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What Is a Lawyer's Duty? : For three years, attorney Polly Nelson dedicated herself to attempts to save Ted Bundy's life. : DEFENDING THE DEVIL: My Story as Ted Bundy's Last Lawyer, By Polly Nelson (William Morrow: $23; 336 pp.)

August 21, 1994|Sarah Caudwell | Sarah Caudwell formerly practiced at the English Bar, and has written three crime novels with a legal setting. She has also written a play, "The Madman's Advocate," about the M'Naghten case

Killing someone is a serious matter--or so, in a civilized society, it is usually believed. Murder, say defenders of the death penalty, is a uniquely terrible crime, which can aptly be requited only by a uniquely terrible punishment. By the same token, however, the existence of that penalty places a uniquely heavy burden on those involved in the process of its exaction--on judges, on juries and not least on the lawyers for both the prosecution and the defense.

In February, 1986, Polly Nelson, recently qualified as a lawyer and with no previous experience of criminal matters, was asked by her law firm to apply for a stay of execution on behalf of Theodore Bundy, convicted and sentenced to death in Florida six years before for a series of brutal murders. Though an appeal was pending in the U.S. Supreme Court against conviction and sentence, the state of Florida had fixed an execution date; if no stay were granted, he would die in 10 days' time. She agreed to make the application--what else could she do?

"Defending the Devil" is Nelson's account of her experiences over the following three years, during which almost the whole of her time and energy was devoted to attempts to save Bundy's life. After three stays of execution, he was finally executed on Jan. 24, 1989, amid chilling scenes of triumphant public rejoicing.

This is not a book about Ted Bundy, or about his crimes: though the author does not seek to conceal or extenuate their horrific nature, she dwells no longer than necessary on the details. It is a book about being a lawyer; about trying to do one's duty as a lawyer; about going on trying to do it even when the legal system and the client himself seem to be conspiring together to prevent one doing it.

Ted Bundy killed women totally unknown to him, for no other reason than his desire to kill. It would be curious and disquieting if we did not think that prima facie there is at least some doubt about the sanity of such a man. But the insanity defense was never effectively put forward at his trial, because Bundy himself did not wish it to be.

Bundy did not want to be thought mad; he wanted to be thought brilliant. The dearest ambition, it seems, of the failed law student was to star as advocate in his own defense in a case attracting maximum publicity; and perhaps, since he believed in the fantasy of his own brilliance, he did not understand that it would cost him his life. When his counsel at the original trial in 1979 moved for a declaration that he was not competent to assist in his own defense, Bundy successfully applied for the appointment of special counsel to argue on his behalf that he was. The prosecution not surprisingly agreed, and the court decided that he was competent without hearing either evidence or argument to the contrary.

Was it through extreme cynicism or extreme naivete that the judges before whom Bundy appeared colluded in his fantasy? They used such expressions as "the most competent serial killer in the country" and "a diabolical genius," then passed or upheld the death sentence--not the usual result of brilliant advocacy or even of efficient criminality.

A catastrophic overconfidence in one's own abilities is not, of course, a characteristic exclusive to the insane; but Bundy's "brilliance" is equally inconclusive of the issue. True, in the 17th Century the insanity defense was available only to a person having less intelligence than a normal 14-year-old child. Since then, however, the law had been thought to have progressed. By the middle of the 19th Century, when Daniel M'Naghten gave his name to the rules that form the basis for the modern law on criminal insanity, it was known by doctors and accepted by lawyers that many forms of severe mental illness are consistent with a high degree of intellectual ability. We begin, like the author, to suspect that neither the judges nor the state of Florida cared much whether Bundy was sane or insane, or indeed whether there were any other legitimate grounds for an appeal. They simply wanted to kill him.

The story takes on the quality of a macabre farce as again and again Nelson shows how the time limits imposed, by executive action or judicial order, made it almost impossible for the defense case to be properly prepared or presented. The politicians, dealing with a case attracting extreme public odium, wanted to demonstrate their toughness; the judges wanted to stop their court lists being "clogged up" with "technical" applications that would not have been made in a non-capital case.

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