Kaczynski expected to keep legal team

  Martin Kasindorf; Jonathan T. Lovitt


  USA Today


  Page 03A

  (Copyright 1998)


  SACRAMENTO -- Unabomber defendant Theodore Kaczynski won a battle with

  his lawyers Tuesday when a court-appointed psychiatrist vindicated his view that

  he is mentally fit to stand trial.


  The lawyers, however, may win the underlying war over who controls the

  defense, if U.S. District Judge Garland Burrell Jr. follows the inclinations he

  voiced Tuesday and rules against Kaczynski on several other points.


  Burrell scheduled a hearing for early Thursday, just before the jury is to enter the

  courtroom to be sworn in, to decide whether Kaczynski must submit, at least in

  part, to his attorneys' plans to rely on a mental illness defense.


  Further, Burrell is almost certain to force Kaczynski to keep his court-appointed

  lawyers, Quin Denvir and Judy Clarke, and forgo defending himself against

  charges he is the Unabomber, who carried out an 18-year bombing spree that

  killed three people.


  Burrell said Kaczynski's Jan. 8 demand to represent himself lacked "timeliness"

  and may have been been an attempt to delay the trial.


  Kaczynski's attempt to represent himself is part of his ongoing battle with his

  lawyers over whether to use a mental illness defense to save him from the death

  penalty if he's convicted. Kaczynski has publicly refused to accept such a

  defense. Burrell ruled Jan. 7 that Kaczynski didn't have the right to refuse a

  mental illness strategy. The next day he asked to represent himself.


  Burrell said Tuesday that he is still reviewing transcripts of an agreement reached

  on Dec. 22 between Kaczynski and his lawyers in his chambers. That conference

  was to have determined how mental illness might be used in the trial. The judge

  said he may ask the parties to stick to that agreement. Burrell could:


  Give Denvir and Clarke approval to bring in mental health experts, Kaczynski

  family members and the defendant's mountain cabin at the trial's sentencing

  phase if the jury votes to convict Kaczynski. Burrell said that Kaczynski had

  clearly agreed last month to allow his lawyers carte blanche "should a penalty

  phase be necessary."


  Compel Kaczynski to submit to the lawyers' mental health strategy for the initial

  phase of the trial, in which guilt or innocence is determined. Burrell would hold

  Denvir and Clarke to their Dec. 22 promise to drop mental health experts in the

  guilt phase, which they moved to do a week afterward. But if Burrell finds that

  Kaczynski endorsed the lawyers' plans to introduce non-expert evidence of

  mental illness at the first phase, he would bind the defendant to the deal.


  Hold that it is Denvir and Clarke who should be bound by an implied promise to

  completely abandon the "mental defect" defense in the guilt phase. Such a

  finding would offer Kaczynski a substantial victory.


  Burrell said "it was obvious that Mr. Kaczynski assumed" his lawyers'

  concession to withdraw mental health experts meant no mental status evidence

  would be presented in the guilt phase. "I agreed with Mr. Kaczynski's

  impression," he said.


  Left at sea in all the uncertainty is the government, which must deliver briefs to

  Burrell today on what it wants done about the Dec. 22 conference without

  knowing what the sealed transcript contains.


  Prosecutors were locked out of the conference, on the basis of attorney-client

  privilege. Burrell is siding with the defense in withholding the transcript because

  Kaczynski, accused here of building four of the 16 bombs, may have made

  incriminating statements.


  "Here is the defense's problem," Burrell said. "Statements made by Mr.

  Kaczynski during the proceeding could be used by the government in its attempt

  to kill him. That's a deadly serious matter."


  Mental competency ruling, 1A

  PHOTO, B/W,Vicki Behringer, AP