U.S. v. Kaczynski
Trial Transcripts
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3542
1 SACRAMENTO, CALIFORNIA
2 MONDAY, JANUARY 5, 1998, 8:02 A.M.
3 -- oOo --
4 THE DEFENDANT: Your Honor, before these proceedings
5 begin, I would like to revisit the issue of my relations with
6 my attorneys. It's very important. I haven't stood up
7 because I am under orders from the marshals not to stand up.
8 (Pause in the proceeding.)
9 THE COURT: I want to talk to the marshal.
10 (Discussion off the record between the Court and a
11 marshal.)
12 THE COURT: Since my courtroom is full of people, my
13 inclination is to invite the defense side to my chambers with
14 the reporter.
15 Government?
16 MR. CLEARY: Can I have one minute, Your Honor?
17 THE COURT: Yes.
18 (Discussion off the record among the Government's
19 counsel.)
20 MR. CLEARY: No objection, Your Honor.
21 (An ex parte and in camera discussion, consisting of
22 pages 3543-3602, was held and reported under seal by order of
23 the Court.)
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25
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3603
1 SACRAMENTO, CALIFORNIA
2 MONDAY, JANUARY 5, 1997
3 -- oOo --
4 (Open court.)
5 THE CLERK: Court is now in session.
6 Criminal S-96-259, United States versus
7 Theodore Kaczynski.
8 THE COURT: Please state your appearances for
9 the record.
10 MR. CLEARY: Robert Cleary, Steven Lapham and
11 Stephen Freccero for the government.
12 MR. DENVIR: Quin Denvir, Judy Clarke and
13 Gary Sowards for Mr. Kaczynski, Your Honor.
14 THE COURT: Thank you. As you know, the trial
15 in this matter was scheduled to commence this
16 morning at 8:00 a.m. But in lieu of the trial
17 commencing, I conducted proceedings ex parte and in
18 camera, which have not been completed. We hope that
19 those proceedings will be completed or resolved by
20 Wednesday morning.
21 There's a possibility that the proceedings
22 will not be resolved by Wednesday morning and that
23 the Court would have to conduct other types of
24 proceedings. So I thought I should take the bench
25 and explain the status of the matter and get input
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3604
1 from the government.
2 But let me say something before the government
3 provides input. I realize the government is
4 prepared to go forth with witnesses, and you have
5 made arrangements. We could proceed as though the
6 trial is to commence on Wednesday with the
7 understanding that there's a possibility that it
8 won't commence on Wednesday. Or we could proceed
9 with the understanding that it will commence on
10 Thursday.
11 If we proceed in that vein, the trial should
12 commence on Thursday. Otherwise, we will be
13 involved in other types of procedures.
14 Have I said anything that causes the defense
15 to want to respond before I get the Government's
16 input?
17 MR. DENVIR: No, Your Honor.
18 MR. CLEARY: Your Honor wants input from the
19 government as to whether we would prefer to schedule
20 for Wednesday or if we would rather schedule for
21 Thursday, is that the question?
22 THE COURT: That is the question. I think
23 that the government perhaps understands the problem.
24 MR. CLEARY: We do, Your Honor.
25 THE COURT: All right.
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3605
1 MR. CLEARY: If I can have one minute to
2 consult with some people in the courtroom?
3 THE COURT: That would be fine.
4 (Informal recess.)
5 MR. CLEARY: Thank you, Your Honor. From the
6 Government's perspective, given that we have flown
7 witnesses here from the East Coast, it creates some
8 scheduling difficulties for us, as I think you can
9 appreciate.
10 If I could suggest this. The government would
11 be prepared to proceed on either Wednesday or
12 Thursday, at the Court's convenience, with the
13 understanding that for the convenience of witnesses
14 who traveled a great distance, that after a handful
15 of witnesses, probably seven or eight or nine
16 witnesses, somewhere in there, we might not be able
17 to pick up again until the following Monday, until a
18 week from today.
