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December 18, 1998
Lawyers and psychiatrists from both the defense and prosecution teams for convicted unabomber Theodore Kaczynski are satisfied with the outcome of the case, they reported at an October meeting of the American Academy of Psychiatry and the Law (AAPL). Speaking to a packed hotel ballroom at AAPL's annual meeting, case participants related their roles and discussed the issues involved in identifying, evaluating, and trying Kaczynski.
Because Kaczynski made it clear to his defense attorneys that he did not want the insanity defense used in his case, they filed a mens rea defense of mental disorder. The U.S. lead attorney then filed a motion seeking to have forensic psychiatrists Park Deitz, M.D., and Phillip Resnick, M.D., examine Kaczynski.
The defense attorneys filed a counter motion saying that Kaczynski should not have to be made available for the exam because there was no formal insanity defense plea.
Attorneys fought about every aspect of the psychiatric examination, said Resnick, who was an expert for the prosecution, including whether defense attorneys could be present, whether to videotape, the length of the exam, and whether to ask about the crime.
The defense said that Kaczynski was terrified of psychiatrists and that he declined to be interviewed.
Resnick told Assistant U.S. Attorney Robert Cleary that if Kaczynski was too terrified to be examined, then the question of competency to stand trial should be raised. Cleary did not want to raise that issue, said Resnick. Meanwhile "the defense had to walk a thin line between being fired by their client or raising mental illness to save his life." Eventually the judge decided that both sides could examine him based on writings alone so that no side would be given undue advantage.
Cleary said that the mental defect defense that Kaczynski used is different from insanity procedurally and substantively. It does not excuse criminal conduct, but rather is an attack on the government's proof of intent. It does not provide a clear statutory right for the government to get a psychiatric evaluation.
"In our view, we think it was a stroke of brilliance," said Cleary. The defense couldn't successfully raise an insanity defense because there was "such powerful evidence of the defense motive and intent and efforts to divert attention. It was almost impossible to make that defense."
Forensic psychiatrist Seymour Halleck, M.D., got involved in the case in October 1997. At that time, the defense attorneys thought that Kaczynski was falling apart, said Halleck. Psychiatrists and psychologists were concerned about his fragility and suicidality and did not talk to him about the crimes. They did not believe that Kaczynski, with his enormous need for privacy, his paranoia, and distrust of psychiatrists, could tolerate six to seven days of examination. Halleck, after consulting with colleagues, said the length of time would be stressful for Kaczynski and that his distress might distort the validity and accuracy of the experts' report.
"I struggled in this case with the ethics of how you testify about somebody, in a case this important, without having seen that individual," said Halleck. "Everything I could report would be compromised by not having seen the individual. On the other hand, I felt I could make a statement about him because of the volume of the material. He was very self revealing."
Halleck concluded that Kaczynski was a brilliant man with antisocial tendencies, an isolated individual with an inordinate and pathological need for privacy. He made a differential diagnosis of paranoid schizophrenia and paranoid personality delusional disorder. Everyone who saw Kaczynski came up with diagnoses of paranoid schizophrenia, noted Halleck.
Halleck said he felt that Kaczynski knew he was legally wrong-he wrote about wanting revenge and knowing people would come after him. However, even if his delusion happened to be true, even if technology was after him, he still wouldn't be justified in killing people, added Halleck. He did not see how a mens rea defense could be used.
Halleck said that the plea bargain was a good solution to the case. "As far as I'm concerned, things turned out marvelously," he said.
Deitz, another expert for the prosecution, had a similar reaction to the outcome. In examining Kaczynski's writings, he noted that the unabomber "writes lucidly, without evidence of thought disorder, about his knowledge about what he has done and the wrongfulness of his actions." Though there wasn't any hope of a successful insanity defense, Kaczynski's diagnosis and mental condition were important for sentencing, said Deitz. These he found to be schizotypal personality disorder and paranoid personality disorder. "I don't believe we are handicapped in diagnostic ability from having to rely on writings if the sample is sufficient. . . ," he said.
It was difficult, especially without an examination, to determine whether Kaczynski was deluded, said Deitz. There was no indication in his writings or from third party interviews. "Kaczynski's writings in the manifesto-his concerns about politics and technology-I believe were consistent with either political ideology." Should one find mental illness as the basis for those beliefs and associations, he added, "one could say those writings could spring from delusions, and that the central delusion is not revealed in manifesto."
"What I think is the most important feature of this case for our field is the extent to which we were saved from embarrassment," said Deitz. "Nonforensic psychiatrists and the public think it's bad enough when we argue about things we typically argue about, but in this case, had there been opposing testimony on whether Kaczynski's beliefs were political, or delusional, I think it would have exposed one of the issues in psychiatry about which all psychiatrists should be most embarrassed and that is that we haven't resolved how to deal conceptually with the fact that there are groups of people who hold beliefs that, if they were idiosyncratic and personalized, we would not hesitate to regard as delusional, but when they are shared by larger groups and take the forms we call religious belief or political belief we keep our hands off it. This case was going to put us right into that-not a good place for forensic psychiatrists to be."
In general, psychiatrists shouldn't overly scrutinize in deciding what kinds of cases like this to take because of how it will make them look. "Nonetheless, with this one there was relief that we weren't going to argue this point in a form so visible."
Defense attorney David Bruck, J.D., said the defense lawyers worked hard to avoid a demoralizing and disturbing spectacle of an unrepentant client who had fired them and then going into a trial in which these issues would have been aired. However, he said, "We believed the only real issue of the case was the death penalty." There was no delusion on the defense side that a defense based on mental defect could succeed, said Bruck, not because the defense felt there wasn't a mental defect, but because mental state defenses for extremely violent crimes don't usually work. If the jury heard the details of the crimes, Bruck noted, the members are not going to look calmly and dispassionately at complex issues of mental state.
On December 30, 1997, the Justice Department refused to eliminate the possibility of a death penalty for Kaczynski. Around that time his brother David was appearing on television shows and saying he did not, after turning his brother in, want to become his executioner. On January 12 federal prosecutors and defense attorneys were able to work out a plea bargain in which Kaczynski was sentenced to life in prison without parole.
The issue of the death penalty changes these cases in many ways, said Bruck. "The essential issue in a capital case is moral," he noted. "What is fair? This requires the jury to answer questions like, What did the world look like in this man's shoes? Did he live on a level playing field? Did he commit the crime on a level playing field with the rest of us? Is it fair to treat him just like us?
"Psychiatrists, more and more, are going to be asked to help answer these questions in a setting where not only is it extremely easy to get a lot of things wrong, but when the slightest issue of degree can be the difference between life and death," said Bruck.
"I think we are likely to see more and more a confusion of what were previously relatively simple and clear mental health issues that will now be intermixed with these extremely difficult and essential moral questions. . . . This is a cost of the recrudescence of the death penalty in this country."