By
Jon Bonné
Court TV
According to his journals, Theodore Kaczynski feared that he would be portrayed as "a sickie." The public, he lamented, would consider him a psychological deviant.
For months, his relationship with his defense lawyers was strained, because that's precisely the portrait of the alleged Unabomber they wished to paint.
It was a strategy geared toward sparing Kaczynski the death penalty.
Then they announced on December 29 that they would not be calling any mental health experts to testify on his behalf -- a move that makes it difficult for them to sustain a case based on his mental defects.
Difficult, but not impossible.
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| The defense's biggest obstacle may be the defendant himself, and his fear of being portrayed as mentally ill. |
The move could mean they have abandoned any attempt to use Kaczynski's mental health as a factor in their defense -- in accordance with his wishes. But it could also mean they are going to try to bring in evidence of his mental problems without calling on experts.
One option -- rarely used -- would be to present their case with testimony from those who know Kaczynski personally, witnesses like his mother Wanda or his brother David. David Kaczynski, who was probably closer to his brother than anyone else, might be able to paint a portrait of him as a highly disturbed individual.
"He could say,'My brother was completely different after such-and-such happened'," said one criminal defense lawyer familiar with mental defect cases in federal courts. "The family could say, 'When he was little, he did strange things and then he moved into this cabin.'"
The testimony of his family and friends, however, would have to focus on their personal observations and beliefs that something was wrong with the estranged Ted Kaczynski. They presumably would not be able to say anything that could be construed as an informal evaluation of his mental state.
Defense lawyers Quin Denvir and Judy Clarke never really had the option of an insanity defense: federal courts severely restricted the use of the insanity defense in the wake of its successful use by John Hinckley, the man who attempted to kill Ronald Reagan. Besides, Kaczynski was convinced he was sane, despite a statement from one defense psychiatrist, Xavier Amador, who said he thought that such thinking was just part of the alleged Unabomber's disorder.
Without Kaczynski's consent, only one real option seemed to remain: to mount a mental-health defense of diminished capacity, still a challenge, but easier to present than a regular insanity defense. And it was a defense that would have avoided the need to claim that their client was insane.
They would have needed to show that Kaczynski may have known that his alleged actions were wrong, but did not have the mental acuity to realize exactly what would happen to those on the receiving end of his mailings. It is still possible they could try and prove that in court.
They could also try and present a standard reasonable-doubt defense, but the evidence against Kaczynski is so strong that there would not be much of a case without bringing Kaczynski's mental state to bear in some way.
The testimony of those close to Kaczynski could help create an impression of Kaczynski's dementia for jurors. However, without psychiatrists and psychologists to offer expert opinions, it becomes difficult to demonstrate that they are legitimate mental disorders.
And Kaczynski would probably be as upset to hear his family and friends talk about his illness as he would to hear mental health professionals offer their informed insights. However, no expert testimony means no court-ordered sessions with psychiatrists for Kaczynski.
But it also means the prosecution can still likely bring in testimony to prove that he knew exactly what he intended to do -- testimony the defense would have a difficult time rebutting without experts to take the stand.
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| The defense brought Kaczynski's tiny cabin, hauled by truck, to Sacramento as one of their key pieces of evidence. |
And the jury will still be required to find doubt for each of the four separate incidents for which Kaczynski is on trial. Kaczynski's self-imposed isolation in Montana for over two decades makes it difficult to bring in witnesses who can describe personal observations of a sustained illness during the time of the bombings.
"One of the problems here in the whole case is that you're trying to assess his state of mind over a ten or fifteen-year period, his state of mind at the time of these bombings," said Howard Zonana, M.D, a professor of forensic psychiatry at Yale University.
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| If Kaczynski is convicted, it may fall on his brother David -- and others who knew the former math professor -- to offer testimony that could spare his life. |
And ultimately, all the legal gyrations of the defense team may not save Kaczynski's life. Their best bet may lie in the separate penalty phase to be conducted should he be found guilty.
The defense is expected to still try and use expert testimony during the penalty phase. While Judge Burrell will ultimately choose what can be done, some experts say it would be unconstitutional to deny Kaczynski the right to have experts weigh in for him and his illness as a mitigating factor.
What is almost certain is that his brother, David, the man who turned him in, would likely appeal to the jury to have mercy upon his brother.
It appears that no psychiatrist, no mental health expert, no legal tactician can erase the bond that remains even today between the two brothers.
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