Kaczynski Found Competent to Stand Trial

After a week of psychiatric scrutiny, Theodore Kaczynski was found competent to stand trial Tuesday, paving the way for opening statements to begin as soon as Thursday and a possible reopening of plea bargain negotiations.

U.S. District Judge Garland E. Burrell Jr. ordered jurors to return to court Thursday after a two-week delay. The judge will also rule then on whether the Harvard-trained mathematician can act as his own lawyer.

The Unabomber case was apparently put back on track after Dr. Sally Johnson told the court that Kaczynski was mentally competent to stand trial. Although the contents of the mental evaluation remained sealed, the judge late Tuesday released a copy of the cover letter of Johnson’s report.

“It is my opinion that despite the psychiatric diagnosis described in the attached report, Mr. Kaczynski is not suffering from a mental disease or defect rendering him mentally incompetent,” wrote Johnson, who spent 19 hours last week interviewing the defendant.

The one-page cover letter did not disclose the diagnosis. But Johnson said Kaczynski was not “unable to understand the nature and consequences of the proceedings filed against him or to assist his attorneys in his own defense.”

In light of the psychiatrist’s findings, Quin Denvir, Kaczynski’s lead counsel, and prosecutors agreed that the Montana hermit is competent to stand trial on charges that he is the anti-technology terrorist whose attacks killed three people and injured 29 others.

Kaczynski, dressed in a white sweater, sat between his defense lawyers, writing and engaging them in conversation during Tuesday’s hearing.

The case was stalled when Burrell ordered a competency evaluation after Kaczynski apparently tried to commit suicide and sought to fire his attorneys and take over his own defense.

Although the judge recalled the jury, Tuesday’s hearing left unresolved several crucial questions, including whether:

* The competency finding will prompt prosecutors to be more open to plea bargain overtures from the defense. Late Tuesday, Denvir would not close the door on a renewal of talks, saying, “You never know, do you?” And a government source said the prosecutors “will listen to any offer.”

* The U.S. attorneys office, as revealed by defense lawyers, has new information about “secret shacks” that Kaczynski may have built in the Montana forests near his tiny cabin not far from the Continental Divide.

* Kaczynski will be allowed to act as his own lawyer or, more likely, be required to stick with Denvir and attorney Judy Clarke and whether they will be permitted to pursue a mental health defense over the defendant’s continuing objections.

Burrell refused to allow Kaczynski to retain San Francisco criminal defense attorney Tony Serra because Serra could not begin trial for at least six months.

The judge questioned whether Kaczynski’s request to represent himself is timely or is merely designed to delay the trial, which was set to begin Jan. 5. The judge said the issue of Kaczynski’s representation would be the first item of business Thursday.

The focus of Tuesday’s hourlong hearing was mostly the roots of the rift between Kaczynski and his court-appointed federal public defenders. The dispute has been discussed in closed-door meetings between Kaczynski, his attorneys and Burrell.

On Tuesday, Burrell rebuffed prosecutors in their bid to gain access to transcripts of meetings between defense lawyers and the judge.

In a rare display of anger, Burrell scolded prosecutors, saying that he won’t allow the release to the government of confidential conversations with Kaczynski that could be used to execute him.

“Statements by Mr. Kaczynski could be used by the government in its attempt to kill him,” the judge snapped. “That’s a deadly serious matter.

“I can understand why the defense doesn’t want to release more of what Kaczynski said. They would be helping the government in its quest to obtain its objective,” Burrell said.

The judge, however, sketched out details of what ignited the clash between Kaczynski and his attorneys.

Burrell said he believed that the rift had been settled during a crucial closed-door meeting Dec. 22. At that session, Kaczynski agreed to keep Denvir and Clarke if they would not call mental health experts about his alleged paranoid schizophrenia, Burrell said.

The judge said Kaczynski also agreed that if he is found guilty his lawyers would control whether to put on mental health evidence at the trial’s penalty phase.

“Kaczynski and his attorneys then proceeded amicably until he learned that defense counsel would present non-expert evidence,” Burrell said in court papers.

That material probably would encompass photographs of the professor-turned-recluse and descriptions of the cramped Montana cabin where he lived for two decades before his 1996 arrest.

Burrell said the latest dispute, which publicly erupted Jan. 5, centered on whether Kaczynski understood that his attorneys would present this evidence, even though they wouldn’t be calling mental health experts.

Legal observers were not sure if Burrell was on firm ground by suggesting that Kaczynski may have relinquished his right to represent himself back in December.

“I think Judge Burrell is on thin ice in terms of what the current law is if he denies Mr. Kaczynski the right to represent himself,” said Joshua Dressler, a professor of law at Sacramento’s McGeorge Law School who is following the trial.

If Kaczynski says he is ready to represent himself, Dressler said, the timeliness issue “is a red herring.”

As for a possible plea bargain, Dressler suggested that the government now may have less incentive to enter into a deal with Kaczynski.

Under a possible agreement, Kaczynski, who has pleaded innocent, would plead guilty in exchange for a sentence of life in prison without the possibility of release to escape a death sentence.

But sources say that Kaczynski has previously insisted on what the government views as unacceptable conditions--including the right to pursue an appeal on the legality of the FBI search of his cabin. The search, according to authorities, produced mounds of evidence, including Kaczynski’s own writings implicating him in bombings dating back to 1978.

In Sacramento, Kaczynski is charged in the bombing deaths of two men and in blasts that seriously injured two academicians.

Plea bargain talks stalled in December but were restarted about two weeks ago. They were halted a second time while Johnson completed her evaluation.

Government sources maintained that they have been open to entertaining a plea deal. But they cautioned that Johnson’s findings do not necessarily make such a bargain more likely now.

In another development, the defense team noted that in Kaczynski’s journals, he wrote about the construction of a shack in a wilderness area away from his cabin five miles from the town of Lincoln, Montana.

The cabin he called home for years has been trucked to Sacramento by Kaczynski’s lawyers so they can show jurors his cramped living conditions.

He wanted another cabin, his lawyers said in court papers filed Tuesday, so “he could retreat when encroachments of organized society on his life at his cabin became too great to endure.” They also cited reference to another small hovel.

Defense attorneys said the government never mentioned that either shack had been located, but that last week they received information from “a media source.”

Denvir and Clarke said prosecutors have refused to provide any details. The issue is expected to be discussed at a hearing today.

Prosecutors in a document filed late Tuesday said the government “has located structures in the area [in Montana] but has no way of ascertaining whether such structures are the same as those referred to in Kaczynski’s writings.”

Times staff writer Ronald J. Ostrow in Washington contributed to this story.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Determining Competency (Southland Edition, A16)

Dr. Sally Johnson, who examined Unabomber defendant Theodore Kaczynski, has given U.S. District Judge Garland E. Burrell Jr. a “psychiatric diagnosis” of the defendant, but said that he was competent to stand trial. The judge has not ruled on whether Kaczynski will be allowed to defend himself.

Under federal law, a defendant:

* Is competent to stand trial if he rationally understands the charges against him and can cooperate with lawyers.

* Is competent to defend himself if he can understand the proceedings against him, the role of a lawyer and the disadvantage of going to trial without one.

Even if a defendant meets those tests of competency, a jury could still decide that at the time of the crimes he is accused of he was suffering from a mental disease that would lead them to spare him the death penalty.