Kaczynski expected to keep legal team
Martin Kasindorf; Jonathan T. Lovitt
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
"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