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  •   Kaczynski Resists the Insanity Defense

    By William Booth
    Washington Post Staff Writer
    Friday, December 26, 1997; Page A01

    The lawyers for Theodore J. Kaczynski have a problem, and the problem is their client.

    His attorneys believe Kaczynski is mad.

    So do at least two psychiatrists they hired, who probed the mind of the former mathematics professor and found a deeply delusional, paranoid schizophrenic who was convinced "that every aspect of his existence is controlled by an omnipotent organization against which he is powerless."

    So does his younger brother David, whose tip led to the arrest of Kaczynski as the alleged Unabomber, and who hoped the federal government would help his troubled brother and not seek to put him to death by lethal injection.

    Yet with a jury of nine women and three men seated Monday and opening arguments in the trial against the alleged anti-technology bomber scheduled to begin Jan. 5 in Sacramento, legal experts who are following the case say Kaczynski is resisting his only real line of defense: the introduction of evidence that might show he is haunted by the phantasmata of a deranged mind and so did not really intend to kill or maim anyone.

    But such psychological evidence, as it bears on guilt or responsibility (as opposed to punishment) is a very tough sell with today's juries, according to trial attorneys and forensic psychologists.

    Despite public perceptions that insanity pleas are common, they are in fact extremely rare and usually result in plea bargains in which the prosecutors and defense both agree that the defendant is mentally ill.

    But high-profile insanity cases -- John W. Hinckley Jr., Jeffrey L. Dahmer, John E. du Pont, Lorena Bobbitt, John C. Salvi III -- tend to be remembered by the public. Hinckley and Bobbitt were found not guilty by reason of insanity. Juries rejected insanity defenses for Salvi and Dahmer. Salvi committed suicide in prison; Dahmer was killed by another prisoner.

    "The public gets educated by the media paying attention, but the public draws profound conclusions that are often false," said Peter Arenella, an expert on the insanity defense and professor of law at the University of California at Los Angeles. "This is not a particularly attractive defense."

    But it may be the only defense, however partial it may be, that Kaczynski's attorneys have. FBI agents uncovered a trove of evidence in his Montana cabin, including virtual signed confessions and a signature completed bomb.

    U.S. District Judge Garland Burrell Jr. said after hearing motions in the case this week in Sacramento that he would rule later on how much psychological evidence will be allowed in the trial. But Kaczynski attorneys Quin Denvir and Judy Clarke have signaled their desire to argue that their client suffers from "a mental defect," specifically paranoid schizophrenia.

    Toward this end, they have had Kaczynski's one-room cabin trucked from Montana to Sacramento as evidence. They plan to guide the jury through the tiny structure where Kaczynski, 55, lived for two decades, without running water or electricity, and offer the cabin as a window into his mental state.

    They may also attempt to use Kaczynski's own writings -- the journals, manifesto and letters -- to show that he harbored delusional, paranoid thoughts for decades.

    These, however, are the very same writings that prosecutors will use to show that Kaczynski was a cold, calculating killer who knew exactly what he was doing.

    Kaczynski's attorneys are not arguing that their client is incompetent to stand trial (he clearly is participating in his case), nor are they pursuing a traditional insanity defense, in which they would try to convince the jury that Kaczynski was so mentally impaired that he did not know right from wrong.

    Instead, they are pursuing a variation of a "diminished capacity" defense: meaning he may be shown to be the Unabomber but not to have the legal "intent" to kill.

    Kaczynski himself steadfastly refuses to concede that he may be mentally ill, which in itself is further evidence that he is paranoid and delusional, according to psychiatrists who have spoken with him.

    And so the stage is set for a trial in which his attorneys may work to introduce elements of insanity -- but very, very carefully.

    "His lawyers are obviously trying to juggle a very delicate position," said Howard Zonana, professor of psychiatry at Yale University and medical director of the American Academy of Psychiatry and Law.

    A glimpse of that dilemma, and its explosive potential, was seen last month during a hearing in which one of Kaczynski's lawyers, Gary Sowards, argued that his client is mentally defective and too paranoid to submit to examination by government psychiatrists.