19 Would that be acceptable to the Court?
20 THE COURT: How about the defense?
21 MR. DENVIR: That's certainly acceptable,
22 Your Honor.
23 THE COURT: Should I have my staff communicate
24 with the jurors to ascertain whether the jurors are
25 available for a longer trial day? If the jurors are
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3606
1 available for a longer trial day, then we can extend
2 the trial day.
3 I recognize that during voir dire I promised
4 the jurors that they would only be in trial until
5 1:00 o'clock daily. However, since they won't be in
6 trial for a couple of days, maybe there won't be any
7 objection to a longer trial day, at least for
8 Wednesday and Thursday, or if it turned out to be
9 Thursday, then Thursday and Friday.
10 Is that a viable option?
11 MR. CLEARY: That would be fine with the
12 government, Judge. We'll do, obviously, whatever
13 you want on that. My only concerns about that are
14 twofold.
15 One, during the voir dire, we did ask a number
16 of jurors about job problems that they may have.
17 I'm not sure if those jurors are now in the pool,
18 but there were some who were planning on going to
19 work. So we want to find that out, number one.
20 In my own view, for whatever it's worth, I
21 think it would be good to give the jurors a very,
22 very set schedule. Try to start them at 8:00
23 o'clock each day and finish at 1:00 o'clock. I'm
24 concerned a little bit if we start telling them that
25 for a few days we'll be going a little later. They
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3607
1 may get the wrong message of what's going on here.
2 But that's our concern. Whatever the Court
3 wants to do is fine.
4 THE COURT: Well, it wasn't a question as to
5 what I wanted to do. I was only suggesting an
6 alternative. But if you are not in favor of that
7 alternative, I won't pursue it, because it is clear
8 that I did make a promise to the jurors that we
9 would be out of here by 1:00 o'clock daily. If that
10 indicates to you that perhaps I shouldn't approach
11 the jurors, I won't.
12 MR. CLEARY: I think it would be best not to
13 approach them, Your Honor.
14 THE COURT: Okay. Anything further to cover
15 then?
16 MR. CLEARY: Just one request. From the
17 Government's perspective, Your Honor, we seem to be
18 in the same position or an analogous position to
19 where we were a week or so ago with ex parte
20 conferences going on. I would ask the Court again
21 to keep our request in mind as you decide what
22 portions if any of the ex parte conference
23 transcripts to disclose to the government.
24 To emphasize, as we said before, our interest
25 is not in getting or obtaining any attorney-client
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3608
1 communications or seeing any sort of strategy
2 sessions that went on in chambers. But we do have a
3 very real and a very serious interest in protecting
4 the record in this case for appeal, and also to
5 discharge our obligation to advise the Court as to
6 what steps the Court should take, which may include
7 advice from the Government that the Court needs to
8 question the defendant personally, and we may be
9 able to suggest some questions that you should pose
10 to the defendant or his counsel.
11 I only state that so the Court will keep that
12 in mind as you decide which portion if any to
13 disclose to us.
14 Thank you.
15 THE COURT: I am aware of the Government's
16 interest, and I understand it. But should the
17 Government have questions it believes the Court
18 should present to the defendant, I think you should
19 present those questions to me.
20 MR. CLEARY: We will, Your Honor. I think it
21 preferable to do it in writing, is that correct?
22 THE COURT: Right.
23 MR. CLEARY: In order to guide what our
24 suggestions are -- and I don't want to tread where
25 I'm not wanted, but can I ask a couple of questions
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
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1 about what has happened in chambers over the last
2 few hours?
3 THE COURT: Did you just ask a question?
4 MR. CLEARY: Well, was it about the scope of
5 the defendant's concern with the representation by
6 his counsel?
7 THE COURT: I am going to let the defense
8 respond to your questions.
9 MR. DENVIR: Your Honor, we don't think it
10 would be inappropriate for the Court to answer those
11 questions or for us to go any further than we
12 already have.
