Some criticize judge after trial delayed Possibility of Kaczynski defending

  himself is raised

  Martin Kasindorf

  01/06/1998

  USA Today

  FINAL

  Page 02A

  (Copyright 1998)

  SACRAMENTO -- Defendant Theodore Kaczynski snarled the Unabomber trial

  Monday with a demonstration of stubborn will that frustrated the government and

  angered victims.

  Schedules went awry. Uncertainties multiplied. And some of the ensuing

  criticism fell on U.S. District Judge Garland Burrell. To some observers, he

  appeared to be risking a loss of control just as the trial was to begin.

  The problem was Kaczynski's disagreement with his lawyers' strategy of trying to

  save his life in the face of immense evidence by portraying him as a paranoid

  schizophrenic. He objected, as he said in a journal he kept in Montana, to being

  portrayed as a "sickie." It was a problem that had simmered through six months

  of pretrial motions and hearings.

  "These are issues that should be resolved before you have a jury ready to start the

  trial," said Joshua Dressler, a professor at Sacramento's McGeorge School of

  Law.

  Last week, the dispute appeared to have died out when defense lawyers decided

  to save expert testimony on Kaczynski's mental health for a life-or-death

  sentencing phase if he is convicted.

  Rather than completely acquiesce to their client's wishes, however, the lawyers

  told the government that in their opening statement Monday they would show

  two photos: Kaczynski as a respected math professor in the late 1960s, and

  Kaczynski as the disheveled, disoriented Montana hermit arrested in April 1996.

  To chief prosecutor Robert Cleary, this plan seemed to be a back-door attempt to

  condition the jury through non-expert evidence for the push for leniency at the

  penalty phase. The government wasn't buying it.

  Neither, it turned out, was Kaczynski. The issue blew up Monday, forcing a

  three-day delay in swearing in the jury and starting the trial.

  For 41/2 hours, Burrell allowed Kaczynski to argue in his chambers that his legal

  representation was unsatisfactory. In the end, the issue appeared to be whether

  Burrell would approve new representation if the court-appointed defense

  attorneys, Quin Denvir and Judy Clarke, won't do what their client wants.

  The judge in court alluded to a third option: letting Kaczynski represent himself.

  The judge said that if he can't solve the problem by Thursday, he will order

  "other types of procedures." As Sacramento defense lawyer Donald Heller

  interpreted the statement, Burrell was suggesting that he might hold a hearing on

  Kaczynski's competence to defend himself.

  Waiting in the courtroom during the long conference were Kaczynski's mother

  and brother, Wanda and David Kaczynski, whom he had not seen for 12 years.

  They were expected to testify for the defense.

  Across the aisle from the Kaczynskis sat two of the prosecution's first planned

  witnesses, bombing victims David Gelernter and Charles Epstein, each with a

  mangled hand, and more than a dozen relatives and friends of Hugh Scrutton and

  Gilbert Murray, two of the three men Kaczynski is accused of killing.

  The family of Gilbert Murray, a timber industry lobbyist who died in a 1995

  blast at his Sacramento office, was "extremely disappointed," said FBI chaplain

  Mark Sullivan, serving as the family's spokesman. To widow Connie Murray and

  her son Gilbert Jr., 18, it seemed that the defendant could "stand up and kind of

  grind things to a halt," Sullivan said. Connie Murray will be back Thursday,

  Sullivan said.

  Cleary agreed to the new schedule but said the government wants the mental

  health issue "firmly and finally resolved before this jury gets sworn." Burrell said

  he was concerned about Cleary's use of the hard-nosed words "firmly and

  finally."

  "The government is obviously irritated, not only with the defendant but with the

  judge," says Dressler. "It wants final decisions."

  Dressler said Burrell risks triggering an embarrassing mistrial by allowing

  extended discussion of who will represent Kaczynski. Delays of more than a few

  days could lead to jurors' demands that they be released.

  "If you talk for a couple of weeks, you're beginning to run a very high risk that

  you cannot go with this jury," said Dressler. One alternate juror already has been

  excused for hardship. It took months to design questionnaires and winnow a pool

  of 600 down to 12 jurors and six alternates.

  Kaczynski is "messing it up for himself," says Dressler. "He's messed his whole

  life up all along, and this is consistent."

  Contibuting: Jonathon T. Lovitt

  Courtroom turmoil, 1A

  PHOTO FIRST,b/w,Vicki Behringer,AP; PHOTO,b/w,Reuters