In Fits And Starts

By Nancy Gibbs And David S. Jackson/Sacramento

There 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.

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

For more information on the Unabom trial, see time.com

With reporting by Romesh Ratnesar/New York