Judge Faces Dilemma in Kaczynski Defense Rift

In a case already fraught with legal twists and turns, Unabomber trial judge Garland E. Burrell Jr. may face yet another tough choice: Should Theodore Kaczynski be allowed to design his own defense if he is found competent to stand trial?

Federal prosecutors maintain that Kaczynski’s attorneys, Quin Denvir and Judy Clarke, should respect his wishes and drop plans to present what they consider his best defense: evidence of mental illness. Kaczynski has said that he doesn’t want to be labeled a “sickie.”

The prosecutors strongly urged the judge, in court papers filed last week, to order Kaczynski’s attorneys to do as he wants, under threat of contempt sanctions.

Clarke has shrugged off as inappropriate questions about whether she would defy an order from Burrell compelling the defense to drop the mental illness defense. Kaczynski’s lawyers believe that he is a paranoid schizophrenic.

But what if Clarke and Denvir, her equally well-respected co-counsel, balk at the prosecution’s suggestion, as they have hinted in previous court sessions? What if Denvir and Clarke say that in good conscience they can’t follow such an order; that they are bound by their professional ethics to present the best defense they can?

“It’s a perfectly posed dilemma . . . because the law is unclear on these issues,” said William Portanova, a former assistant U.S. attorney who is watching the trial for ABC television. “No matter which way Judge Burrell rules, there will be plenty of room for criticism.”

Legal scholars predict that the issue could be the next difficult hurdle in the case. Some suggest that it could trigger a courtroom showdown between the judge and Denvir and Clarke, if he requires them to go where they don’t want to go. Or Burrell might seek to appoint new defense lawyers.

Either way, it would probably further delay the trial, now halted while Burrell reviews the confidential findings of Dr. Sally Johnson, the court-appointed psychiatrist who interviewed Kaczynski at the Sacramento County jail last week to determine whether he is competent to stand trial.

Burrell could shed light on his view regarding the defense team at a hearing scheduled today. The proceeding also could offer some clues about Johnson’s sealed report filed late Saturday.

The judge appointed Johnson to examine Kaczynski after the alleged Unabomber apparently tried to commit suicide and changed his mind and asked to act as his own attorney.

Kaczynski, 55, faces charges related to two fatal Sacramento blasts and bomb attacks that seriously injured two men in Tiburon, Calif., and New Haven, Conn. Kaczynski has pleaded not guilty. If found guilty, he faces the possibility of the death sentence.

Authorities maintain that Kaczynski is the anti-technology bomber responsible for a string of attacks that began in 1978 and resulted in three deaths and 29 injuries.

His trial is scheduled to start Thursday.

At the heart of the case’s latest puzzling issue is who is in control of the trial and what happens if a defendant is at loggerheads with his own lawyers.

In their filing, prosecutors cited American Bar Assn. guidelines that spell out how a defendant basically controls five decisions: the plea, acceptance of a plea bargain, choosing a jury trial, whether to testify and pursuit of an appeal.

However, they acknowledged, “the standard does not address the difficult question of whether counsel or the defendant controls the choice of defense.”

Gerald Uelmen, a professor at Santa Clara University School of Law, said that in his view three decisions are controlled by the client: what plea to enter, whether to waive a jury trial and whether to testify.

“With respect to those decisions, the lawyer must abide by the wishes of the client,” Uelmen said. “But as to everything else, they are regarded as tactical decisions . . . which the professional judgment of the lawyer controls.”

If the defense team is ordered to put on what it views as an inappropriate defense, “they would have to ask to withdraw,” Uelmen said, and if Kaczynski wants a new attorney the court would have to appoint one.

Whether Burrell would allow Clarke and Denvir to pull out of the case is far from clear.

“Legally, the court has the discretion whether to allow a lawyer to withdraw,” said Laurie Levenson, an associate dean at Loyola Law School. “It’s really they [Clarke and Denvir] who are in the bind.”

Levenson speculated that the defense lawyers, citing their professional ethics, would seek to withdraw rather than put on a defense that they believe hurts their client. But, Levenson said, they can only withdraw if Burrell allows them to do so.

If he refuses, the lawyers, who have been on the case at least 18 months, would have the option of going ahead and handling the trial, hoping that an appeals court would be more receptive to their plea to drop the case.

Or they could defy the court’s order and withdraw, and face a possible contempt citation. “But if that happens, the judge still doesn’t have his lawyers,” Levenson said. “They’ll be sitting in jail, not court. It’s quite a Catch-22.”

Clarke and Denvir have indicated in previous court sessions that they believe they have an ethical obligation to sketch out Kaczynski’s mental health problems by at least presenting testimony from his family or describing his hermit lifestyle in the Montana woods.

But prosecutors say that decision is up to the judge. The defense, prosecutors said in their court papers, must heed the judge if he orders them to stick with the case, even if they are right about who controls the mental illness defense.

Otherwise, they argued, the defense “would be acting unethically in withdrawing in violation of a court order.”

Clearly, prosecutors would prefer any attorney on the other side of the courtroom than having Kaczynski acting as his own lawyer and talking directly to jurors.

The prosecution, in a final footnote to its filing, said that if Burrell fails to force the defense to remain on the case, the government would withdraw its objection to the appointment of attorneys to represent Kaczynski.

“The government made that objection before the defendant stated that he wished to represent himself,” prosecutors said.

Meanwhile, Kaczynski was taken off a 24-hour suicide watch at the county jail over the weekend and returned to a regular cell.

Sgt. Jim Cooper, a spokesman for the Sacramento County Sheriff’s Department, said Monday that Kaczynski was returned to a regular cell Saturday at the direction of the jail psychiatric staff, who are employees of the county health department.

“It’s their call,” he said, adding that Johnson “has nothing to do with what his [Kaczynski’s] movements are.”

He said transfers to and from suicide watch “happen on a regular basis” at the discretion of the jail psychiatric staff. He said Kaczynski was being monitored at “a minimum of every 15 minutes.”