Copyright 1997 Times Mirror Company
Los Angeles Times
December 15, 1997, Monday, Home Edition
SECTION: Part A; Page 1; Metro Desk
LENGTH: 3200 words
HEADLINE: KACZYNSKI CASE ILLUSTRATES SHIFTING MENTAL ILLNESS ISSUE; COURT: EXPERTS SAY DIMINISHED-CAPACITY THEORY IS A TOUGH SELL. LAWYERS MAY TRY TO WIN SYMPATHY FROM JURY.
BYLINE: JENIFER WARREN and MARK GLADSTONE, TIMES STAFF WRITERS
DATELINE: SACRAMENTO
BODY:
He must be nuts, right?
Who but a crazy man would live alone for 25 years in a shack no bigger than a movie star's closet?
Who but a crazy man would forgo electricity, a phone, running water and haircuts while dining on squirrel and porcupine roasted over a fire in the woods?
Who but a crazy man would pedal a rickety bicycle through Montana snowdrifts, fetching supplies from a town five miles away?
To his defense attorneys, Theodore John Kaczynski most definitely is sick. But to prosecutors seeking to convict and execute him as the murderous Unabomber, Kaczynski is something else--sick, perhaps, but not sick enough to avoid paying with his life for his crimes.
Later this month, 12 jurors will apply their minds to the matter as Kaczynski's trial opens in Sacramento. Their conclusion about his mental state will almost certainly determine Kaczynski's fate.
Beyond resolving what happens to an alleged killer, Kaczynski's case illustrates the shifting interplay between our nation's laws and the mentally ill people who break them.
The trial also shows--contrary to public perception--the formidable challenge attorneys face in raising mental illness as a defense. It is rare these days for defendants to dodge a prison term by claiming to be mad.
Given those long odds and Kaczynski's firm denials that he is disturbed, defense attorneys declined to pursue a classic not-guilty-by-reason-of-insanity strategy, experts say. Instead, Kaczynski's lawyers are expected to pursue something akin to a diminished-capacity defense, arguing that their client's delusions so clouded his thinking that he could not have intended the killings. If even a single juror buys that argument, Kaczynski could be acquitted of the most serious charges against him.
Most analysts say the chance of an acquittal is remote. But the mental illness claim could bear fruit in the penalty phase, which answers the question of whether a defendant lives or dies.
If jurors are convinced Kaczynski did not "act out of some innate evil" but was driven by "demons inside," they might spare his life, said Elisabeth Semel, a criminal defense attorney in Washington.
Joshua Dressler, a professor at McGeorge School of Law in Sacramento, agreed: "You execute evil people, but you don't execute sick people. That's what the defense will be arguing."
Kaczynski Presents Complication
Lawyers with experience in such cases say they are tough sells.
Los Angeles defense attorney Gerald Chaleff represented the notorious Alphabet Bomber, who was convicted in a 1974 explosion that killed three people and injured 36 at Los Angeles International Airport. Chaleff said "mental cases" usually work only when jurors want to help the defendant, pity the defendant or "feel it wasn't his or her fault because of a condition from birth or a traumatic experience."
Complicating the job in the Unabomber case is Kaczynski himself.
At times, he appears the model of cooperation, sitting attentively at the defense table in a sweater, sometimes taking notes, sometimes smiling at a funny comment made in court.
Other times, however, it's clear Kaczynski resents suggestions that he is not of sound mind. He has called one psychiatrist "the enemy" and repeatedly refused government efforts to give him a mental exam.
In his voluminous journals, Kaczynski wrote that he feared being labeled a "sickie" if he was caught. And during a recent court hearing on his mental state, Kaczynski threw his pen across a table in a burst of agitation.
"There is definitely a client-control problem going on," said Donald Heller, a Sacramento defense attorney tracking the case. "Managing an unstable guy who doesn't believe he is sick is a very delicate job. You're always on pins and needles, wondering when he'll go berserk."
Kaczynski, 55, is charged with four separate bombings, including two fatal attacks in the state capital. His April 1996 capture concluded an exhaustive hunt and appears to have ended a series of bombings that began in 1978, killing three people and injuring 29.
Kaczynski's trial in U.S. District Court in Sacramento is expected to last two to four months. The Harvard University graduate--who has pleaded not guilty in the Sacramento case--also is charged separately in a fatal bombing in New Jersey. He will stand trial in that case later.
