”

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Veteran defense attorney George Peters found himself in a similar position to Kelley’s when he was appointed to defend Jonathan D’Arcy, accused in 1993 of dousing a Tustin woman with gasoline, then lighting her on fire. The woman died.

“I’ve always been upset by that case,” Peters said recently.

D’Arcy, who was eventually convicted and sentenced to death, tried to dismiss Peters in a squabble over defense tactics when he went to trial for the murder of Karen LaBorde. Peters believed D’Arcy suffered from severe mental problems and wanted to base his defense on that. But D’Arcy, who never denied throwing the gasoline on LaBorde, believed the fire was ignited by a space heater.

D’Arcy had several disagreements with Peters in open court, staged a months-long hunger strike, declared to the judge that he wanted to be put to death and acted as his own attorney in the early stages of his case.

“Defendants make choices,” Peters said. “They can either represent themselves or they can have an attorney. You can’t have your cake and eat it too. When the state is providing a paid attorney, you have an obligation to at least try and cooperate.”

But Peters, who also briefly represented Ng in pretrial hearings, said one of the problems is that some defendants may be somewhat mentally ill and might not be capable of acting in their own best interests.

“Some are very erratic, and those are the people whose trust you are never going to gain,” he said.

In these situations, Peters said, a defense attorney has a rough road.

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“Doing these cases are tough enough, but when you are fighting against your own client, it really distracts you from communicating what you want to tell a jury,” he said. “You put in a lot of effort, a lot of studying and thought and you are representing someone that everyone thinks is a monster. When your client shows no appreciation for your effort, I think anyone would feel uncomfortable.”

Orange County Deputy Public Defender Denise Gragg, who has participated in several death penalty trials, said attorneys must stand firm if they believe they are doing what is best for their clients.

“We’re not in the business to hold their hands on the way to self-destruction,” Gragg said. “The most courageous thing an attorney can do is to do what he or she thinks is right for a case regardless of whether it angers the defendant.

“It’s the easy way out to do what a defendant tells you to do if you know it’s the wrong thing. Our job is to make sure their defense is presented as effectively as possible.”