Defending Oneself in Court

In 2003, the California Supreme Court reversed the death sentence of Omar Dent III, convicted in a 1988 murder, because he had not been allowed to represent himself. Nevertheless, Justice Ming Chin expressed doubts about Faretta v. California. He thought that in capital cases the trial court should have discretion to deny such a request when, in the court's opinion, no good ground exists for it. Two other justices reviewing the case concurred.

Theodore Kaczynski

This issue had come up in the case of Theodore Kaczynski, the Unabomber, documented in a book by former FBI profiler John Douglas. Between 1978 and 1995, Kaczynski had constructed and mailed lethal bombs that killed three people and injured 23 others. Finally, after his brother told police that he recognized the style in the Unabomber's manifesto, printed in the New York Times, Kaczynski was arrested in Sacramento, California, in April 1996. By early 1998, Kaczynski was having a difference of opinion with his defense team. They hoped to mount a mental-health defense, because Kaczynski had been diagnosed with schizophrenia, but he was not amenable. After much opposition, he finally agreed, but then changed his mind. Instead, he wanted to represent himself.

That meant a competency hearing, and while he was considered competent to stand trial, his request to go pro se was denied. Because his attorneys had more or less been forced on him, Kaczynski saw no way out of accepting an insanity defense, so he pleaded guilty to 13 of the crimes in exchange for a life sentence with no possibility of parole. Yet he did not give up.

While in prison, writes Marcia Coyle in The Recorder, he contacted law professor Michael Mello, and the two men began corresponding. Kaczynski requested assistance in finding a lawyer, saying that he wanted to retract his plea and plead his case in court. Mello states that Kaczynski did not want to sit in court and hear his lawyers portray him as insane. He also thought that, because the attorneys had refused to present the case in the way that Kaczynski wanted, Kaczynski had a viable claim that his counsel had been ineffective. Yet this argument was unsuccessful in vacating the guilty plea.

In the New York Law Journal, Barbara Zolot examined the constitutional right of Kaczynski to defend himself, while also looking at the judge's reasons for denying the request. The judge claimed that Kaczynski's request to go pro se was untimely, coming 17 days after jury selection. He had viewed it as a "delaying tactic," and had ruled that the request was "not made in good faith," as Kaczynski had been "well aware that his lawyers planned to pursue a purportedly unwanted mental illness defense." The judge added that to allow Kaczynski to represent himself would "permit the criminal justice system to serve as a suicide forum for a criminal defendant."

In 1999, Kaczynski filed a pro se appellate brief with Mello's assistance, and with help from law professor Richard Bonnie and two of Kaczynski's former lawyers, Quin Denvir and Judy Clarke. In a reportedly articulate brief, Kaczynski argued that he had been "railroaded into pleading guilty" and that the plea was "involuntarily made because his defense team threatened to put on a mental-defect defense." The Ninth Circuit U.S. Court of Appeals agreed to listen to his reasoning, but in the end the appeal was denied. Kaczynski had not presented a compelling argument.

Yet some people with a mental illness have been allowed to go ahead with a pro se defense, even in murder cases. In cases like these, issues of justice and fairness become most striking.