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Kaczynski lawyers try risky strategy 'Defense of last resort' turns on mental state of Unabomber suspect

SACRAMENTO, CALIF. — SACRAMENTO, Calif. -- To the government, Unabomber suspect Theodore J. Kaczynski is a meticulous terrorist who spent years refining his deadly bombs and keeping "lab notes" ** on his work.

Defense lawyers, however, will counter with a different portrait of the man whose murder trial begins with jury selection here Wednesday: They will describe a paranoid schizophrenic, a man whose illness leaves him incapable of intending, by legal definition, to harm anyone.

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It is, trial analysts say, a risky defense strategy -- but perhaps the best available in a case that has the government promising to fill a federal courtroom with evidence linking Kaczynski to the crimes of the Unabomber.

"A defense of last resort," says Joshua Dressler, a criminal law professor at the McGeorge School of Law at Sacramento's University of the Pacific.

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"The prosecution has to prove each of the elements of a crime beyond a reasonable doubt, plus the intent to commit those acts," Dressler says. "The defense argument will be he may have built the bombs but he couldn't form the intent to kill" because his mind was clouded by schizophrenia with delusions of persecution.

"Intent implies a competent mind," says Andrew Cohen, a Denver-based legal analyst. "If the mind is not competent, the government cannot prove intent."

The Unabomber led authorities on one of the longest, most expensive manhunts in U.S. history. Between 1978 and 1995, the Unabomber's attacks killed three men and injured 29 people.

The government contends Kaczynski is the anti-technology terrorist who ran from society, then spent years plotting against it. A Harvard alumnus, with a Ph.D. in mathematics from the University of Michigan, Kaczynski is described in court documents as enraged about modern civilization and technology. The 67-page manifesto that the government alleges he wrote is titled "Industrial Society and its Future."

If convicted, Kaczynski could be executed. Prosecutors say the death penalty is appropriate in this case because Kaczynski lacks remorse, is not a good candidate for rehabilitation and is a continuing danger to others.

Some observers speculate that defense lawyers, by using an argument that Kaczynski is mentally ill, are looking beyond the trial. Their goal may be to save their client from execution.

"The fact that he is mentally disordered is a significant factor in convincing a jury to show mercy," Dressler says.

To bolster their mental-illness strategy, the defense wants jurors to tour the crude 10-by-12-foot shack in which Kaczynski lived for years without electricity or plumbing. That cabin, which the government took apart, is in storage in Montana.

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Prosecutors intend to show jurors a scale model. But defense lawyers wrote in papers filed last month: "Being able to see the actual cabin is essential to understanding the life and character of Mr. Kaczynski."

The mental-illness defense may have been undermined by Kaczynski's refusal to allow government psychiatrists to examine him.

Last week, the government asked U.S. District Judge Garland E. Burrell Jr. to forbid Kaczynski's lawyers from calling any expert witnesses to discuss his mental condition unless the government's doctors are also allowed to interview him. The judge will rule after hearing from Kaczynski's lawyers.

For 17 years, the Unabomber frustrated federal agents who were trying to find who was behind a string of mail-bomb attacks on people related to universities, computers and airlines.

In letters, the bomber would taunt his investigators and his targets.

In June 1995, he threatened to blow up an airliner bound from Los Angeles -- disrupting air travel across the country over the Fourth of July weekend.

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The same week, he sent newspapers a 35,000-word manifesto in which he railed against technology and the industrialization of society. If the New York Times or Washington Post did not print the diatribe, the Unabomber wrote, he would be forced to kill again.

But the team of federal agents tracking hundreds of leads found the suspect only after talking with David Kaczynski, the defendant's younger brother.

David Kaczynski saw similarities between the language in the Unabomber manifesto and the writings of his brilliant, reclusive brother. David Kaczynski and his mother, Wanda, eventually made the anguished decision to take their suspicions to the FBI.

By the time Theodore Kaczynski, who had retreated from a University of California faculty position to a shack in Montana, was arrested in April 1996, the government had linked the Unabomber to 16 attacks.

In Sacramento, Kaczynski is charged with 10 counts related to four bombings, including two murders -- the death of computer store owner Hugh Scrutton in 1985 and the killing of timber industry lobbyist Gilbert Murray in 1995.

Kaczynski also faces a federal murder charge in New Jersey, where he is accused of the fatal attack on advertising executive Thomas Mosser in 1994.

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Jury selection is expected to last at least a month. Judge Burrell, a five-year veteran of the federal bench with a reputation for caution, has estimated the trial will last four to six months. Cameras will not be allowed in the courtroom.

The prosecution will be led by Robert J. Cleary of the U.S. attorney's office in New Jersey. He will be joined by federal prosecutors from San Francisco and Sacramento.

Kaczynski's legal team is composed of veteran federal public defenders, led by Quin Denvir of Sacramento and Judy Clarke, who convinced a South Carolina jury in 1995 not to execute Susan Smith after she was convicted of drowning her young sons.

