U.S. v. Kaczynski
Trial Transcripts
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3678
1 SACRAMENTO, CALIFORNIA
2 THURSDAY, JANUARY 8, 1998, 8:04 A.M.
3 -- oOo --
4 THE CLERK: Calling criminal case S-96-259,
5 United States vs. Theodore Kaczynski.
6 THE COURT: Please state your appearances for the
7 record.
8 MR. CLEARY: Robert Cleary, Steven Lapham and
9 Stephen Freccero for the Government, Your Honor.
10 MR. DENVIR: Quin Denvir, Judy Clarke, Gary Sowards for
11 Mr. Kaczynski, who's present in Court.
12 THE COURT: Thank you.
13 I have a communication that I'm thinking about giving to
14 the jury. I'd like you to approach the bench so I can see if
15 you have any objection to it. We're going to do it right here
16 (indicating) next to my court reporter.
17 (The following discussion was had at the bench outside
18 the hearing of the jury.)
19 THE COURT: Let me put it there. You can read it.
20 (Counsel examine document.)
21 MS. CLARKE: It's good.
22 THE COURT: Oh, the first page is okay?
23 MS. CLARKE: There's more?
24 THE COURT: There's more.
25 (Counsel examine document.)
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1 THE COURT: Is that acceptable?
2 MS. CLARKE: Yes, it is.
3 MR. DENVIR: Yes, Your Honor.
4 THE COURT: All right, then. Thank you.
5 MR. DENVIR: You do know there is something we want to
6 address with you?
7 THE COURT: You want to do it now? We can do it in open
8 court?
9 MR. DENVIR: Sure.
10 (The proceeding resumed as follows in the hearing of the
11 jury.)
12 THE COURT: Before we can proceed with the matter you
13 said that you wanted to address, Mr. Denvir, I need to tell
14 the parties that we are missing a juror. I've been advised
15 that juror number 203 has reported that he is sick in bed and
16 will go to a doctor's office later today. So at some point we
17 will have to decide to handle that situation.
18 I'm now ready to hear what Mr. Denvir wants to talk
19 about.
20 MS. CLARKE: Your Honor, if I may address the Court,
21 Mr. Kaczynski had a request that we alert the Court to, on his
22 behalf -- it is his request that he be permitted to proceed in
23 this case as his own counsel. This is a very difficult
24 position for him. He believes that he has no choice but to go
25 forward as his own lawyer. It is a very heartfelt reaction, I
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1 believe, to the presentation of a mental illness defense, a
2 situation in which he simply cannot endure. So it is his
3 request that the Court permit him to proceed on his own
4 behalf.
5 THE COURT: I understand the request. I am pleased to
6 see that it was made through you, through counsel, because it
7 is appropriate for such requests to be made through counsel
8 when counsel is appointed to represent a criminal defendant.
9 As a matter of courtroom decorum, that is how a criminal
10 defendant should communicate with the Court when a criminal
11 defendant is represented by counsel. I assume that you just
12 wanted to make the request to provide the Court with it so
13 that I can then evaluate what we should do.
14 MS. CLARKE: That is correct, Your Honor. Mr. Kaczynski
15 can speak with the Court. He has asked that we make the
16 request on his behalf.
17 THE COURT: All right. Thank you.
18 Not yet. I first want to see what the Government's
19 position is.
20 MR. CLEARY: Your Honor, I think at this point, given
21 the history of what we've gone through with the complaints,
22 the defendant's complaints about his representation and his
23 current request today, the Government would seek a brief
24 adjournment for us to caucus and decide, as best we can, how
25 to advise the Court and what the Government's position should
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1 be in this. We look at this -- and I think the Court knows
2 this from our conversation yesterday -- we look at this as a
3 very, very serious matter, and I would hate to rush in and
4 take a position at this point and then regret that decision at
5 a later date.
6 So respectfully, and I understand that we've got jurors
7 pulled in again today; we have a lot of people who are here
8 waiting for this trial to begin, but with all due respect I
9 think under the circumstances the Government is constrained to
10 ask for a brief adjournment to consider the situation.
11 THE COURT: What do you consider a brief adjournment?
12 MR. DENVIR: Till tomorrow. Tomorrow morning.
13 THE COURT: Well, that's too long. I'm not going to
14 grant that.
