Plea negotiations to resolve the federal bombing charges against Unabomber defendant Theodore Kaczynski went into a deep freeze the moment Kaczynski demanded to represent himself and his lawyers responded by saying they believed he is legally incompetent, Justice Department officials said Monday.
Because the law requires that a defendant be legally competent to enter a guilty plea, Justice Department prosecutors could not forge such an agreement until Kaczynski completes a competency examination, which began Monday.
Just as important, until Kaczynski’s motion to represent himself is resolved, it is unclear who–his current trial attorneys or Kaczynski–is authorized to conduct plea negotiations.
The case is in a legal holding pattern until Kaczynski undergoes a psychiatric examination ordered Friday by U.S. District Judge Garland Burrell Jr. in Sacramento.
Burrell has scheduled a Jan. 22 hearing to address the results of the exam, which is being conducted by a federal prison psychiatrist, Dr. Sally Johnson, in the Sacramento County Jail.
Kaczynski, 55, has been under 24-hour surveillance since Thursday, when federal marshals and county jail officials reported that he apparently attempted to commit suicide by hanging himself with his underwear.
Opening statements in the trial were scheduled for Jan. 5, but were postponed for two days after Kaczynski said that he wanted to discuss with Burrell his concern about his attorneys, Quin Denvir, Judy Clarke and Gary Sowards.
His concern was that the lawyers planned to present a mental-defect defense to charges that he killed two men and injured two others with bombs sent through the mail as part of what prosecutors say was an 18-year campaign of bombings designed and carried out by Kaczynski in a war against technology.
Kaczynski, described by the lawyers as a “high-functioning paranoid schizophrenic,” is a tortured individual who “cannot endure” the prospect of being labeled mentally ill, Clarke said last week.
The battle over Kaczynski’s defense has raged in his legal camp for several months. His lawyers were forced to drop plans to use an insanity plea after Kaczynski refused to be tested by government medical experts as ordered by Burrell.
When the lawyers persisted in presenting a mental-defect defense as perhaps the best way to avoid the death penalty, Kaczynski tried unsuccessfully to be represented by another lawyer who offered to defend him for free.
Burrell rejected that idea because the lawyer needed considerable time to prepare for trial and a jury of 18, including six alternates, has been waiting to begin since December.
In his ruling, Burrell said he believed the lawyers had the authority to decide what sort of defense strategy to pursue.
That comment, Burrell concluded later, might have been what drove Kaczynski to attempt suicide. The morning after the alleged attempt, Kaczynski asked to represent himself rather than submit to a mental-defect defense.
At that point, Denvir and Clarke said they believed Kacznyski’s motion was an indication he was legally incompetent.
Legal competence requires a defendant be able to understand the proceedings and charges against him and be able to cooperate and assist his attorneys.
Because Denvir and Clarke view a mental-defect defense as the best strategy, they viewed Kaczynski’s rejection of it and desire to represent himself as legal incompetence.
As the case has progressed toward trial, Kaczynski’s lawyers have attempted to resolve the case without a jury.
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They made an appearance before the Justice Department committee that recommends whether the death penalty will be sought, but their request to withdraw that authorization was rejected.
Last month, they attempted to negotiate a guilty plea but were rejected by the department.
Last week, the defense attorneys asked to negotiate with Justice Department lawyers Robert Cleary, Steven Lapham and Stephen Freccero, who are prosecuting the case.
The talks have not gotten much beyond the fact that defense lawyers called prosecutors and reinitiated contact, said a senior Justice Department official. Under those situations, prosecutors generally agree to talk, the official said.
“The department gave really thorough consideration to this last month and concluded that the facts at that time didn’t justify a plea,” the official said. “The department is always going to consider what the facts are. If new facts are brought up, the department will look at them.”
Perhaps the earliest negotiations could resume would be this weekend, said another department official. Last week, Burrell ordered that the results of the psychiatric exam be turned over Friday to the prosecution and defense.
Should the psychiatrist find Kaczynski competent, the defense could resume negotiations, but the prosecution would be in an odd situation, with Kaczynski’s motion to be his own lawyer still pending.
“How could they negotiate when they don’t know who is actually in charge of the defense?” a Justice Department official said. “Is it Kaczynski or is it the trial team? I doubt that anything will happen until Judge Burrell decides who is in charge of the defense.”
Under the current scheduling, the prosecution and defense have until noon Jan. 21 to notify Burrell if they have any objections to the psychiatric findings and whether they would call any witnesses besides Johnson at the Jan. 22 competency hearing.
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