Another Unabom deal is rejected After a bizarre week, Justice considered Kaczynski's new offer

'A lose, lose, lose situation'

Case's unusual twists clearly complicated plea negotiations


SACRAMENTO, Calif. -- After a week when Theodore J. Kaczynski reduced his trial to chaos, Justice Department officials in Washington considered a new offer by him to try to avoid the death penalty by pleading guilty to the Unabomber crimes.

But by the end of the weekend, officials opposed to a plea deal had rejected it. The talks, however, showed that both sides in the trial were struggling to find a way to end the case after a week in which Kaczynski apparently tried to hang himself with his underwear and then demanded to represent himself.

The strange events increased pressure on the Justice Department to justify a rigorous and expensive trial in an effort to obtain the death penalty for a defendant whose mental competency is in question. And prosecutors were left to contemplate facing an unpredictable Kaczynski acting as his own lawyer.

"There is no glory in this for anybody," said one person who was involved in the talks. "This is a lose, lose, lose situation for everybody." Kaczynski is to undergo court-ordered psychiatric tests this week.

One person at the Justice Department said a sticking point was that Kaczynski was insisting on retaining the right to appeal certain pretrial rulings made by U.S. District Judge Garland E. Burrell Jr. In what was described as a conditional offer, Kaczynski would accept a sentence that is described by lawyers as "life in prison without the possibility of release" but would retain the right to appeal certain limited issues.

If Kaczynski eventually won an appeal on rulings such as what evidence could be admitted at the trial, he might be retried or might be freed from federal custody.

But any chance at freedom might be theoretical, some legal observers said yesterday. Because Kaczynski is charged with killing three people, federal courts would be likely to review any bid for freedom meticulously and he might face state murder charges if a federal plea was overturned.

The Justice Department source, who spoke on the condition of anonymity, also said Kaczynski had made certain demands about the terms of his confinement, but would not specify what those demands were. Prosecutors are typically wary of conditional plea offers, and the Justice Department would undoubtedly be excoriated if there was even a remote chance that Kaczynski would ever be released.

A high-level death-penalty review panel refused last month to accept an offer by Kaczynski to plead guilty to all the federal charges he faces involving the deaths of the three people and the injury of 28 others in a bombing campaign that lasted nearly two decades.

Since those talks failed, Justice officials have said a plea for mercy on mental-illness grounds by Kaczynski's lawyers was unpersuasive because most people who commit multiple murders could make the argument that they suffer from mental problems.

Asked about reports of new plea negotiations, first reported by Newsweek in the issue that is available today, Leesa Brown, a spokeswoman for the Justice Department, said: "It is the duty of prosecutors to listen to any credible offer by defense counsel at any time. That being said, we are preparing for the competency proceedings this week and the resumption of the trial Jan. 22."

It was clear yesterday that the talks over the weekend were extremely difficult because of the unusual twists in the case. With Kaczynski demanding to represent himself and with his competency in question, it was not clear whether it was appropriate for prosecutors to negotiate with Kaczynski or with his court-appointed lawyers, or neither.

If Kaczynski were ruled incompetent, any plea negotiations would be invalid. And with Kaczynski saying he wants to dismiss his lawyers, it is not clear that they would have the power to negotiate on his behalf.

By the end of this week, the competency evaluation of Kaczynski is to be completed. A report from the court-appointed psychiatrist is to state whether Kaczynski is legally competent to stand trial, which involves a determination of whether he has an understanding of the charges against him and an ability to assist in his defense.

Participants in the renewed talks appeared to be assuming, as are most lawyers, that Kaczynski will be found competent.

But if he is, Burrell would face the more difficult question of whether to accept Kaczynski's demand that he be permitted to represent himself. The prosecution's ability to continue negotiations over any possible plea bargain could be affected by the way that issue is resolved.

Burrell has said he believed Kaczynski only made the demand that he be permitted to represent himself because he disapproved of his lawyers' planned mental-illness defense. The chief prosecutor, Robert J. Cleary, suggested last week that the judge could order the defense lawyers to follow Kaczynski's orders and forgo any psychological defense.

Burrell appeared to be considering that option. But in court, the defense lawyers said any order to force them to abandon a psychiatric defense of a man they believe is a delusional paranoid schizophrenic would be a violation of their professional oaths.

Lawyers watching the case said that could set the stage for a sharp confrontation between the defense lawyers and the judge that could complicate plea negotiations extraordinarily. If Burrell ordered the defense lawyers to follow their client's orders and if they refused, he could cite them for contempt.

The only way they would be able to obtain a review of their position would be to seek a further delay of the trial while they appealed. The trial, which was set to begin Jan. 5, would then be further delayed and could eventually require the dismissal of the jurors who have yet to be sworn in and are not sequestered.

Pub Date: 1/12/98

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