Alleged Unabomber Puts Psychiatry on Trial

For 17 years, claim federal prosecutors, Theodore Kaczynski terrorized the nation with a string of 16 bombings that killed three people and injured 23 more. On trial now for his life, the alleged Unabomber's case will most likely hinge on the expert testimony proffered by a covey of psychiatrists and psychologists scheduled to be called as witnesses as the case unfolds in U.S. District Court in Sacramento, Calif. this month.

As this issue of Psychiatric Times went to press, however, Judge Garland E. Burrell Jr. had yet to rule on a prosecution motion to exclude all psychiatric testimony because Kaczynski has refused to submit to an examination by the government's experts. A possible compromise-one already indicated by the judge in comments from the bench-would allow testimony by experts who based their opinions solely on factors other than personal examinations of the defendant, thereby leveling the playing field for both the prosecution and the defense.

If this occurs, jurors will be subjected to conflicting testimony from psychiatrists and psychologists concerning Kaczynski's mental state; testimony derived from evaluations of his writing, historical social and medical data, and from interviews with family members and acquaintances. Even the stark, 10-by-12 foot shack in which Kaczynski lived for decades will become a crucial piece of evidence, the crude structure a symbol, according to his defense attorneys, of their client's functional deficiency.

The Sacramento trial will only be the first of several legal proceedings Kaczynski will face over the next several years-barring a rumored plea bargain that would send the alleged Unabomber to prison for life in exchange for a guilty plea. If convicted in the initial phase of the current trial, a second penalty phase will determine whether Kaczynski should face execution. The 10-count indictment charges him with two murders and two maimings that occurred during four bombings between 1985 and 1995. In a separate New Jersey case, Kaczynski faces additional charges for the 1994 murder of an advertising executive. The Unabomber's devices have allegedly injured 21 other people between the years 1978 and 1995.

At every step of the way, what happens to Kaczynski will most likely depend on how judges and jurors view the expert testimony-and in high profile cases like this one, the media's depiction of what psychiatrists and psychologists say-and that means that the profession of psychiatry will most likely come under blistering scrutiny.

Thomas Gutheil, M.D., professor of psychiatry at Harvard Medical School and codirector of the program for psychiatry and the law at the Massachusetts Mental Health Center, says keeping the media from trivializing or distorting what forensic psychiatrists say in court is "hopeless."

"Nothing overcomes deep running prejudice," Gutheil told Psychiatric Times.

All of the psychiatrists interviewed for this article said that their comments were not based on an evaluation of Kaczynski, but were meant only as general comments about the role of mental health experts in the criminal justice system.

Gutheil said the public has a tendency to see a defendant sitting quietly in a courtroom and then to draw conclusions about what his mental state was at the time of the crime. "That's not comparing just apples and oranges, that's apples and kumquats."

Gutheil said that getting the media to accurately report the requirements of a mental defect or disease defense is a struggle. "Every time there is a high profile insanity case I go on the air locally here in Boston, and 16 newspeople want to interview me again about the damn insanity defense," he said. "We do it again, and we do it again, and it's the same problem every time. People simply will not accept it."

The key point he tries to make as quickly as possible during interviews is that psychiatric testimony is about meeting the legal criteria for an insanity-related defense-not about mental illness. "This whole notion of intentionality and awareness are highly subtle points," Gutheil said, acknowledging that the public has difficulty accepting that experts may justifiably differ on this assessment. As a result, when there is disagreement, it's not uncommon for jurors and the viewing public to "invalidate" psychiatric testimony.

Thus far, Kaczynski's lawyers have indicated that they want to present evidence showing that Kaczynski-allegedly suffering from paranoid schizophrenia-could not have formed the requisite intent to commit the crimes with which he is charged. This "mental defect" defense is a substantially different strategy from a "not guilty by reason of insanity" plea, and one that may be easier to sell to a jury inundated with the mounds of evidence the prosecution promises to present pointing to Kaczynski's guilt. Under federal law, defense lawyers urging a not guilty by reason of insanity defense would have to prove by clear and convincing evidence that a mental disease or defect rendered the defendant unable to appreciate that what he did was wrong. The mental defect defense merely attacks the prosecution's contention that the defendant had the requisite intent to commit the crimes.

J. Richard Ciccone, M.D., professor of psychiatry at the University of Rochester Medical Center, and chair of the American Psychiatric Association Commission on Judicial Action, agreed that the disagreements between psychiatric experts get played out publicly, but added that it is because the only cases that ever get to trial are the ones where experts disagree. As a result, no one ever has a chance to see the many cases that either never get to trial or never include an insanity defense, because the experts concur regarding whether a defendant's mental state meets the legal criteria.

"If, in the media sound bite, psychiatric testimony gets blown out of proportion, or misstated, misquoted or mischaracterized, we are at that risk," Ciccone said. "It's part of having an open society and having a press that is free. What we should do as psychiatrists is not be defensive about our testimony and be willing to participate in this discussion so that we can inform people about why we are holding certain views as psychiatrists."

Renee Leslie Binder, M.D., professor of psychiatry at the Langley Porter Psychiatric Institute, University of California, San Francisco and president of the American Academy of Psychiatry and the Law, said that "the public does not understand the role of psychiatry in these criminal cases...just because someone is killed, the crimes may be very different and the penalties may be very different."

She added that there is now greater scrutiny over ethical violations committed by forensic psychiatrists, and that the development of standards of conduct and subsequent voluntary peer review of testimony are helping to assure quality. Binder said that the criminal process itself winnows the less competent experts from the field over time, as the ability to maintain data on testifiers improves.

The chilling details of the bombings allegedly contained in Kaczynski's journals have caused attorneys in the case and commentators to argue over whether the statements represent symptoms of illness or the machinations of a cruel and calculating murderer. None of the psychiatrists interviewed for this article, however, felt that the Unabomber or any other case requiring psychiatric testimony should become bogged down in a philosophical debate over where to draw the line between illness and evil. Rather, those interviewed insisted that all experts should limit their testimony to their best medical judgment within the context of the legal criteria surrounding the crime and any defenses raised.