13 If the government feels that they have
14 questions that would be helpful to the Court, they
15 certainly can look at the record up to now and the
16 record today and frame any questions and submit them
17 to the Court. But we feel what was discussed,
18 attorney-client matters, the Court has previously
19 treated ex parte and confidential and should stay
20 that way.
21 MR. CLEARY: It does make it a little
22 difficult to advise the Court. Let me ask this. Is
23 the discussion that happened today consistent with
24 what the Court has previously disclosed vis-a-vis
25 the prior ex parte conferences?
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3610
1 MR. DENVIR: We would answer that, Your
2 Honor. It is consistent with the previous
3 proceedings, we believe.
4 MR. CLEARY: That may give us a basis to
5 provide some additional guidance to the Court, and
6 we'll try to do that as soon as possible.
7 THE COURT: Based upon everything that has
8 been stated, it is my impression that the Government
9 desires the Court to have the jury here for the
10 commencement of trial at 8:00 a.m. on Wednesday.
11 MR. CLEARY: If I may have one minute, Your
12 Honor?
13 THE COURT: Yes.
14 MR. CLEARY: Your Honor, that is our request.
15 However, just so the Court knows, for planning
16 purposes, it's going to be the Government's request
17 that this issue that has been discussed ex parte get
18 firmly and finally resolved before this jury gets
19 sworn.
20 Understanding that, and if the Court agrees
21 with the Government's view, maybe it would be better
22 to put it over until Thursday to give the Court and
23 counsel and the Government a chance to resolve this
24 with finality, if that's possible.
25 THE COURT: Defendant's response.
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3611
1 MR. DENVIR: We would agree with that, Your
2 Honor.
3 THE COURT: As I understand the Government's
4 position, the Government is asking that I wait until
5 Thursday to bring the jury into the courtroom, and
6 that on or before Wednesday, some type of assurance
7 be provided to the Government that allows the
8 Government to know that whatever issues have been
9 resolved in the ex parte in camera communications
10 are firmly and finally resolved.
11 MR. CLEARY: That's correct, for both phases
12 of the trial, Your Honor.
13 THE COURT: Any response by the defense?
14 MR. DENVIR: No.
15 THE COURT: I will do the best I can. A
16 criminal proceeding sometimes involves dynamics that
17 a judge has to respond to. You do your best to make
18 a decision that you think is right in the moment
19 given the circumstances, and you hope that is a
20 correct decision.
21 So I am a little concerned about your choice
22 of words, but I understand your position about
23 firmly and finally resolving something. But I will
24 do my best to apprise the government and the public,
25 to the extent I believe I can do so, of what the
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3612
1 issues are, and then try to get the Government's
2 input as to whether the Government is satisfied as
3 to the resolution of those positions.
4 I think that's about all we should cover. If
5 there's nothing further to cover, I'm going to
6 adjourn.
7 MS. CLARKE: Thank you, Your Honor.
8 MR. DENVIR: Thank you, Your Honor.
9 MR. CLEARY: If I could ask. There is a bunch
10 of legal issues that still need to be resolved. Do
11 you want to resolve those now or wait until sometime
12 prior to Thursday to resolve them? They have to do
13 with various statements. We discussed this with the
14 Court last week.
15 THE COURT: I am aware of the legal issues.
16 Let me get the defense's input.
17 MR. DENVIR: I think that given the nature of
18 the problems, we ought to wait on that to see where
19 we are. Meanwhile, I do intend to talk to the
20 Government about the statements question. We may
21 have a solution to part of that.
22 THE COURT: You heard what Mr. Denvir said.
23 MR. CLEARY: I did, Your Honor.
24 THE COURT: What is your response?
25 MR. CLEARY: Well, I can only tell you that
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3613
1 the Government was prepared last week to argue this,
2 we are prepared today to argue it. I can't really
3 respond very well given that there was a reference
4 to what's happened ex parte, so I really don't know
5 how the respond. We leave it up to you, Your Honor.
