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(January 15) -- The government psychiatrist working to determine Theodore Kaczynski's competency is expected to wrap up her work tomorrow, as prosecutors asked the court for a hearing to go over the issues surrounding Kaczynski's representation in court.
Dr. Sally Johnson, who works at the federal prison in Butner, North Carolina, has spent the week in the lineup room at the Sacramento County jail where Kaczynski is being held, talking with the man suspected of being the Unabomber as his lawyers watch, unable to listen to her work.
On Tuesday, U.S. District Judge Garland Burrell allowed Johnson to peruse the letter Kaczynski had written him, as well as the full transcripts of the several closed-door sessions held between the judge, Kaczynski and his lawyers in mid-December.
The judge also allowed government prosecutors and the public access to new versions of those transcripts which are less heavily edited than the versions previously released last month. The transcripts were originally censored because of fears the material might violate Kaczynski's attorney-client privilege, but his lawyers did not object to the new versions.
A report on Kaczynski is expected by Johnson by Friday evening. The judge will allow the defense to see it, but will only give prosecutor Robert Cleary and his team an edited copy, again to protect Kaczynski's rights. Burrell indicated the government will eventually get access at a later date. The government is not sure if it will fight to get full access to the report.
"We'll cross that bridge when we come to it," said prosecution spokesperson Leesa Brown of the judge's ruling. "The judge does leave the window open for us to do it."
However, the prosecution asked today to have a discussion in court about Kaczynski's representation at trial if he is found competent -- before the hearing on January 22 that will determine his competency.
Among the issues they want to cover are which lawyers might help defend Kaczynski, and whether a mental defect defense can be used against Kaczynski's wishes, as well as the possible issue of his self-representation.
"The government does not believe the Court should take action that results in a defendant representing himself in a capital case unless there is no other course open to the Court," they said in court papers. "The Court should direct current defense counsel to continue to represent the defendant and to abide by the defendant's wishes concerning the mental defect defense. If defense counsel decline to comply, the Court should use its civil contempt authority to compel compliance."
Kaczynski requested to serve as his own counsel after requests to switch lawyers last week was turned down by Judge Burrell. One issue Johnson will need to help the judge determine is whether Kaczynski has the mental ability to represent himself.
Her real work will likely come next week, when the court holds a competency hearing to determine if Kaczynski is able to stand trial. Exactly how far she will go in making that determination is unclear, but she is only required to offer her opinion about Kaczynski's mental problems and abilities. The decision to let the trial continue rests with the judge.
Johnson is no stranger to high-profile cases. In 1989, she found televangelist Jim Bakker able to go to trial, and in 1981, she tested attempted Reagan assissin John Hinckley, Jr. and found him competent as well.
Also hinging on Johnson's work is a possible plea bargain being considered by the Justice Department. Officials have acknowledged that they are still considering a plea which would spare Kaczynski's life, but they want to guarantee his conviction will not be appealed. Kaczynski's lawyers had wanted to reserve the right to object to the seizure of voluminous amounts of evidence from his rural Montana cabin -- much of which is crucial to proving the government's case.
However, Justice Department officials say that any decision is on hold until the competency hearing is complete.
What will be considered at the hearing is the federal competency standard, primarily set by a 1960 Supreme Court decision. It is based on on a defendant's ability to have a "rational" understanding of the court proceedings and the ability to consult with lawyers about the preparation of a defense. Defendants rarely fail to meet the standard, even if they are found to have significant mental faults.
Competency tests usually focus on simple questions about the trial: Does the defendant understand the charges against him or her? Who runs the courtroom? Is the prosecution for or against the defendant?
Psychiatrists also frequently question others who know the defendant, such as family members or prison guards, as well as the defense lawyers, who are a primary source of information for the part of the competency standard that addresses the question of the ability to assist counsel.
"The attorney is the expert, because he or she is able to tell you the extent to which the defendant is cooperating," said psychiatrist Paul Applebaum of the University of Massachusetts, who has performed numerous competency exams.
Laws surrounding competency standards are somewhat vague on the federal level, something which may give Judge Burrell the option not only to determine Kaczynski's competency but also to choose exactly to what degree he can defend himself.
Because Kaczynski faces the death penalty if convicted, the judge's freedom to rule on this issue may help prevent Kaczynski from unwittingly being convicted.
"I think it's a mistake to say the standard for whether you can represent yourslf is the same as whether you can go to trial," said Richard Dieter, director of the Death Penalty Information Center. "It's a big leap to say that you're competent to waive your right to counsel and know all that implies."
The current trial will cover incidents in 1985 and 1995, as well as two bombings in 1993. A separate trial will cover charges against Kaczynski for a 1994 bombing in New Jersey.
Federal authorities believe that Kaczynski, 55, is the Unabomber, responsible for sixteen mail and package bombs that killed three people and injured 23 during between 1978 and 1995 in attacks across the country.
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