Kaczynski lawyers try risky strategy 'Defense of last resort' turns on mental state of Unabomber suspect

November 09, 1997|By Sandy Banisky | Sandy Banisky,SUN NATIONAL STAFF

SACRAMENTO, Calif. -- To the government, Unabomber suspect Theodore J. Kaczynski is a meticulous terrorist who spent years refining his deadly bombs and keeping "lab notes" ** on his work.

Defense lawyers, however, will counter with a different portrait of the man whose murder trial begins with jury selection here Wednesday: They will describe a paranoid schizophrenic, a man whose illness leaves him incapable of intending, by legal definition, to harm anyone.

It is, trial analysts say, a risky defense strategy -- but perhaps the best available in a case that has the government promising to fill a federal courtroom with evidence linking Kaczynski to the crimes of the Unabomber.

"A defense of last resort," says Joshua Dressler, a criminal law professor at the McGeorge School of Law at Sacramento's University of the Pacific.

"The prosecution has to prove each of the elements of a crime beyond a reasonable doubt, plus the intent to commit those acts," Dressler says. "The defense argument will be he may have built the bombs but he couldn't form the intent to kill" because his mind was clouded by schizophrenia with delusions of persecution.

"Intent implies a competent mind," says Andrew Cohen, a Denver-based legal analyst. "If the mind is not competent, the government cannot prove intent."

The Unabomber led authorities on one of the longest, most expensive manhunts in U.S. history. Between 1978 and 1995, the Unabomber's attacks killed three men and injured 29 people.

The government contends Kaczynski is the anti-technology terrorist who ran from society, then spent years plotting against it. A Harvard alumnus, with a Ph.D. in mathematics from the University of Michigan, Kaczynski is described in court documents as enraged about modern civilization and technology. The 67-page manifesto that the government alleges he wrote is titled "Industrial Society and its Future."

If convicted, Kaczynski could be executed. Prosecutors say the death penalty is appropriate in this case because Kaczynski lacks remorse, is not a good candidate for rehabilitation and is a continuing danger to others.

Some observers speculate that defense lawyers, by using an argument that Kaczynski is mentally ill, are looking beyond the trial. Their goal may be to save their client from execution.

"The fact that he is mentally disordered is a significant factor in convincing a jury to show mercy," Dressler says.

To bolster their mental-illness strategy, the defense wants jurors to tour the crude 10-by-12-foot shack in which Kaczynski lived for years without electricity or plumbing. That cabin, which the government took apart, is in storage in Montana.

Prosecutors intend to show jurors a scale model. But defense lawyers wrote in papers filed last month: "Being able to see the actual cabin is essential to understanding the life and character of Mr. Kaczynski."

The mental-illness defense may have been undermined by Kaczynski's refusal to allow government psychiatrists to examine him.

Last week, the government asked U.S. District Judge Garland E. Burrell Jr. to forbid Kaczynski's lawyers from calling any expert witnesses to discuss his mental condition unless the government's doctors are also allowed to interview him. The judge will rule after hearing from Kaczynski's lawyers.

For 17 years, the Unabomber frustrated federal agents who were trying to find who was behind a string of mail-bomb attacks on people related to universities, computers and airlines.

In letters, the bomber would taunt his investigators and his targets.

In June 1995, he threatened to blow up an airliner bound from Los Angeles -- disrupting air travel across the country over the Fourth of July weekend.

The same week, he sent newspapers a 35,000-word manifesto in which he railed against technology and the industrialization of society. If the New York Times or Washington Post did not print the diatribe, the Unabomber wrote, he would be forced to kill again.

But the team of federal agents tracking hundreds of leads found the suspect only after talking with David Kaczynski, the defendant's younger brother.

David Kaczynski saw similarities between the language in the Unabomber manifesto and the writings of his brilliant, reclusive brother. David Kaczynski and his mother, Wanda, eventually made the anguished decision to take their suspicions to the FBI.

By the time Theodore Kaczynski, who had retreated from a University of California faculty position to a shack in Montana, was arrested in April 1996, the government had linked the Unabomber to 16 attacks.

In Sacramento, Kaczynski is charged with 10 counts related to four bombings, including two murders -- the death of computer store owner Hugh Scrutton in 1985 and the killing of timber industry lobbyist Gilbert Murray in 1995.

Kaczynski also faces a federal murder charge in New Jersey, where he is accused of the fatal attack on advertising executive Thomas Mosser in 1994.

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