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TO UNABOMBER: BY BRUCE SHAPIRO | Even before opening statements, the Unabomber trial has become a careering clown-car of a proceeding, with defendant Theodore Kaczynski's paranoid delusions turning the wheel. On Monday, Kaczynski told Judge Garland Burrell that he wanted to fire his lawyers, then changed his mind. On Wednesday he asked to be represented by San Francisco attorney Tony Serra, who supposedly had promised a non-psychiatric defense strategy -- a request turned down by Judge Burrell. On Thursday, Kaczynski decided he wanted to represent himself -- and to top it all off, apparently tried to hang himself with his underwear. This head-spinning story -- a defendant who wants to represent himself rather than submit to psychiatric examination, then agrees to be examined by psychiatrists in order to be found competent to defend himself -- isn't easy to tell. Reporters in Sacramento have spent the week scurrying out of the courtroom to their cellular phones just to keep the story updated on the wires. But in the rush to cover Kaczynski's endless bizarre goal-post shifting, most of the press corps has forgotten a simple fact revealed just before the New Year holiday: This three-ring farce is happening only because the Justice Department turned down Kaczynski's offer of a guilty plea in return for a life sentence without parole. William Glaberson in the New York Times revealed the decision by Janet Reno's in-house "death penalty review committee" on Dec. 29, inspiring a two-day spate of headlines and a near-universal drubbing by editorial writers. But even the swiftly forgotten coverage of the prosecution's decision got the story wrong -- which is too bad, because it offers an opportunity to illuminate issues that go well beyond the Unabomber case. Take the prosecutors' decision-making process, for instance. In the Times, Glaberson portrayed the Reno review committee's decision as an unremarkable bit of bureaucracy. But neither Glaberson nor any other reporter pointed out that under Reno, who claims to personally oppose the death penalty, the committee (which she established after taking office) approved 38 federal death-penalty prosecutions from 1993-96 -- and rejected prosecutors' death-penalty requests only five times in the same period. Nor did reporters point out that the Justice Department's lead psychological consultant on the decision was Dr. Park Dietz, a celebrated but controversial forensic psychiatrist who has built a lucrative career as a prosecution expert in death-penalty cases (among them serial killer Jeffrey Dahmer), and who was also widely reported to have played a key role in persuading Reno to invade the Branch Davidian compound in Waco -- with famously disastrous results. Such details would perhaps have shown the Justice Department's decision in a different light: not as a narrow strategy for the Unabomber case, but as a broad, politically driven commitment to wider use of the death penalty. What's more, not a single story pointed out that even Kaczynski's prosecutors need not have been bound by the committee's decision to authorize a capital prosecution. In fact, on Dec. 31, two days after the Kaczynski plea-bargain story broke, a federal prosecutor in Iowa ignored the same review committee's death-penalty recommendation in a grisly double murder. In a striking contrast to the Unabomber trial, U.S. Attorney Joseph Nickerson accepted two stepbrothers' pleas of guilt in the execution-style deaths of two women in return for a sentence of life without parole. Clearly, there's only one difference between the cases: national publicity. With the Unabomber coming hard on the heels of the McVeigh and Nichols trials, perhaps Reno feared appearing inconsistent -- even at the risk of becoming embroiled in precisely the kind of Colin Ferguson courtroom nightmare that has transpired. In fact, if reporters made even the vaguest attempt to place the trial in broader context, the Unabomber trial might not seem quite so exceptional. The trial and execution of mentally ill murder defendants (like Ricky Ray Rector, a retarded Arkansas man who literally possessed half a brain and was ordered executed by then-Gov. Bill Clinton during the 1992 presidential campaign) is in fact routine. Death-row attorney Stephen Bright of the Southern Center for Human Rights in Atlanta recalls defending numerous clients with the same kind of paranoid delusions as Kaczynski: "In my experience, they are all absolutely committed to not accepting that they are crazy; they believe that their lawyers are part of the conspiracy. But because they seem intelligent, judges buy into this." One of those clients mutilated his own genitals in between bouts of convincing a judge he was sane; another spent years writing Bright long, threatening letters, then sitting cheerfully next to him during hearings. As the Unabomber trial spins ever more out of control, the same prosecutors who rejected Kaczynski's plea bargain may come to deeply regret their decision: The unknowable internal strategizing of the paranoid will trump the rational procedures of the courtroom at every turn. If Kaczynski represents himself as he now desires, he'll have the right to cross-examine FBI agents and his own victims, and harangue the court with statements. It's hard to imagine a system of justice more mad than one in which the mad represent themselves at trial -- but that's the story the press should be telling.
Bruce Shapiro writes the column "Law and Order" for the Nation. |
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