15 MR. DENVIR: Okay. Could you give us two hours, till
16 10:00 o'clock today?
17 THE COURT: I'm not granting that.
18 MR. DENVIR: Could you give us one hour?
19 THE COURT: That's too long also.
20 MR. DENVIR: How much time would the Court grant us?
21 THE COURT: Until 8:30.
22 MR. DENVIR: Thank you. Fair enough.
23 THE COURT: But I'm not finished. I want to get the
24 defense's response to it. And then plus I want to talk to the
25 parties about the jurors, because this time I want to
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1 communicate with the jurors in some fashion.
2 MS. CLARKE: Your Honor, Mr. Kaczynski has advised us he
3 is prepared to proceed in pro se today. His request to
4 proceed on his own behalf would not delay the proceedings.
5 THE COURT: I have a concern about the timeliness of the
6 request. In my opinion, trial proceedings in this case
7 commenced November 12th, 1997, with a very lengthy jury
8 selection process. That process concluded on December 22nd,
9 1997 when the parties exercised their peremptory challenges.
10 Other trial proceedings continued, even after the
11 parties exercised their peremptory challenges. Pursuant to
12 the parties' stipulation, the Court was authorized to replace
13 those jurors selected with certain jurors that remained in the
14 pool, and we had to, in fact, do that because we lost jurors.
15 The very fact that we lost jurors indicates to me that unless
16 this trial commences, we may be in a position where we have to
17 start the jury selection process all over again. And that
18 makes no sense under our justice system. And so the timing of
19 it is quite disturbing.
20 There are some cases that I can bring to the parties'
21 attention which should expedite your consideration of the
22 issue: United States vs. Smith, 780 F.2d 810 (9th Cir. 1986);
23 a key case, Fritz, United States vs. Fritz, 682 F.2d, 782
24 (1982); Moore vs. Calderon, 108 F.3d 261 (1997).
25 How about the jurors? My inclination would be to call
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1 the jurors into the courtroom and advise them along the lines
2 of what I shared earlier so that they understand that we are
3 mindful of those things they have on their minds about being
4 meaningful participants in the process, and they may feel at
5 this moment that they are not meaningful participants in the
6 process. And then I will probably add to what I shared with
7 you something to the effect that, because of constitutional
8 concerns, we will experience another delay, but this will be
9 hopefully a briefer delay than the one they experienced
10 previously. Is that acceptable?
11 MR. CLEARY: It is to the Government, Your Honor.
12 MS. CLARKE: It is, Your Honor. I only ask for the
13 Court's consideration in thinking about the timing issue, that
14 it is not Mr. Kaczynski's request that anything be delayed or
15 this jury be interfered with. He is prepared in the sense
16 that he feels he has no choice to go forward today. He is not
17 asking for any delay. I know that the timing is a question
18 when a delay is involved. But that is not his position. His
19 position is he will go forward on his own behalf as soon as
20 the jury is sworn. He is prepared. He is not asking, as the
21 Government is, for any delay.
22 THE COURT: Well, that raises another question. And we
23 need to cover all questions before we adjourn for any
24 consideration of the issue. That raises a competency
25 question. Was the Government going to consider that in the
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1 caucus it referenced?
2 MR. CLEARY: That's correct, Your Honor.
3 THE COURT: Then you do need more time.
4 MR. CLEARY: I think it's a difficult problem, Your
5 Honor. I understand you want to get up and running. We'll
6 take whatever time the Court would allow us.
7 THE COURT: When I was putting rather tight time
8 constraints on you, I only bore in mind the Faretta issue.
9 But the other issue may involve more analysis.
10 MR. CLEARY: I'm sorry. I should have mentioned that to
11 the Court at the time.
12 THE COURT: Well, is there anything else that I should
13 know that you don't? I mean, you asked for two days. Why did
14 you ask for that much time? What other type of issues were
15 you thinking about? Maybe I don't know all the issues.
16 MR. CLEARY: Your Honor, first of all, I was only asking
17 for a single day's adjournment. I'm not arguing that --
18 THE COURT: I don't want to talk about time; I want to
19 talk about issues. What issues are you considering?
