Kaczynski trial opens Thursday ... or does it?
Kaczinsky being led into court Tuesday
In this report:
January 21, 1998
Web posted at: 11:45 p.m. EST (0445 GMT)
SACRAMENTO, California (CNN) -- Theodore Kaczynski, his attorneys, the prosecution, the judge and maybe even a jury will be in court Thursday, but it is not clear whether the trial will begin.
It could depend on whether both parties can agree to a plea bargain that would spare Kaczynski the death penalty in exchange for life in prison or a federal psychiatric facility.
If the parties are unable to agree on a plea bargain, U.S. District Court Judge Garland Burrell Jr. must determine whether to grant Kaczynski's request to represent himself during the trial.
If Burrell refuses, Kaczynski must decide whether he will retain his court-appointed attorneys or fire them, as he has already tried to do.
And the government must decide whether it wants to be part of a "media circus" by contesting a case with someone who has been diagnosed as a paranoid schizophrenic, an illness marked by delusions and violence.
A key to Thursday's events may be found in a letter Kaczynski's attorneys delivered to Burrell late Wednesday. Burrell said the letter dealt with self-representation and mental defense issues, and ordered it sealed.
Kaczynski is charged with making and delivering four bombs that killed two men and maimed two scientists. Prosecutors also hope to link him to all 16 attacks attributed to the Unabomber. In all, the 16 attacks between 1978 and 1995 killed three people and injured 29.
Defense, prosecution differ with judge
Earlier in the day, both defense and prosecution attorneys disagreed with the judge over whether Kaczynski should be allowed to defend himself.
Burrell said Tuesday that Kaczynski hadn't indicated soon enough that he wanted to defend himself. Burrell noted that a jury has already been chosen and that after making a final decision Thursday on Kaczynski's request, he intended that the trial would begin.
But in motions filed Wednesday, both the defense and the prosecution disagreed with Burrell.
Quin Denvir and Judy Clarke, Kaczynski's attorneys, filed papers arguing that "the request by Theodore Kaczynski to represent himself was timely because the request was made before the jury was empaneled and sworn."
The prosecution agreed, saying, "We cannot say the defendant's assertion of his right to represent himself was untimely or for purposes of delay."
The government's support for Kaczynski is unusual in light of its earlier stated intention to prosecute him as fully as possible, including asking for the death penalty. It has also fought the defense's plans to make Kaczynski's mental health an issue.
Government says no conditions
But even as the motions were filed Wednesday, negotiations continued toward a plea bargain that would commit Kaczynski to prison or a federal psychiatric facility.
The government refused an earlier plea bargain offer from Kaczynski, but it apparently has changed its mind after a federal psychiatrist diagnosed Kaczynski as having paranoid schizophrenia.
The psychiatrist, Dr. Sally Johnson, concluded that Kaczynski is able to understand what takes place in court and to assist in his defense, and thus, technically, is mentally competent to stand trial.
But sources say that plea bargain discussions re-opened after the government learned of Johnson's diagnosis.
The government reportedly is willing to consider a plea bargain provided there are no conditions. Sources say that the defense has dropped all conditions but one -- that Kaczynski be able to challenge the government's search of his Montana cabin.
Kaczynski asked permission to fire his lawyers and hire another attorney because his attorneys planned to make his mental health an issue. When his request was denied, he asked the judge to allow him to represent himself, and agreed to undergo tests to prove he is mentally competent.
He has said he does not want to represent himself, but would rather do that than allow his attorneys to portray him as, as he said, "a sickie."
'Take the death penalty off the table'
If there is no plea bargain, Burrell must decide whether to allow Kaczynski to defend himself if he fires his attorneys or if, as has been speculated, they withdraw from the case.
However, allowing Kaczynski to represent himself is complicated.
Kaczynski faces the death penalty if found guilty. Experts doubt that an appeals courts would uphold a guilty verdict against someone who is mentally ill -- especially someone who is mentally ill and handled his own defense.
President Clinton told National Public Radio Wednesday he thought a jury should be allowed to decide, but the negotiations suggest that the government's lawyers tend to agree with Anthony Bisceglie, attorney for Kaczynski's brother David.
"If this conservative, government-employed expert concluded he is a paranoid schizophrenic," he said, "that should be enough impetus to take the death penalty off the table."