By NANCY GIBBS AND DAVID S. JACKSON /SACRAMENTO
 here are many ways, some gruesome, some graceful, to kill
yourself once you set your mind to it. Ted Kaczynski's attempt
to hang himself with his underwear in his jail cell last week
seemed a clumsy gesture compared with the convoluted strategy he
has been employing in court. First he threatened to fire his
lawyers if they kept insisting on portraying him as mentally
ill. Then he argued that he wanted to defend himself. And that,
lawyers observed, would probably ensure that he would wind up
dead after all.
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DEFENSE TEAM: Clarke and Denvir said their client wasn't stalling: he just can't bear being called crazy
Steve Yeater-- AP
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America's legal system is laced with protections for people who
are too sick to know what they are doing or what is best for
them. But as last week's proceedings in the trial of the alleged
Unabomber showed, the law doesn't quite know what to do with
someone who may be both crazy and cunning. The former Berkeley
math professor managed, with his shifting demands and refusal to
cooperate, to twist the case into a knot of conflicting legal
rights that only a mathematician could untangle. Who should
really shape the defense: lawyer or client? Can attorneys be
forced to present a defense they think is virtually suicidal? If
someone is sane enough to stand trial, does that mean he's sane
enough to defend himself if his best defense is that he's crazy?
Just what does the U.S. Constitution owe a mad genius? The
confusion was so great that at one point Judge Garland Burrell
Jr. said in exasperation, "I'm going to tell you what I think,
and I don't know if I should think what I think."
It turns out that the only thing harder than finding the alleged
Unabomber after 18 years, 200 suspects, thousands of interviews
and one of the longest, most expensive manhunts in FBI history,
is making him sit down and shut up. Theodore Kaczynski, lonely
hermit, brilliant sociopath, murderous wood carver, has been
fighting with his lawyers for months. They wanted to mount a
mental-illness defense; he wanted no part of it. Kaczynski made
it clear that he would do anything, even fire his attorneys, to
keep them from portraying him as a "sickie."
So by last week his team had agreed to skip the mental-illness
defense during the trial so long as the lawyers could pull it
out in the penalty phase to help avoid a death sentence. They
planned to show jurors photos of the ripe, shaggy hermit at the
time of his arrest and offer a tour of the creepy cabin, which
has been trucked in as evidence, all to give jurors an idea of
the life-style of the man on trial. Burrell overruled
Kaczynski's objections to this plan on the grounds that the
lawyers, not the client, should be in control of defense
strategy. "The standard for the conduct of criminal cases says
that the client has the choice of whether to plead guilty or
not, or whether to take the stand or not," observes Stanford
University law professor Barbara Babcock, "but I don't think
that the tactical decision of what defenses to raise is up to
him."
Opening arguments were set to begin at 8 a.m. Monday; the seats
behind the prosecution table filled up with victims and their
families, including Yale computer-science professor David
Gelernter, his mangled right hand encased in a black glove. The
defense side was a lonelier place. In the front row sat David
Kaczynski, 47, a quiet man with a pained face, whose call to the
FBI had marked the beginning of the end. Next to him was his
diminutive mother Wanda, 80, who had not seen her son Ted in 15
years, and family lawyer Anthony Bisceglie. A few minutes before
8, the door opened and the alleged bomber finally strode in,
wearing a white cable-knit sweater and a striped dress shirt.
David reached for his mother's hand as his older brother,
looking neither left nor right, walked past them straight to his
chair and sat down with his back to them. If he knew they were
there, he gave no sign. David sighed deeply, leaned over and
whispered to his mother. He put his arm around her small
shoulders, and the two of them seemed to shrink with grief.
As Judge Burrell approached his seat, Ted Kaczynski took a deep
breath, gulped down a drink of water, and began his first public
statement since his arrest nearly two years ago.
"Your Honor," he said in a high, reedy voice, "before these
proceedings begin, I would like to revisit the issue of my
relations with my attorneys." At first, most people in the
courtroom didn't even know who was speaking. A few feet away,
the prosecutors looked up in confusion, then concern, as the man
suspected of killing three people, maiming 23 others, taunting
the FBI and terrorizing the airlines, apologized to the judge
for not rising "because I am under orders from the marshals not
to stand up." When Kaczynski finished speaking, Burrell looked
stricken. He thought for a long moment, then ordered Kaczynski
and his lawyers into his chambers.
For the next 4 1/2 hours they tried to resolve the dispute while
the prosecutors, along with everyone else in the courtroom,
could only sit and wait. Some victims introduced themselves to
one another. FBI chaplain Mark O'Sullivan, who had been
counseling the mother, widow and children of Unabomber victim
Gilbert Murray, said the family was "extremely disappointed" in
the delay. "This has been an arduous process," he said. "They
believed today this would finally be getting started."
Inside the judge's chambers, Kaczynski held firm that he didn't
want to be called mentally ill at any point in the trial, and if
that meant he needed new lawyers, so be it. The clash was
ideological, not personal. The rapport between Kaczynski and
defense attorneys Quin Denvir and Judy Clarke was clearly
strong. Even at the height of their dispute, Kaczynski would
confer with the two, often with a smile or a joking remark. He
never recoiled when Clarke, a tall, thin woman who towers over
him, patted his back or rested her arm on his chair back.