20 MR. CLEARY: I understand.
21 It was the Faretta issue, the competency issue, and the
22 question of whether new counsel should be brought in -- it's
23 all related, whether new counsel should be brought in, whether
24 current counsel should remain as standby counsel, whether
25 there are other people at the public defender's office who
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1 might be familiar with the case who might replace current lead
2 counsel, and the question of what, if anything, we could do to
3 get meaningful access to some of -- some more of the ex parte
4 proceedings to help us in this analysis over the issues.
5 THE COURT: It's my decision whether I appoint a standby
6 counsel. I have the discretion to do that, and I can decide
7 that issue. And I really don't need your input on that, so
8 you can forget research on that question.
9 I want you to elaborate on your concern about new --
10 well, let me back up. You mentioned other counsel coming in
11 from the public defender's office, the federal defender's
12 office. That's unnecessary. I mean, Mr. Kaczynski at the
13 present time has what I consider to be nationally renowned
14 criminal defense lawyers who understand this area of the law
15 fully, and I can't imagine another lawyer from that office
16 providing him with a more comprehensive defense than he's
17 going to be provided by present counsel.
18 The crux of the question doesn't deal with what counsel
19 is brought in. The issue centers on the assertion of a
20 particular defense. In my opinion, any lawyer you bring in --
21 almost any lawyer -- that you bring in will assert the same
22 defense that present counsel is asserting. And so appointing
23 another lawyer is not the solution. I do not see that as a
24 feasible solution. And I thought we discussed the question of
25 new counsel yesterday, and so I'm not clear what the
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1 Government's referencing by "new counsel."
2 MR. CLEARY: What I understand, Your Honor, is there
3 appears to be -- there is, Your Honor, a major dispute between
4 these lawyers and the client as to who's going to be choosing
5 the defense. There may be other lawyers that take a different
6 view, that take the view that it's the client's position to
7 direct the defense. There may be a substantial number of
8 lawyers that take that view, and the lawyer we discussed
9 yesterday apparently takes that view. That's the only reason
10 I raise the issue, that other lawyers may be willing to come
11 in and put forth whatever defense the defendant wants and
12 avoid putting forward whatever defenses defendant wants.
13 THE COURT: We've already dealt with that issue. And so
14 that should save you some time on analysis.
15 (Discussion off the record among Government counsel.)
16 THE COURT: I'm pausing because you're caucusing. Let
17 me know when you're done.
18 MR. CLEARY: Thank you, Your Honor.
19 (Discussion off the record among Government counsel.)
20 THE COURT: Let me interrupt you. There is an issue
21 that you haven't identified that also involves a matter I have
22 discretion on. Hybrid representation. I think it's hybrid
23 representation.
24 You can go ahead and caucus.
25 MR. CLEARY: Oh, okay. Thank you. I'm sorry.
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1 THE COURT: All right.
2 (Discussion off the record among Government counsel.)
3 MR. CLEARY: Your Honor, I think I've identified the
4 issues that -- and I know the Court said there are certain
5 issues we don't need to worry about, but the remaining issues
6 that we've identified are things I believe we have to deal
7 with: the Faretta issue and the competency issue.
8 Competency, as I see it, is possibly two different
9 questions: the defendant's competency to be tried; and his
10 competency to represent himself. And I'm not sure, as I stand
11 here, whether that's a single question or if there are two
12 different questions.
13 And there is a question relating to all of this as to
14 the timeliness. We don't know -- we're not in a position to
15 know when the defendant tried to raise -- when, if at all, he
16 tried to raise this issue prior to this time.
17 THE COURT: "This issue" referencing
18 self-representation?
19 MR. CLEARY: Self-representation, Your Honor; that's
20 right.
21 THE COURT: The defendant told me yesterday that he was
22 not interested in self-representation, that he wanted to be
23 represented by counsel, because I asked him that question so
24 that answers your question.
25 MR. CLEARY: So I think we've covered the waterfront of
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1 the issues, at least that the Government standing here can
2 identify.
3 THE COURT: Raising the issue of self-representation is
4 a broad question. But I don't think we have to deal with the
5 broader question in light of what he said yesterday. I mean,
6 he could have told me sometime in the past. He could have
7 made a conditional request to me that included the option of
8 self-representation. But if a defendant makes a conditional
9 request for self-representation, you have to evaluate the
10 request to see whether or not it is in fact an unequivocal
11 request for self-representation and whether it triggers
12 advisement of Faretta rights. But yesterday the defendant
13 categorically told me he did not want to represent himself; he
14 wanted to proceed through counsel.
