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Theodore J. Kaczynski Found Mentally Competent for Trial

By William Booth
The Washington Post
SACREMENTO, CALIF.

Theodore J. Kaczynski is mentally competent to stand trial, prosecutors and defense attorneys said Tuesday, putting the case back on track for opening statements Thursday after a tumultuous two weeks.

Attorneys for both sides agreed with a government psychiatrist who examined the Unabomber suspect last week and found him mentally fit for trial - despite an apparent suicide attempt.

Though the question of Kaczynski's mental fitness is answered, it remains unclear who will represent the 55-year-old mathematics professor turned hermit: his current defense team, new lawyers or the defendant himself.

Kaczynski, who has fought with his current attorneys over their intent to introduce a limited mental health defense, two weeks ago requested that he be allowed to represent himself instead.

U.S. District Judge Garland Burrell said Tuesday he would decide the issue Thursday morning and then proceed to put the case before the jury.

The judge was clearly growing impatient, repeatedly stating that his time was being wasted and raising questions about why these issues were not raised before jury selection began.

The judge signaled that he will not appoint a new attorney for Kaczynski, though he seemed to be undecided over whether the defendant could represent himself or whether to order him to keep his current counsel.

Each raises a set of complex legal issues, opening up ever more avenues for appeal.

"The judge is faced with a number of options, none of which are very presentable, at least not from an appellate standpoint," said Robert Holley, a former federal defender who is following the trial. Kaczynski, who faces charges that he killed two people and maimed two others during a decades-long bombing spree against technological society, brought his trial to a halt two weeks ago when he refused to continue with his current lawyers.

Kaczynski told the court he could not "endure" a mental health defense. According to his lawyers, Kaczynski suffers from the delusions of a paranoid schizophrenic and has as one of his symptoms a profound dread of being labeled mentally ill. Because of his request to represent himself, and an apparent suicide attempt, Burrell ordered last week's competency exam.

A new attorney for Kaczynski seems highly unlikely at this late date, in large part because it would take a new lawyer many months to prepare for trial. One lawyer who was mentioned as a possible replacement for the current defense team, San Francisco Bay Area lawyer Tony Serra, said he would not be available for trial until September 1998.

"I'm tentatively not inclined to bring in new lawyers," Burrell said. "The difficulty Mr. Kaczynski has experienced with these lawyers will resurface with new lawyers."

The main issue is Kaczynski's ability to shape the central strategy of his own defense. Previous court rulings make it clear that a defendant has the right to make decisions regarding his plea, whether he will take the stand or not, and a possible insanity defense. But generally, defendants are not granted control over the presentation of evidence, which witnesses to call and day-to-day management of the case.

But there is a gray area. Does Kaczynski have a say in whether he is portrayed as mentally ill - either as a way to convince jurors that he was so delusional that he could not have formed the legal intent to kill or as a way to discourage jurors from condemning him to death?

Burrell has previously stated in court that Kaczynski's attorneys are "in control" of his mental health defense, but legal experts say it is not so clear-cut.

Prosecutor Robert Cleary called it "an open legal question." But the judge did not appear to agree.

Then Cleary urged Burrell to order Kaczynski's current attorneys to heed their client's wishes and drop a mental health defense during the so-called guilt phase of the trial.

Kaczynski attorney Quin Denvir suggested he and fellow lawyer Judy Clarke would be loath to follow their client's wishes. Moreover, Denvir said, "We believe there is no legal authority for the court to order that."

Burrell suggested Tuesday that he might hold Kaczynski to an agreement reached during a closed-door meeting Dec. 22. During that session, Burrell said Kaczynski agreed to stick with his current lawyers in return for their promise not to introduce expert testimony about his mental state during the guilt phase of the trial. Kaczynski, however, agreed his lawyers could marshal mental health evidence during a punishment phase if he was found guilty.