Both sides defend Kaczynski in latest wrinkle

Kaczinsky being led into court Tuesday

In this report:

• Both say Kaczynski's request was timely
• Plea bargain talks heat up
• Prosecution defends Kaczynski
• 'Take the death penalty off the table'

January 21, 1998
Web posted at: 6:56 p.m. EST (2356 GMT)

SACRAMENTO, California (CNN) -- In the latest wrinkle in the unusual case of Theodore Kaczynski, both defense and prosecution attorneys disagreed with the judge over whether Kaczynski should be allowed to defend himself.

Behind the scenes, both sides are reported to be working on a plea bargain that would end the need for a trial and spare Kaczynski the death penalty in exchange for life in prison or in a federal psychiatric facility.

U.S. District Judge Garland Burrell said Tuesday that Kaczynski had failed to indicate that he wanted to defend himself soon enough. 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 today, both the defense and the prosecution took issue with the judge.

The defense attorneys Kaczynski is trying to fire 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 argued that "We cannot say the defendant's assertion of his right to represent himself was untimely or for purposes of delay."

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.

Plea bargain talks heat up

The government's support for Kaczynski is unusual in light of its stated intention to prosecute him as fully as possible, including asking for the death penalty. It has also fought the defense's plans to use Kaczynski's mental health as a defense.

But even as the motions were filed Wednesday, negotiations were continuing toward a plea bargain that would probably commit Kaczynski to prison or a federal psychiatric facility.

The government refused an earlier offer from Kaczynski to plead guilty in exchange for life in prison. But it apparently has changed its mind after a federal psychiatrist diagnosed Kaczynski as having paranoid schizophrenia, an illness characterized by delusions of persecution that can lead to violence.

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 resumed when it was learned that Kaczynski, a brilliant former mathematics professor, is, indeed, mentally ill, as his attorneys have long contended.

Kaczynski himself has objected to the label, and to his attorneys desire to use his mental health in his defense. In December he asked permission to fire them and to hire another attorney because they still planned to raise the issue.

Prosecution defends Kaczynski

When that request was denied, he asked the judge to allow him to represent himself, and agreed to undergo tests to prove he is mentally competent. Upon receiving Johnson's assurance that he was, Burrell indicated Tuesday that he was not sympathetic to Kaczynski's wish and that the trial probably would begin Thursday.

But in the motion it filed Wednesday, the prosecution goes to some lengths to show that Kaczynski apparently believed that his defense was being handled the way he wanted when attorneys Quin Denvir and Judy Clarke agreed not to mount a formal insanity defense during the guilt-or-innocence stage of the trial.

"Presumably the defendant learned that the issue was not resolved to his satisfaction on or after January 2, when the government filed a motion to preclude the defense from using non-expert testimony to show a mental defect defense," says the government's brief. "The defendant then immediately raised the issue again with the court when he next appeared in court."

And the defense argued that the request was made after the jury was chosen, but before it was sworn into service.

"If there is a Rubicon beyond which the defendant has lost his unqualified right to...(represent himself), it makes far better sense to locate it at the beginning of defendant's trial," the defense lawyers wrote, quoting from a 1977 case.

'Take the death penalty off the table'

Despite Burrell's seeming intention to resume the trial, the government apparently does not relish the idea of arguing a case against a paranoid schizophrenic, whether Kaczynski defends himself or someone else does.

A possible plea bargain would have the 55-year-old Kaczynski avoid the death penalty by pleading guilty to at least some of the Unabomber attacks.

Sources close to the case say the defense reportedly has put only one condition on such a deal -- that Kaczynski retain the right to appeal the legality of the initial search of his Montana cabin. The sources say Kaczynski has abandoned a demand that he never be placed in a federal psychiatric facility.

Anthony Bisceglie, the attorney for Kaczynski's brother, David, said it was time for a deal.

"If this conservative, government-employed expert concluded he is a paranoid schizophrenic, that should be enough impetus to take the death penalty off the table," he said.

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