Both Sides Clear Kaczynski For Self-Defense Prosecution, Defense Say It’s His Constitutional Right; Judge To Rule Today, The Planned Start Of Tangled Unabomber Trial

A day after the judge in the Unabomber trial suggested that he might bar Theodore Kaczynski from representing himself, prosecutors and defense lawyers said Wednesday that Kaczynski appeared to have a constitutional right to handle his own case.

The latest odd turn in a case that has been packed with odd turns came the day before Kaczynski’s delayed trial was again scheduled to begin. Barring a last-minute plea bargain, the judge, Garland Burrell Jr., is to make a final decision on today on who is to handle Kaczynski’s case, and how it will be handled, in a hearing that is to be held with the jury standing by in court.

On Tuesday, Burrell suggested that Kaczynski might have asked to represent himself too late or simply to delay his trial. But in briefs filed Wednesday, neither side gave the judge legal support for those assertions.

“As the government understands the sequence of events in this case,” the prosecutors said, “we cannot say that the defendant’s assertion of his right to represent himself was untimely or for purposes of delay.”

The issue is critical because courts have said the Sixth Amendment guarantees defendants the right to handle their own cases as long as they understand the risks. If an appeals court were later to rule that Burrell incorrectly barred Kaczynski from exercising that right, a conviction could be overturned.

In their filing, the defense lawyers also said Kaczynski was clearly not trying to delay the trial. He said he was ready to proceed immediately when he first asked publicly to defend himself on Jan. 8. “He has not wavered in this request” since then, the defense lawyers said.

Kaczynski is charged here with four bombings that resulted in two deaths. Prosecutors say those attacks were part of a campaign that resulted in a total of three deaths and 28 injuries over a period of nearly two decades.

Legal experts said Wednesday that the filings by both sides would make it more difficult for Burrell to stand by the position he outlined in court on Tuesday that seemed to suggest the trial would proceed with the current defense team.

Kaczynski has been struggling with his two public defenders, Quin Denvir and Judy Clarke, over their plan to portray him as mentally ill in an effort to avoid the death penalty.

But some experts said the judge could still bar Kaczynski from handling his own case.

James Cohen, who teaches criminal law and legal ethics at Fordham University School of Law, said Burrell might well be correct under the law that, in a complex case with thousands of documents, Kaczynski might have expressed a desire to represent himself too late.

Cohen said that despite Kaczynski’s statement that he was ready to proceed, a judge could find that he was not realistically capable of beginning a trial immediately with no preparation.

“It’s not fair to him, and it’s not fair to the system,” the professor said.