Newsreal: Is Kaczynski crazy enough to be saved?

An expert in mental disability criminal defenses analyzes the trial of alleged Unabomber Theodore Kaczynski and assesses his chances of avoiding the death penalty.

Published January 5, 1998 8:00PM (EST)

Federal prosecutors say they will make alleged Unabomber Theodore Kaczynski's own admissions the cornerstone of their opening statement Monday in U.S. District Court in Sacramento. They say Kaczynski, 55, has acknowledged his involvement in at least three of the four attacks of which he is accused, which killed two people and injured two more during the almost two-decade-long Unabomb campaign of terror. The prosecution will also introduce evidence relating to 12 other bombings, not mentioned in the indictment, for which Kaczynski is also alleged to be responsible.

With an apparently overwhelming amount of evidence against the former math teacher and his own refusal to be a party to an insanity defense, it is not clear what his defense will do. His attorneys reportedly sought a plea bargain that would have put Kaczynski in prison for life, but the Justice Department turned it down.

Can Kaczynski avoid the death chamber? On the eve of opening arguments, Salon spoke with Peter Arenella, professor of law at UCLA, a former criminal trial attorney and an expert on mental disability defenses.

Have any of the pre-trial events, ranging from jury selection to the failed plea bargain and back-and-forth on the alleged Unabomber's mental health made any difference to the trial itself?

No, this is a case of the more things change, the more they remain the same. There has never been any doubt that the government would prove its case; it was about whether Kaczynski would be put to death. The defense wanted to use a diminished-capacity defense, not because they thought they could avoid a conviction, but to give the jury a preview of what they would argue during the sentencing phase -- that they can't execute a very ill individual, albeit a killer.

By diminished capacity, you mean insanity? Kaczynski insists he is not insane.

No. One of the things that's most confused both the public and the media is exactly what this diminished capacity defense means in criminal law. It's not an insanity defense, although that's how the media keeps interpreting it. An insanity defense is one where a defendant claims he can't be held morally or criminally responsible because he was so mentally ill at the time of the crime that he wasn't aware of what he was doing. That is not what Kaczynski's lawyers wanted to argue. They wanted to argue instead that because of his mental illness, he didn't entertain the criminal intent, the intent to kill. The question is not, "was he mentally ill?" The question is, did he have the requisite criminal intent?

Based on the evidence, did he?

He did! His own diaries show that he had the intent to kill. And his attorneys knew the argument would not be successful in terms of avoiding a guilty verdict. But they wanted to present evidence of Kaczynski's mental illness during the guilt phase anyway, to set the stage for the jury evaluation of the death penalty issue.

Diminished capacity or insanity -- it's now moot because the psychiatric defense has just been dropped. How damaging will this be for Kaczynski, assuming there is a penalty phase?

Not all that damaging, because evidence of Kaczynski's mental illness can still be presented at the death penalty phase. The government may argue that should Kaczynski continue to refuse access by government psychiatrists, his lawyers should be barred at the penalty phase from using any psychiatric testimony. But I think it's highly unlikely when life and death is in the balance that the trial judge will accept that argument. So, we'll be hearing a lot of expert testimony about mental health.

Should Kaczynski's competence to stand trial be an issue?

There is a legal issue as to whether any mentally ill client is legally competent to stand trial. But the test is quite minimal. As long as the person is rational, capable of communicating rationally with his lawyers, regardless of the fact that he's mentally ill, he'll be found able to stand trial. Under the test, Mr. Kaczynski is clearly competent to stand trial. And it's a particular problem for his lawyers, because here you have Kaczynski basically wanting to feign sanity -- whereas he's quite crazy -- because he doesn't want his supposed political motivation for his crimes to be undermined by some mental disability defense. The main reason why the defense is saying they're not going to be presenting any psychiatric experts in the first phase of the trial is probably because Kaczynski didn't want them to!

So what will his defense look like?

I expect a lot of stipulations in order to try and undercut the emotional impact of the government's evidence. I don't think the defense will contest the fact that Kaczynski is the Unabomber. They will simply argue reasonable doubt about his criminal intent.

What are their chances of being successful?

It's going to be very difficult for them when Kaczynski's own diaries show that he understood what he was doing, and that he intended to kill people with his bombs.

How can the defense counteract this?

The defense will probably introduce evidence, during the guilt phase, of his strange lifestyle, suggesting that because he was mentally ill -- one rather crazy fellow -- he could not entertain the criminal intent. I'm sure they would have preferred to back their case with psychiatric experts.

Were you surprised by the government's apparent refusal to accept a plea bargain that would have spared Kaczynski the death penalty?

No, but from my perspective it's somewhat disappointing. One of the many things I think that the public is unaware of is that in this country the death penalty can be imposed on mentally ill killers. The U.S. Supreme Court has ruled that even though a jury in a death penalty case must consider evidence in mitigation, such as mental illness, they don't have to give a life sentence instead of a death penalty if they find the defendant is mentally ill. The jury constitutionally can say, "We don't care because we find other aggravating factors -- the harm of the crime, the number of victims -- outweighs this mitigating evidence." The Justice Department's rejection of the plea bargain is basically a decision to let representatives of the community decide whether or not death is appropriate in this case.

What do we know about the jury at this point?

I gather that Judy Clarke and Quin Denvir have done a terrific job for the defense team of getting on the jury some individuals who have some very significant reservations about the death penalty. If true, that can only help Kaczynski at the death penalty phase because you need a unanimous jury deciding on the question of life vs. death.

What other factors might come up in the penalty phase?

The mitigating evidence will all be about Kaczynski himself -- that if you look at the way he lived and what he said and wrote, although he is extremely intelligent, he is extremely ill. He believes there are organized forces in society out to get him, and this is a classic description of a paranoid schizophrenic. In any death penalty case, the ultimate challenge for the defense is to humanize their client. If they can get the jury to have compassion not just for victims of the defendant but for the defendant himself and his own pathology -- in short, to see the defendant as someone who was victimized by his own illness -- then there's a good chance of avoiding the death penalty. But there's no guarantee.

I know you hate being asked this, but do you think Kaczynski will be sentenced to death?

There are two factors that may work in his favor. The first is, ample evidence of severe mental illness. Second, he has two excellent lawyers; one of them, Judy Clarke, saved Susan Smith, the woman who drove her two children into a lake. She was astute enough as a lawyer to handle the case in such a manner that despite outrage about the crime, she saved her client's life. She's done a terrific job, with Quin Denvir, of selecting this jury. Given the combination of the legal talent and the powerful evidence of Kaczynski's mental illness, I think he has a real shot at avoiding the death penalty.

By Ros Davidson

Ros Davidson is a frequent contributor to Salon.

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