6 THE COURT: I am prepared to decide, but I'm
7 going to wait and get input from the parties before
8 I render a decision. And in view of what the
9 defense just stated, I think we'll wait until
10 Thursday morning. I am willing to come in earlier,
11 though. Maybe we should consider that.
12 Let me talk to the marshal.
13 (Short discussion off the record.)
14 MR. CLEARY: May I make a suggestion, Your
15 Honor?
16 THE COURT: Yes.
17 MR. CLEARY: Since these issues relate in most
18 instances to what the Government's going to be able
19 to open on and what the defense is going to be able
20 to open on, if it's at all possible with your
21 schedule, could we come in and have the argument on
22 Wednesday so we will have at least overnight to
23 change our prospective openings if the Court rules
24 in a way that will require us to change our opening,
25 rather than doing it first thing in the morning and
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
3614
1 have to get right up and start opening to the jury?
2 THE COURT: Let me get the defense's input on
3 that.
4 MR. DENVIR: Your Honor, if the Court wants to
5 hear it late on Wednesday, we can do it Wednesday
6 afternoon. We can see where we are at that point.
7 THE COURT: Is 1:00 o'clock late enough?
8 MR. CLEARY: Fine for the Government.
9 MR. DENVIR: We were thinking more about 4:00
10 o'clock to be sure we have all these matters
11 resolved. I don't think it's going to be a lengthy
12 argument.
13 THE COURT: 4:00 o'clock.
14 MR. CLEARY: Fine with the Government, Your
15 Honor.
16 THE COURT: Okay. 4:00 o'clock Wednesday.
17 MR. DENVIR: Thank you, Your Honor.
18 MR. CLEARY: Thank you, Your Honor.
19 ---oOo---
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25
DENNIS F. McKINNON, CSR No. 2223 -- (916) 446-1347
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
3 -- oOo --
4 BEFORE THE HONORABLE GARLAND E. BURRELL, JR., JUDGE
5 -- oOo --
6
7 UNITED STATES OF AMERICA, )
)
8 Plaintiff, )
)
9 vs. ) No. Cr. S-96-259 GEB
)
10 THEODORE JOHN KACZYNSKI, )
)
11 Defendant. )
______________________________)
12
13
14
15 -- oOo --
16 REPORTERS' DAILY TRANSCRIPT
17 JURY TRIAL
18 VOLUME 22, pp. 3542-3614
19 MONDAY, JANUARY 5, 1998
20 -- oOo --
21
22 Reported by: SUSAN VAUGHAN, CSR No. 9673
23 KELLY O'HALLORAN, CSR No. 6660
24 DENNIS McKINNON, CSR No. 2223
25
KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347
1 A P P E A R A N C E S
2
For Plaintiff UNITED STATES OF AMERICA:
3
OFFICE OF THE U.S. ATTORNEY
4 650 Capitol Mall
Sacramento, CA 95814
5 BY: ROBERT J. CLEARY
STEPHEN P. FRECCERO
6 R. STEVEN LAPHAM
Special Attorneys to the
7 United States Attorney General
8 For the Defendant:
9 OFFICE OF THE FEDERAL DEFENDER
801 "K" Street, Suite 1024
10 Sacramento, CA 95814
By: QUIN A. DENVIR
11 Federal Defender, Eastern District of California
JUDY CLARKE
12 Executive Director, Federal Defenders of
Eastern Washington and Idaho
13
STERNBERG, SOWARDS & LAURENCE
14 604 Mission St., 9th floor
San Francisco, CA 94105
15 BY: GARY D. SOWARDS
16
Also Present: TERRY TURCHIE, Assistant Special Agent,
17 F.B.I. Unabom Task Force
ROBERT ROLFSEN, JR., Special Agent, F.B.I.
18
19
20 -- oOo --
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25
KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347
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