The court reconvened on Wednesday afternoon amid hopes that the
opening statements could proceed. Judge Burrell announced that
the issue of representation had been resolved; Kaczynski would
cooperate with his lawyers. But Kaczynski was not done
surprising the court. It seems that San Francisco defense
attorney J. Tony Serra had faxed the court an offer to represent
Kaczynski for free if he could fire his attorneys. In a phone
call just before court reconvened, Serra told Kaczynski he would
not use a mental-illness defense. "I would like to be
represented by him," Kaczynski announced to the stunned
audience. Judge Burrell denied the motion on the grounds that it
was too late in the trial to bring in a new lawyer and give him
time to prepare. Kaczynski accepted the decision with
equanimity. He just leaned over his yellow legal pad and began
scribbling more notes.
The case finally seemed ready to go on Thursday morning. Few
people in the courtroom knew that Kaczynski had arrived in his
prison jumpsuit but without underwear; U.S. marshals saw a
slight red bruise on his neck and later concluded that he tried
to hang himself the night before. At 7:50 a.m., prosecutor
Robert Cleary nervously paced the courtroom's well, then went up
to the jury box to ensure he knew what jurors would be able to
see when he started his opening statement. But once everyone was
seated, Clarke stood up. "Mr. Kaczynski has a request that we
alert the court to on his behalf," she said quietly. "He
believes that he has no choice but to go forward as his own
lawyer. It is a very heartfelt reaction, I believe, to the
presentation of a mental-illness defense, a situation in which
he simply cannot endure."
As she spoke, Kaczynski sat quietly next to her and listened
with no expression. Behind him, his brother and mother began to
cry. Wanda Kaczynski turned to her youngest son and, with tears
in her eyes, said simply, "Why?"
Well, for one thing, it showed how erratic Kaczynski can be. And
once again the more temporal matters of his guilt or innocence,
which never seemed much in doubt, have been pushed aside while
the lawyers and judges have a long nationwide conversation about
just what constitutes crazy in an already crazy world. Never
mind all those journals tucked on the shelves next to the
Shakespeare and Thackeray; all those carefully constructed bombs
and the letters; even when the government has the evidence on
its side, other factors seem to conspire to change the subject.
Insanity is its own manifesto. To a criminal trial lawyer, the
term has several meanings and definitions. "Competent" to stand
trial is actually a low-threshold legal matter. One merely has
to be able to understand the nature and consequences of the
charges and be able to assist in one's defense. It is obvious
that Kaczynski should qualify on both counts. But his lawyers
argue that the nature of his illness prevents him from
accepting--and thus cooperating with--a mental-illness defense,
and that, they argue, should make him incompetent to stand
trial. As for defending himself, only a foolish or delusional
person would contemplate it. Kaczynski has lots of clever ideas,
but they are also bizarre.
Kaczynski has refused all along to be examined by prosecution
psychiatrists because, his lawyers claimed, he has an innate,
deep-seated fear of them. But in one of the biggest surprises of
the week, Kaczynski agreed to be examined in order to prove that
he could represent himself, thus putting himself in the position
of a defendant who is probably mentally ill trying to appear
normal so that he can escape a mental-illness defense.
Some skeptics see in Kaczynski's maneuvers a simple desire to
disrupt the system. "He may be seriously mentally ill, but I
think he knows exactly what he's doing," says former federal
prosecutor Donald Heller. "This is the ultimate opportunity to
take action against society. One man against the Federal
Government, the federal judiciary, the FBI, the Department of
Justice, creating chaos. What a perfect opportunity for a person
with the mind bent of the Unabomber's manifesto."
But others dismiss such portraits of a prodigious manipulator.
"Part of Ted's affliction is the inability to stop analyzing,"
says Kaczynski family attorney Bisceglie. "If you go back to the
letters and the manifesto, you will see this analysis and
re-analysis and analyses of analyses and endless drawing of
distinctions and of footnotes. It's almost as if he has no off
switch. He isn't in control."
The entire argument over defense strategy begs the question of
what might actually work in this case. One long shot is the
"necessity" defense. "It means you are at times in the law
entitled to commit a lesser evil to avoid a greater evil," says
Stanford law professor George Fisher: in other words, the
alleged Unabomber felt he was forced to bomb America in order to
save it. But the chances of being allowed to make such a claim
are slim. Says Fisher: "Obviously the necessity defense is never
going to be allowed to be used as an excuse for terrorism."
Even if Kaczynski is convicted, he may avoid execution. Stanford
law professor Babcock speculates that he would appeal to the
Supreme Court, probably without success, and then, as the
execution date approached, would have writs brought arguing that
he's too insane to be executed. "We want people to know what is
happening to them and why it's happening, and not have any
illusions about it," says Babcock. "So actual crazy people can't
be executed." Kaczynski, Babcock believes, will have a new hobby
once this trial is over. "Being in jail and running his case is
what he's going to do for the next 30 years."
With the hearing over, Kaczynski huddled with his attorneys
briefly, then stood up, clutching his envelope full of scribbled
notes and headed for the door. The marshals have him under
24-hour suicide watch at the jail as the proceedings pause while
the experts have a chance to size up his mental state. And
through it all, he will probably go on insisting he is not
insane even as he manages with each successive gesture to
suggest otherwise. --With reporting by Romesh Ratnesar/New York
--With reporting by Romesh Ratnesar /New York
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