'Mental defect' defense ruled out Prosecutors win victory in Unabomber case

December 30, 1997|By NEW YORK TIMES NEWS SERVICE

SACRAMENTO, Calif. -- Lawyers for Theodore J. Kaczynski abandoned their effort yesterday to argue that he suffers from a "mental defect" during the guilt phase of his trial on Unabomber charges.

The action was a victory for prosecutors, who have been working to bar the defense argument that Kaczynski is a delusional paranoid schizophrenic. The prosecutors asserted that the argument should be barred because Kaczynski refused to be examined by government psychiatrists.

But if Kaczynski is convicted, the defense could still assert during a penalty phase of the trial that he should not be executed because his mental illness provides a mitigating explanation for his actions.

During a penalty phase of the case, defense lawyers could theoretically present even a fuller picture of mental illness. But, because Kaczynski would be likely to continue to resist examination by government psychiatrists, prosecutors would be likely to try to bar such an effort as well.

Without a mental defect argument, the defense team is left to face an expected barrage of prosecution evidence linking Kaczynski to a series of package bombings that killed three people and injured 28 others in an anti-technology terror campaign that began almost two decades ago, in 1978.

Pretrial sparring did not show any alternate defense theory of what happened, and far from asserting a wrong-man claim, Kaczynski's lawyers have often seemed on the verge of acknowledging that he was the Unabomber.

For example, during questioning of potential jurors, defense lawyers often asked whether they would automatically impose the death penalty if the defendant had cold-bloodedly mailed package bombs with the intent of killing his victims.

Lawyers watching the case said the abandonment of the mental-defect argument seemed likely to leave the defense lawyers simply asserting a "reasonable doubt" defense, in which the defense is left merely to point out that the government must prove every assertion beyond a reasonable doubt.

Instead of acknowledging guilt and pleading for mercy, lawyers said, the reasonable-doubt approach was necessary in a case where a defendant was facing the ultimate punishment of death. Lawyers watching the case said defense lawyers in such a case could not afford to give up potential grounds for appeal during a guilt phase even if overwhelming evidence raised the possibility of angering jurors.

But several experienced trial lawyers pointed out that Kaczynski's defense team would be at a disadvantage using the reasonable-doubt approach because jurors expect to hear some explanation from the defense. "People expect you to do something," said Otto G. Obermaier, the former U.S. attorney in New York, who has no role in the Kaczynski trial. "They want to know, 'Why should we go your way?' "

The defense move did not come entirely without warning. Last week during legal arguments, defense lawyers said they had offered during negotiations with prosecutors to give up their plan to present psychiatric evidence in the guilt phase of the case in exchange for an agreement to be permitted some psychiatric testimony during a penalty phase without requiring Kaczynski to be examined by government doctors.

The government rejected that offer. At that hearing, the judge in the case, Garland E. Burrell Jr., ruled that the defense would have to provide notice to the prosecution within 10 days of whether it would seek to present such evidence during a penalty phase. That notice is due later this week.

If the defense says it plans psychiatric testimony during a potential penalty phase, prosecutors have indicated they would

demand an examination by their own doctors just as they did for the first phase of the trial. If Kaczynski refuses, they are expected to ask Burrell to bar the psychiatric testimony.

Burrell has not yet ruled on whether to bar such testimony during the guilt phase of the trial. But he has indicated he was likely to permit some evidence but to curtail the defense so as not to

disadvantage the prosecution. Legal experts say a judge would be required to give the defense greater latitude during a penalty phase because the jury would be faced with a life-or-death question.

Kaczynski offered in recent weeks to plead guilty to Unabomber charges in exchange for avoiding the death penalty, a participant in high-level Justice Department proceedings said Sunday.

The plea offer was rejected by Attorney General Janet Reno's death-penalty review committee after extensive presentations by Kaczynski's defense team, said the participant, who described the behind-the-scenes maneuvering on condition of anonymity.

Court filings also confirmed during the weekend that Kaczynski had been engaged in a bitter struggle with his lawyers over trial strategy in a series of unusual closed-door meetings with the judge beginning Dec. 19. But there were signs that the rift had been repaired and that Kaczynski was again working with his lawyers.

Kaczynski was willing to accept a sentence of life in prison without the possibility of release for the string of bombings that left three people dead and injured 28 others.

Pub Date: 12/30/97

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