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		Is Kaczynski crazy enough to be saved? EVEN THE DEFENSE ADMITS HE'S THE UNABOMBER. THE CHALLENGE IS TO TURN HIM INTO A HUMAN BEING. BY ROS DAVIDSON | Federal prosecutors say they will make alleged Unabomber Theodore Kaczynski's own admissions the cornerstone of their opening statement Monday in U.S. District Court in Sacramento. They say Kaczynski, 55, has acknowledged his involvement in at least three of the four attacks of which he is accused, which killed two people and injured two more during the almost two-decade-long Unabomb campaign of terror. The prosecution will also introduce evidence relating to 12 other bombings, not mentioned in the indictment, for which Kaczynski is also alleged to be responsible. With an apparently overwhelming amount of evidence against the former math teacher and his own refusal to be a party to an insanity defense, it is not clear what his defense will do. His attorneys reportedly sought a plea bargain that would have put Kaczynski in prison for life, but the Justice Department turned it down. Can Kaczynski avoid the death chamber? On the eve of opening arguments, Salon spoke with Peter Arenella, professor of law at UCLA, a former criminal trial attorney and an expert on mental disability defenses. Have any of the pre-trial events, ranging from jury selection to the failed plea bargain and back-and-forth on the alleged Unabomber's mental health made any difference to the trial itself? No, this is a case of the more things change, the more they remain the same. There has never been any doubt that the government would prove its case; it was about whether Kaczynski would be put to death. The defense wanted to use a diminished-capacity defense, not because they thought they could avoid a conviction, but to give the jury a preview of what they would argue during the sentencing phase -- that they can't execute a very ill individual, albeit a killer. By diminished capacity, you mean insanity? Kaczynski insists he is not insane. No. One of the things that's most confused both the public and the media is exactly what this diminished capacity defense means in criminal law. It's not an insanity defense, although that's how the media keeps interpreting it. An insanity defense is one where a defendant claims he can't be held morally or criminally responsible because he was so mentally ill at the time of the crime that he wasn't aware of what he was doing. That is not what Kaczynski's lawyers wanted to argue. They wanted to argue instead that because of his mental illness, he didn't entertain the criminal intent, the intent to kill. The question is not, "was he mentally ill?" The question is, did he have the requisite criminal intent? Based on the evidence, did he? He did! His own diaries show that he had the intent to kill. And his attorneys knew the argument would not be successful in terms of avoiding a guilty verdict. But they wanted to present evidence of Kaczynski's mental illness during the guilt phase anyway, to set the stage for the jury evaluation of the death penalty issue. Diminished capacity or insanity -- it's now moot because the psychiatric defense has just been dropped. How damaging will this be for Kaczynski, assuming there is a penalty phase? Not all that damaging, because evidence of Kaczynski's mental illness can still be presented at the death penalty phase. The government may argue that should Kaczynski continue to refuse access by government psychiatrists, his lawyers should be barred at the penalty phase from using any psychiatric testimony. But I think it's highly unlikely when life and death is in the balance that the trial judge will accept that argument. So, we'll be hearing a lot of expert testimony about mental health. Should Kaczynski's competence to stand trial be an issue? There is a legal issue as to whether any mentally ill client is legally competent to stand trial. But the test is quite minimal. As long as the person is rational, capable of communicating rationally with his lawyers, regardless of the fact that he's mentally ill, he'll be found able to stand trial. Under the test, Mr. Kaczynski is clearly competent to stand trial. And it's a particular problem for his lawyers, because here you have Kaczynski basically wanting to feign sanity -- whereas he's quite crazy -- because he doesn't want his supposed political motivation for his crimes to be undermined by some mental disability defense. The main reason why the defense is saying they're not going to be presenting any psychiatric experts in the first phase of the trial is probably because Kaczynski didn't want them to! - - - - - - - - - - - - - - - - N E X T+P A G E+| What will the defense be?