Newsreal: The worst show on earth

Theodore Kaczynski should be in a mental hospital. Instead, he's about to become the star in a grotesque courtroom circus.

Published January 15, 1998 8:00PM (EST)

Accused Unabomber Theodore Kaczynski, who's been described by his defense lawyers as a paranoid schizophrenic, is this week being tested by a court-appointed psychiatrist to determine whether he is competent to stand trial and to act as his own attorney, as Kaczynski has requested. Unless the Justice Department -- which has reopened negotiations on the subject -- agrees to a plea bargain, most observers believe that the trial will eventually proceed, with an evidently mentally ill defendant in the spotlight.

What is the standard for "competency"? How could Kaczynski, who has already tried to commit suicide in prison, be judged able to act as his own attorney? And if the trial proceeds, what is likely to happen? Salon spoke with Mark Levy, M.D., assistant clinical professor of psychiatry at the University of California at San Francisco, who often acts as a forensic consultant in competency cases.

What is "competence" in the legal sense?

It's basically the ability to understand the court proceedings, to work within the context of the proceedings and function reasonably -- these are loose terms -- and to work with one's attorney in mounting a reasonable defense. You can't say, well, I'll work with my attorney as long as he argues that the Martians are invading. That's not a reasonable defense. That's part of the issue to be evaluated with Kaczynski ...

It's not enough to be diagnosed as mentally ill?

No. There's three concepts that need to be differentiated in a legal context. One is "psychosis" which is a medical term; one is "insanity" which is a medical/legal term, and comes into play when determining a person's guilt or innocence; and the third is "competence" which is an entirely legal term. In the legal context, for example, you can be a psychotic but sane; you can also be psychotic but competent to stand trial.

How does a court-appointed psychiatrist go about determining a person's competence?

The first thing you do is to try and make an accurate diagnosis, which in Kaczynski's case would mean determining whether the preliminary evaluation that was done of Kaczynski by the defense psychiatrist and psychologist -- that this man is a paranoid schizophrenic -- is correct.

How do you do that?

Through interviews, a look at his written material and, ideally -- and if he's forced to cooperate -- a battery of psychological tests. With paranoid schizophrenia, the tests look for characteristic mental deficits, like difficulty with abstraction. Schizophrenics are concrete in their thinking. You'd find that when you say to him, "Mr. Kaczynski, when you hear the proverb, 'a rolling stone gathers no moss'" -- despite his high IQ, he may say, "Well, it's like if you roll a stone on the ground you won't get moss." A failure to abstract. Now he may be smart enough to get that one, but someplace along the line, relative to his intellect, you'd find a surprising amount of concreteness to his thinking.

Another indicator may be delusions, which in Kaczynski's case I think they'll find.

How do you test for delusions?

The Rorschach Test, the ink-blot test. As long as a paranoid schizophrenic can systematize, he can keep his thinking relatively organized. If you say, "When were you born, where were you born, what was your mother's maiden name" and ask very specific questions, someone like Kaczynski will perform well. However, if you give them an unstructured environment, like the Rorschach, they fall apart. If you say, "What do you see in this ink-blot?" a healthy person will say, "It's a butterfly," or this or that response that's within a wide array of things that are correlated to healthy people. A schizophrenic will give you more and more bizarre responses: "Well there's a gun, and in the gun there's an amoeba and the gun is in the mouth of a woman ..." You also see that their anxiety rises. If you ask them open-ended questions, they'll get very anxious.

Like, "Tell me about yourself ..."?

"Tell me about yourself," "tell me about your feelings in a winter's night in your cabin ..." Because then they'll be flooded by unconscious or partially conscious impulses that they're terrified of and they don't have the defense mechanisms with which to bind.

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Anything else to look for in Kaczynski?

Major depression, which is acute now because his worldview is crumbling. He's faced with having to give up the house of cards that has kept him partially sane. If his worldview of the threat of technology justifying murder is seen as simply insane, and therefore invalid, then his whole life has been worthless. That's a very depressing conclusion that I don't think he's capable of bearing.

What makes you think that?

He seems to have gotten much worse since the issue of his insanity defense has come up. That was what presumably led to his suicide attempt. You're seeing an acute suicidal depression that's emerging underneath as his paranoid defenses are challenged and begin to crumble.

What would happen if he is found not competent to stand trial?

He would be treated against his will in a mental hospital. Usually, defendants who are found not competent initially come back and are tried once they've been given medication and whatever other treatment is deemed appropriate. They are tried when they are cured, or more usually when their symptoms are under control.

You believe Kaczynski is incompetent to stand trial?

I believe he is, though I haven't examined him. But everyone knows. The cop on the corner knows he's a loon.

Even before he tried to commit suicide.

Normally, someone who puts his head through a noose and says, "I hate this life, get me out of here," should not be considered competent to stand trial. If he walked into a community mental health clinic at that point, and was deemed to be a danger to himself, he could be held against his will for treatment. If he were in a hotel room trying to hang himself with his underwear and brought in to a clinic by the police, he would be deemed incompetent and would lose his civil rights despite the Bill of Rights.

So how might the court-appointed psychiatrist find him competent?

Well she could find that he's not psychotic, though I think that's unlikely. She could find him psychotic but "compensated." That is, even though he's got some ideas that people would regard as delusional, he is quite capable of understanding the proceedings. He doesn't have to be working well with an attorney. He doesn't have to be a good attorney to be allowed to represent himself. It's a very low test. It's dumbed down and made easy to say he's competent. It's much more difficult -- but correct -- to say that he is a paranoid schizophrenic who is decompensating as the psychotic nature of his beliefs come into question, that he's also acutely suicidal. On that basis alone, he's incompetent in my book.

But, in defense attorney Ronald Kuby's words, if he can tell the difference between the judge and a grapefruit ...

That's the thing. Dumbing it down. The easy way out on this one is to say he's competent because he's got a 160 IQ and he can answer some simple questions about what the proceedings are, that he said, "Yes of course I'll work with the attorney." And the judge will have no choice -- I think he isn't particularly imaginative anyway -- but to let the trial go on. And it'll be a circus like Colin Ferguson, who represented himself (with Kuby as his legal advisor).

You don't think Kaczynski should be allowed to be his own attorney?

What will happen if he's deemed competent -- which means nobody will be treating him -- and argues his own case in court? His fantasy probably is that he'll get a platform from which to argue the validity of his beliefs, and in some way to try to justify his actions. To Kaczynski, it almost doesn't matter if he's executed because he'd be a martyr in his own mind. "The world wasn't ready to hear the truth I had to offer." But the reality will be that as his anxiety rises, under the circumstances of the trial, as the prosecutor cross-examines him and rattles him, he'll become more and more out of control. His actions and perhaps his behavior will become idiosyncratic and bizarre, as you saw with Colin Ferguson.

Some observers think that Kaczynski may be crazy like a fox, that he has known exactly when and how to disrupt the proceedings, in order to save his life.

Oh sure. The less you know about him, it might seem that way. But I also think
it might save his life because the jurors may have second thoughts about imposing the death penalty after seeing him come apart in the courtroom. Depending upon how disorganized he becomes, it might become a mistrial. He can't try his own case if he has to be kept in another room watching it on television.

By Ros Davidson

Ros Davidson is a frequent contributor to Salon.

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