Defense attorneys declined to discuss their courtroom strategy or reveal whether they considered a plea of not guilty by reason of insanity. Legal observers, however, say such an option must have been weighed.
Defense psychiatrists who examined Kaczynski say he suffers from paranoid schizophrenia, and his relatives say they've seen his mental health spiral steeply downward through the years.
Even the public looks at Kaczynski--his lifestyle, his anti-technology "manifesto," his alleged crimes--and sees a sick man, psychiatrists say. "People just can't imagine why someone would do this, and that's what generates this gut-level response that he must be crazy," said Dr. Richard Dudley, who teaches at New York University Law School.
But being mentally ill and being legally insane are two very different things, and mounting an insanity defense is tricky. Indeed, an insanity defense is attempted in only about 1% of criminal cases in the United State--and rarely succeeds.
Success was made tougher with a sea change in American jurisprudence that came after a jury acquitted John Hinckley of attempting to murder former President Reagan, whom he shot in 1981. That verdict--which shocked experts and left many Americans believing that Hinckley had beaten the rap--prompted Congress and many states to tighten rules.
In the Hinckley case, prosecutors had to show that the defendant was sane, that he knew right from wrong and could control his behavior. Now the legal burden has shifted to the defense, which must prove insanity "by clear and convincing evidence."
Since then, several notorious defendants have seen their claims of insanity fail. Mass murderer Jeffrey Dahmer of Milwaukee killed and dismembered 15 men and boys, had sex with their corpses and even ate parts of their bodies. Because he took steps to avoid detection--a sign that he knew what he did was wrong--a jury in 1992 concluded he was sane.
John Salvi III--fearing a global conspiracy to force birth control on Roman Catholics--killed two workers at Boston abortion clinics in 1994. But his delusions didn't sway jurors, who found him guilty of first-degree murder.
"For every . . . Hinckley acquittal, there are 100 Jeffrey Dahmer cases, where juries convicted despite overwhelming evidence that the defendant was severely impaired at the time of the crime," said UCLA law professor Peter Arenella.
Journals Could Be Obstacle
In the Kaczynski case, experts see several obstacles to a successful insanity defense--most notably, the journals found in his Montana cabin. One journal described the blast that killed Sacramento computer store owner Hugh Scrutton.
"EXPERIMENT 97. DEC. 11, 1985. I PLANTED BOMB DISGUISED TO LOOK LIKE SCRAP OF LUMBER BEHIND RENTECH COMPUTE STORE IN SACRAMENTO," the entry said.
"He knew he wasn't delivering a banana cream pie," Heller said. "And he wrote about it and took credit for it. . . . They'd never win an insanity defense."
Court documents filed by Kaczynski's lawyers suggest they have stitched together a strategy that raises questions about their client's state of mind but does not quite call him insane.
Their apparent goal? To undermine prosecutors' efforts to show Kaczynski had the criminal "intent" to mail deadly bombs--one element that must be proved for a conviction.
Some experts say such a strategy is a variant of the "diminished capacity" defense made infamous in California by the case of Dan White.
White, who killed San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978, claimed that his consumption of sugary junk food--including Twinkies--affected his judgment, making him only partly responsible for the killings. Charged with murder, he was found guilty of manslaughter and served less than five years in prison.
In raising doubts about Kaczynski's mental stability, defense lawyers are expected to rely heavily on the hermit-like lifestyle their client led in the backwoods of Montana. When Kaczynski was arrested at his cabin near Lincoln, his hair was long and matted; acquaintances called him an eccentric and a loner who rarely bathed.
The defense team's most powerful exhibit may be his 13-by-13-foot plywood cabin, now stored in a warehouse in Sacramento. If the lawyers can get jurors to imagine how it feels in the dark, cramped space Kaczynski called home for more than two decades, it will powerfully illustrate his isolation from--and inability to cope with--the outside world, legal analysts say.
The defense also plans to present testimony from psychiatric experts who have diagnosed Kaczynski as a paranoid schizophrenic. One who examined him for the defense, psychologist Karen Bronk Froming, said this about Kaczynski in a report filed in court:
"Mr. Kaczynski's superior intellect should not be confused with sound mental health. 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."