Kaczynski's lawyers will not enter a formal insanity plea. The federal Insanity Defense Reform Act of 1984, passed after John Hinckley pleaded insanity and avoided conviction for his attempt to kill President Ronald Reagan, sets a strict definition for insanity. A defendant must suffer a severe mental illness and be unable to appreciate the wrongfulness of his acts.

In federal court, insanity pleas are "extraordinarily unsuccessful," Dressler says.

Kaczynski's attorneys, according to court papers, will argue that his paranoid schizophrenia prevented him from forming an intent to harm -- which is part of the legal definition of a crime.

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That may be a difficult notion to convey to a jury, when the government promises to introduce journals in which Kaczynski allegedly details his plans to "kill someone I hate" and gain "revenge on society."

"I think the defense position on this one would be very hard to convince a jury of," Dressler says. "I have to say it's hard to imagine that this mental illness would cause him not to form the intent to kill."

Kaczynski's journals are just part of the evidence that federal agents say they found in his Montana cabin. The shack, the government says, was a "bomb-making laboratory" where Kaczynski fashioned explosives from ingredients including black plastic tape, nails and screws, 9-volt batteries and brown paper.

A search of the cabin, the government says, produced:

A typewriter that matches the letters sent by the Unabomber from 1982.

A handwritten draft of the Unabomber manifesto and a carbon copy of the manifesto.

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Notebooks written in Spanish, English and a numerical code that tie the author to the bombings and binders in which the suspect kept notes on the progress of his bomb-making skills.

A bomb.

"A handwritten autobiography written around 1979 which contains the statement that Kaczynski intends to start killing people and that the purpose of the autobiography is to explain that he is not sick."

According to the government, Kaczynski took credit for the bombings in his coded journals.

In one entry, prosecutors say, the defendant wrote: "Experiment 97. Dec. 11, 1985 I planted bomb disguised to look like scrap of lumber behind Rentech Compute store in Sacramento. According to San Francisco Examiner, Dec. 20, the 'operator' (owner? manager?) of the store was killed, 'blown to bits,' on Dec. 12."

In an entry dated Feb. 22, 1982, Kaczynski allegedly complained about a thwarted attack:

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"Last fall I attempted a bombing and spent nearly 300 bucks just for travel expenses, motel, clothing for disguise, etc. Aside from the cost of materials for bomb. And then the thing failed to explode. Damn, this was the firebomb found in U. of Utah business school outside door of room containing some computer stuff."

Another document that the government alleges it found in the Montana cabin reads, "August 21, 1978: I came back to the Chicago area in May, mainly for one reason: So that I could more safely attempt to murder a scientist, businessman, or the like. Before leaving Montana, I made a bomb in a kind of box, designed to explode when the box was opened. I picked the name of an electrical engineering professor out of the catalogue of the Rensselaer Polytechnic Institute and addressed the bomb -- a package to him."

The prosecution says Kaczynski "despised anyone who interfered with the solitude that he craved, and he has harbored a deep-seated hatred of certain aspects of modern technological and industrial society."

But the case is circumstantial, says Cohen, the Denver legal analyst. "No one saw Ted Kaczynski mail a bomb."

"No case is a slam-dunk," Cohen says. "But for the defense, this looks very difficult."

Key participants

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DEFENDANT:

Theodore J. Kaczynski was born in Evergreen Park, Ill., on May 22, 1942, to Wanda and Theodore R. Kaczynski, a sausage maker. Kaczynski graduated from Harvard University in 1962, and received a master's degree and doctorate in math from the University of Michigan. He quit a teaching post at the University of California at Berkeley without explanation in 1969. Between 1979 and 1996, Kaczynski lived in a small cabin in Lincoln, Mont. He was arrested April 3, 1996, and subsequently indicted in five Unabomber attacks.

JUDGE:

Garland E. Burrell Jr., 50, had been head of the U.S. attorney's civil division for two years when he was appointed to the federal bench by President George Bush in 1992, becoming the first black judge in the Eastern District of California. He graduated from California State University at Los Angeles with a sociology degree, and received a master's in social work at Washington University in St. Louis and a law degree in 1976 from California Western School of Law.

PROSECUTOR:

Lead prosecutor Robert J. Cleary, 42, is the No. 2 man in the U.S. attorney's office in New Jersey and former head of the New York City federal district's major crimes division. His familiarity with the 1994 Unabomber killing of New Jersey advertising executive Thomas Mosser, which is to be tried separately, will help in Sacramento. Cleary made his reputation in white-collar and tax fraud cases in New York, and he lectures on the subject at the FBI Academy and Fordham University, where he attended law school.

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DEFENSE ATTORNEY:

Lead defense attorney Quin Denvir, 57, has spent most of his career in poverty law and public service. He took the job of chief federal public defender in Sacramento last year. Denvir, a native of Chicago, is a graduate of the University of Notre Dame and the University of Chicago Law School. He built a reputation as a top appellate lawyer and has argued before the California

Supreme Court 25 times.

From wire reports

Pub Date: 11/09/97



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