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Now what? At Unabomber trial, Kaczynski team left with few options

December 30, 1997

SACRAMENTO, Calif. (AP) _ The abrupt withdrawal of Theodore Kaczynski’s psychiatric defense suggests that his own lawyers are bargaining with the Unabomber defendant in a desperate bid to save him from the death penalty.

With Kaczynski stubbornly refusing to be examined by psychiatrists and threatening to fire the lawyers who planned to depict him as a madman, the defense is left with few options less than a week before opening statements to the jury.

First, they sought to negotiate with the government. When that failed they had to bargain with their client.

But Monday, the defense served notice that it will not call mental health experts as witnesses during the guilt-or-innocence phase of the trial. This after making clear in hundreds of pages of pretrial documents that it believes Kaczynski is schizophrenic and could not form the intent to kill anyone.

``They have difficult facts and a difficult client,″ said Laurie Levenson, associate dean of Loyola University Law School. ``This may be the only deal they could make with him.″

The deal, if there is one, would eschew expert testimony about Kaczynski’s mental state during the guilt-or-innocence phase, then present psychiatric evidence during the life-or-death penalty phase.

The government contends Kaczynski, a Harvard-educated mathematician-turned-hermit, is responsible for all 16 Unabomber attacks from 1978 to 1995 that killed three people and injured 29. He is charged here with four attacks that killed two men and maimed two others.

He could be sentenced to die if convicted. He is charged separately in New Jersey with the third fatality blamed on the anti-technology Unabomber.

``The government is likely to say that he’s not crazy, he’s evil. And even if he had mental problems, he had enough brain power to know what was right and wrong,″ Levenson said.

``Maybe the reason he’s not cooperating is because the government could get a psychiatrist to say definitively that he’s not crazy.″

Public defenders Quin Denvir and Judy Clarke have said they believe Kaczynski suffers from paranoid schizophrenia, an illness marked by delusions and a persecution complex. They first gave notice of the plan for a mental defect defense last June.

Defense experts who examined Kaczynski before he began resisting all such inquiries said his insistence that he is not a mental case supports the theory that he is indeed schizophrenic.

One of his own lawyers has called Kaczynski ``a high functioning schizophrenic″ whose elevated intelligence masks a deeply troubled mind.

Newly released transcripts of private meetings between the defendant, his lawyers and U.S. District Judge Garland Burrell Jr. disclosed that Kaczynski had been writing to the judge complaining about disputes with his attorneys.

``There are times when lawyers and clients have communication problems,″ the judge said during one of the private meetings.

Denvir told the judge: ``This is obviously a major problem,″ and said the judge needed to explore with Kaczynski ``where to go from here.″

``We are all very unhappy and sad to be in this position, but we are in the position,″ the attorney said. ``We have to do, I guess, what we can.″

Burrell asked Kaczynski at one point if he wanted to add anything.

``I said everything in my letters and in what I’ve just said now,″ he responded. ``That’s all I have to say for the moment.″

Most of Kaczynski’s remarks were sealed by the judge who cited attorney-client confidentiality. Even prosecutors have not seen that part of the transcript, and on Monday they asked for access.

They are concerned whether the judge made an adequate inquiry into Kaczynski’s desire to fire his lawyers and to assure that he was now willing to proceed with them.

``The government has an interest in ensuring that the record is not tainted by error that could undermine the validity of a conviction,″ prosecutors said.

Opening statements are scheduled for next Monday, and unlike most high profile trials, this one begins with all parties tacitly assuming that Kaczynski will be convicted. The assumption is so strong that the defense made an 11th hour bid for a plea bargain.

They took their offer to U.S. Attorney General Janet Reno’s death penalty review committee, suggesting that Kaczynski plead guilty to the charges against him in return for a life term in prison with no chance of parole.

Under their scenario, the death penalty would not be sought. The government refused.

``The government holds all the cards,″ Levenson said. ``There was nothing new for the defense to offer.″

David Kaczynski, who helped prosecutors apprehend his brother but has pleaded for his life, is disappointed with the prosecution’s decision to reject a plea bargain and pursue the death penalty, his lawyer said.

``It would have assured the government a conviction finality,″ attorney Anthony Bisceglie said. ``It would have spared David and his mother the necessity to continue to fight to save Ted’s life. And it would eliminate the possibility that David would have to live out the rest of his life knowing his effort to save the lives of potential future victims could actually result in his own brother’s execution.″

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