    During the hour-long discussion, Kaczynski became highly animated, furiously scribbling on a legal pad and constantly whispering to Clarke. At one point, he threw his pen across the desk. It was his single outburst to date. Otherwise, Kaczynski has sat alert at his defense table, even smiling at the occasional moments of levity during the month-long jury selection process.

    Because of Kaczynski's refusal to submit to neuropsychological tests by government examiners, the prosecution has argued that his defense team not be allowed to introduce evidence of mental illness during the guilt phase of the trial. Psychological evidence, however, would be allowed as a mitigating factor during the punishment phase if Kaczynski is found guilty.

    During this week's hearing, Sowards said, Kaczynski offered to undergo limited psychiatric testing for the death penalty phase of the case, should he be found guilty, and withdraw a mental defect defense in the main trial. Prosecutors rejected the offer.

    Kaczynski has not only refused to be interviewed by government psychiatrists but has been reluctant to work with specialists brought in by his own lawyers.

    David Foster, a psychiatrist, stated in court documents that he reviewed the voluminous Kaczynski writings -- personal journals, correspondence, collected news clips, treatises on technological society -- and spoke with his family.

    "Mr. Kaczynski's writings," Foster wrote in an affidavit, "cover a span of nearly four decades from adolescence to his arrest and chronicle his delusional thinking. Social isolation and preoccupation with delusional themes such as mind control, civilized society's efforts to destroy him, and annihilation by technological society are consistently found in his writings. . . . Mr. Kaczynski chronically views accidental or intentional personal contact with other people, newspaper articles, scientific advances, commercial and residential development, air traffic, and radio and television broadcasts as threats to his survival." Foster also visited five times for periods of up to three hours with Kaczynski, a Harvard-trained mathematician, former Berkeley professor and later hermit. Foster stated that an essential component of Kaczynski's paranoid schizophrenia is "his deeply ingrained fear of being considered mentally ill." The defendant considers psychiatrists to be agents of mind control, according to Foster.

    "Upon broaching with any degree of specificity the symptoms and course of his illness," Foster said, "Mr. Kaczynski became visibly upset and shortly thereafter discontinued the meetings."

    Another mental health specialist, psychologist Karen Bronk Froming, also met twice with Kaczynski, who she said "was intent on doing well on the testing and assured me nothing was wrong with him."

    In his writings, Kaczynski himself confesses his disdain of being labeled "a sickie." He told Froming he would submit to her tests only to prove he was "neurologically intact." When she too broached the possibility of mental illness, he refused further contact.

    "Mr. Kaczynski's superior intellect should not be confused with sound mental health," Froming stated in court documents. "While his intelligence enables him to think in more elaborate and convoluted ways, and to appear verbally intact superficially, his inferences and logic are clinically distorted." Froming said she found her subject in deep denial. Government prosecutors, however, have unearthed correspondence showing that between 1988 and 1993, Kaczynski sought psychological help several times.

    Kaczynski wrote a number of neatly typed, cogent letters to mental health specialists in Montana asking for counseling via mail. He confessed in his letters to suffering from insomnia, suggested something was wrong with him mentally, but disdained "talk therapy" and "psychoanalytic theories."

    He asked instead if he could send $5 and a self-addressed stamped envelope and exchange letters with a therapist. It does not appear that any such exchanges took place.

    If Kaczynski's lawyers are barred from admitting expert testimony about his state of mind during the guilt phase of the trial, they still may be able to suggest he was mentally ill through other witnesses and evidence, such as his brother and his cabin.

    If he is found guilty, however, Kaczynski's lawyers most likely will attempt to introduce his mental state as a mitigating factor -- perhaps enough to spare him from the death penalty that prosecutors are seeking.

    "This is one of those cases where you may have a recalcitrant client, and that is a dilemma, both strategically and morally," said Richard J. Bonnie, director of the University of Virginia's Institute of Law, Psychiatry and Public Policy.

    What if the client refuses a possible psychological defense, even to ask for his own life? "The way our law works, the client gets to make the decision," Bonnie said. "Even if making strategic error."

    Prosecutors say the Unabomber is responsible for three deaths and 29 injuries in 16 bombings. Kaczynski is specifically charged with 10 counts, including two deaths and two injuries in Sacramento. He has pleaded not guilty.

    © Copyright 1998 The Washington Post Company

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