Family Could Have Impact
Legal analysts predict that testimony from Kaczynski's family may be more compelling. His mother, Wanda, is expected to describe how her son, then 9 months old, was traumatized by being isolated from her for a week while hospitalized for a severe case of hives.
"I . . . remember how he had grabbed the bars of his crib in this hospital, and he'd scream and hold out his arms, and I'd have to go out the door," Wanda Kaczynski told "60 Minutes" in 1996. "When I finally came back to take him home, what they handed to me was not this bouncing joyous baby, but a little rag doll that didn't look at me, that was slumped over, completely limp."
The defense may also cite Kaczynski's refusal to submit to psychiatric testing as proof that he is too sick to know he needs help.
The government, meanwhile, will undoubtedly unveil extensive excerpts from Kaczynski's journals--excerpts that allegedly reveal the purposeful mind of a cold-blooded killer. Prosecutors spelled it out plainly in their trial brief:
"For each of these bombs there is a wealth of evidence showing the defendant's planning and premeditation as well as written admissions of his desire to kill, his frustration at not being able to kill with consistency and his feelings of success when he does kill."
Analysts say the government has ample ammunition for a conviction. Less certain is whether prosecutors can persuade a jury to send Kaczynski to his death--especially given the fact that his brother alerted the FBI to him in the hope that Kaczynski would get psychiatric help.
Either way, the jury's decision will be an agonizing one, said professor Dressler:
"The jurors . . . really have to act like God and look into the character of a defendant and try to say, 'Is this person mad or is he bad?' "
How Would You Defend Him?
You're a defense attorney representing an accused murderer. The evidence against your client--a not particularly sympathetic figure who could face the death penalty if convicted--is daunting. Legal experts say lawyers for accused Unabomber Theodore Kaczynski are penned inside just this sort of legal box. Here are some strategies suggested by attorneys, law professors and others:
Jury Selection
* Find jurors with open minds--especially on the death penalty. Even if jurors convict, they must be receptive to "mitigating factors" that might persuade them to spare Kaczynski's life.
* Aim for panelists who are contemplative, "less black and white, less apt to make a snap judgment," says trial consultant Philip Anthony of Torrance.
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Guilt Phase
* Be clear about your goal. Are you going for an acquittal, trying for a conviction on a reduced charge or merely preparing the jury for the penalty phase?
* Sow seeds of doubt: Were there other participants in the crime? Did investigators thoroughly check all other leads? Is there some explanation--mental illness, childhood trauma--for Kaczynski's conduct? Even if they fail to bring about an acquittal, such doubts can gnaw at jurors, perhaps making them less inclined to order an execution. It only takes one.
* Humanize your client--make him "someone jurors can identify with, rather than a piece of trash they could easily kill," says Georgetown University law professor Paul Rothstein. Everything matters--the client's dress and demeanor in court, even the lawyers' body language, says Stephen Jones, attorney for convicted Oklahoma City bomber Timothy McVeigh. "Do they look sympathetic? Supportive? Caring? It all plays a role."
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Penalty Phase
* Why did he do what he did? Don't offer excuses, offer explanations.
* Acquaint jurors with the defendant's entire life, so they see a complete human, not just a convicted murderer whose crimes left a trail of misery and trauma. "Mercy comes from understanding," says Elisabeth Semel, a criminal defense attorney in Washington.
* Emotional testimony from family members can soften up the steeliest juror. Bring on David Kaczynski, whose suspicions led the FBI to arrrest his older brother. David Kaczynski says the government let him down, perhaps misled him, about what would happen to Ted after his arrest. Jurors may see that as dirty pool.
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Style
* A lawyer's credibility is everything. Tread carefully to win the jury's trust. A backlash could be disastrous. Above all, be honest: "You can't sell what you don't believe in," says Stephen Bright, director of the Atlanta-based Southern Center for Human Rights, which represents defendants in capital cases.
* Don't attack witnesses or show disrespect for the judge, says Sacramento defense attorney Don Heller. "If you blow it, then you'll have a jury thinking, 'Oh, here comes that dirtbag lawyer again,' which is not conducive to saving your client's life." On the other hand, a jury might wind up liking you and wanting to help you. In that scenario, sparing your client's life might become "almost a personal favor," says Loyola Law School associate Dean Laurie Levenson. GRAPHIC: PHOTO: Theodore Kaczynski GRAPHIC-CHART: How Would You Defend Him? / Los Angeles Times