Copyright 1998 The New York Times Company
The New York Times
January 4, 1998, Sunday, Late Edition - Final Correction Appended
SECTION: Section 4;Page 5;Column 1;Week in Review Desk
LENGTH: 808 words
HEADLINE: The Nation: Trial and Error; The Client's Always Right. Even if He's Not.
BYLINE: By MICHAEL COOPER
THEODORE J. KACZYNSKI, the hermit standing trial on charges that he is the Unabomber, has told his defense team that he believes satellites control people and place electrodes in their brains. He himself is controlled by an omnipotent organization which he is powerless to resist, he told the lawyers. So it was with some reluctance that they finally agreed last week not to mount an insanity defense.
Why did they do this, when their client faces the death penalty if convicted and the Government has reportedly amassed mounds of evidence linking Mr. Kaczynski to bombings that left 3 people dead and 28 injured? Simply put, because Mr. Kaczynski is said to oppose any assertion that he is mentally ill. And in lawyer-client relations, as in retail, the customer is always right. Even when he is wrong.
"Where the client has a significant interest and what the client wants to do is neither unlawful or unethical, the client has the final say," said Monroe H. Freedman, a professor of legal ethics at Hofstra University. "The dilemma for the defense lawyer is heightened where the defense lawyer believes the client is incompetent to stand trial but the court has found that the client is competent to stand trial." The Art of Persuasion
And since defendants have a right to choose their defense, the onus is on the lawyer to try to talk the client into the best strategy. "It may be the measure of a good lawyer to be persuasive with the client," said George Kuhlman, ethics counsel of the American Bar Association.
But the lawyers lose once in a while. Take the case of Colin Ferguson, convicted of killing 6 people and injuring 19 aboard a Long Island Rail Road train in 1993. He was originally represented by the team of William M. Kunstler and Ronald L. Kuby, who are not exactly slouches when it comes to zealous representation, and they crafted a novel defense for him called "black rage" -- positing that Mr. Ferguson had been driven to act by years of oppression and racism.
Then Mr. Ferguson balked and dismissed his lawyers, and the trial took a bizarre turn. "After Colin Ferguson insisted that we were part of an elaborate conspiracy to deprive him of eye care so that he would go blind and not be able to identify the shooter we tried to declare him incompetent to stand trial," Mr. Kuby said. "He fired us."
Mr. Ferguson decided to represent himself, and, with a straight face, told the jury that he was charged with 93 counts because the attack occurred in 1993. "Unless you're going to raise the competency bar, there's really not very much you can do in a situation like that," Mr. Kuby said.
Plenty of other defendants, too, have directed their attorneys not to act in what anyone else would call their best interests. Guinivere A. Garcia, a prostitute who was convicted of killing her husband in Illinois in 1992, decided she wanted the death penalty. She instructed her lawyer to waive her right to appeal and oppose an 11th-hour clemency petition. Despite her death wish, Gov. Jim Edgar commuted her sentence to life in prison without the possibility of parole.
Then there was Gangaram Mahes, also known as the serial diner. Mr. Mahes, a homeless man, preferred prison to New York City's shelters and streets, and came up with an ingenious and tasty way to get there: he repeatedly ordered expensive meals at nice restaurants and refused to pay the check in order to get arrested. He did it dozens of times.
During a trial for freeloading in 1994, a judge offered Mr. Mahes a 90-day sentence. His Legal Aid lawyer, Christina Swars, tried to argue the judge down. But as that would defeat the whole point, Mr. Mahes told her: "Take the 90 days."
"The client is not always right, but he always prevails," said Alan M. Dershowitz, the Harvard Law School professor and criminal defense lawyer. "In fact, the customer is almost always wrong. One of the hardest decisions in a trial is whether to put the client on the stand. Every con man thinks he's going to be a great witness. They all want to take the stand. But if the client disagrees with you, and wants to take the stand, you must put him on the stand." Sending a Message
Defendants who commit crimes for political reasons are especially loath to assert an insanity defense, some for fear it would dilute their message and others because they want to be martyrs for their causes.
In the case of Mr. Kaczynski, which opens tomorrow in Sacramento, Calif., the defense may yet assert that he is mentally ill. If Mr. Kaczynski is convicted, lawyers may argue that he should not be executed because his mental illness provides a mitigating explanation for his actions. Whether he will go along with such a strategy is unclear. When his mental health was first discussed in open court, at a pretrial hearing, he threw his pen across the table.
CORRECTION-DATE: January 11, 1998, Sunday
CORRECTION: An article last Sunday about the relationship between lawyers and their clients misspelled the name of a Legal Aid lawyer. She is Christina Swarns, not Swars.
GRAPHIC: Photo: Colin Ferguson and Ronald L. Kuby, one of the lawyers he dismissed. (Associated Press)