A testy federal judge denied Unabomber suspect Theodore Kaczynski’s 11th-hour request to fire his lawyers Wednesday and hire a flamboyant San Francisco attorney who had promised to represent him for free without using a mental-defect defense.
U.S. District Judge Garland Burrell Jr., seemingly out of patience, said that Quin Denvir and Judy Clarke, who have represented Kaczynski for the past 18 months, would not only remain on the case but were in charge of making decisions about how the case should be presented.
The ruling thwarted Kaczynski’s attempt to take over his defense and put it in the hands of J. Anthony Serra, an attorney who is well-known for presenting political defenses.
“The defense is controlled by his counsel,” Burrell snapped during a 90-minute hearing in open court late Wednesday afternoon. “I think the offer (by Serra) is untimely. We are all ready to proceed with the trial. … The motion is denied.”
Burrell’s ruling, after three days of closed-door meetings, also paved the way for jurors to be sworn in on Thursday and the presentation of opening statements by the prosecution and defense.
Last week, as a result of discussions with Burrell, Denvir and Clarke withdrew their notice of intent to present evidence of Kaczynski’s diminished mental capacity during the guilt phase of the trial, but did file notice of intent to use such testimony during a death penalty hearing if their client were convicted.
The defense has said that Kaczynski is schizophrenic, but the defendant has denied he is mentally ill and has refused to be tested by government mental health professionals, a requirement that the judge has said must be fulfilled before any expert medical testimony can be given during the penalty phase.
By ruling that Denvir and Clarke are in charge of the defense, Burrell rejected arguments by prosecutors that federal court decisions have upheld the position “that the decision to forego a legally available defense (such as mental incapacity) rests with the defendant” and not the lawyers.
In another ruling, Burrell said he would allow the defense to present evidence of a mental defect through non-expert testimony - for example, from people who observed Kaczynski during the years he lived as a hermit in the remote cabin in Montana where he allegedly manufactured bombs.
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