15 MR. CLEARY: That being said, Your Honor, we'll take
16 whatever time the Court would allot us.
17 THE COURT: I think we should come back to the courtroom
18 at 9:00.
19 MR. CLEARY: Fine, Your Honor.
20 THE COURT: I want to call the jurors in. You don't
21 have problems with that, right?
22 MR. DENVIR: No, Your Honor.
23 THE COURT: How about the missing juror? Do you have
24 input on that?
25 MR. CLEARY: Whatever Your Honor wants to do. We -- I
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1 guess our choices are either to adjourn for the day, which I
2 realize you don't want to do, or to discharge the juror.
3 THE COURT: Go ahead.
4 MR. DENVIR: Your Honor, I don't think the Court should
5 take any step in regard to discharging jurors while this is
6 pending. The juror has not been sworn, and you've always had
7 the option before of adding jurors as necessary, of
8 replacing. I would suggest to the Court that you maybe read
9 that instruction you have and advise them there's another
10 problem and just leave it at that, until we resolve the issue
11 of Mr. Kaczynski representing himself. The jury has not been
12 sworn; jeopardy does not attach. It doesn't seem there's any
13 need to do anything about the jury.
14 (Discussion off the record between Mr. Denvir and
15 Ms. Clarke).
16 MR. DENVIR: And we don't feel there's any reason to
17 decide whether that particular juror who was sick today needs
18 to be discharged and replaced or anything of that nature at
19 this particular point. Maybe if it's 9:00 o'clock, a
20 preliminary ruling, because I think Mr. Kaczynski's prepared
21 to proceed without that juror present for the purpose of
22 bringing them in just to instruct them.
23 THE COURT: Are you also indicating that I should
24 consider calling in the next juror to replace that juror?
25 MR. DENVIR: Your Honor, I think maybe we could deal
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1 with that at 9:00 o'clock, I think, rather than --
2 THE COURT: There's a Ninth Circuit decision involving a
3 juror that didn't appear at trial. And what the trial judge
4 did was had all of the trial proceedings transcribed and
5 read -- allowed the juror to read the trial proceedings. I
6 was telling you about that decision, and I probably have a
7 cite to that case in my chambers, so you can probably call my
8 chambers and get the cite to it, if you'd like to read that
9 decision.
10 MR. CLEARY: Your Honor, we'd make a request that the
11 Court not swear the jury until we've resolved whatever issues
12 we can resolve today.
13 THE COURT: I'm not going to swear them in. I'm just
14 going to bring them in and talk to them.
15 All right. Let's bring them in.
16 (Discussion off the record between the Court and the
17 clerk, following which the clerk left the courtroom.)
18 THE COURT: I'm going to add to the communication I
19 shared with counsel. I want you to look to the addition and
20 see if you have any problems with it.
21 (Counsel examine document.)
22 THE COURT: (Indicates.) Taking action, I believe, is
23 required by law and --
24 MR. SOWARDS: That's fine, Your Honor.
25 MR. CLEARY: Okay, Your Honor.
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1 MS. CLARKE: That's fine.
2 (The jury entered the courtroom.)
3 THE COURT: You can take your seat.
4 Thank you for joining us. Some of you may be
5 disappointed by your appearance on Monday. You reported here
6 to fulfill your civic responsibilities only to find out after
7 at least three hours of wait that you weren't going to be able
8 to do that in the manner that you had contemplated. I take
9 full responsibility for the delay. But I allowed the delay to
10 occur because I felt it was appropriate under the
11 circumstances. It was not the fault of the parties. When a
12 judge takes action that the judge believes is appropriate
13 under law, you can't fault a party for that action. It
14 reflects one of the hallmarks of our constitutional
15 democracy. Sometimes justice does not move in accordance with
16 the notions we have in our mind; it moves at its own pace.
17 And if it has to slow down, so be it. That's the law.
18 But it's my interpretation of the law, and that's why I
19 take the blame. Sometimes judges interpret the law in a way
20 that's wrong, and they get reversed. Obviously, sometimes
21 judges are appealed. But, still, I accept full responsibility
22 for all delays involved in this proceeding.
23 You're going to experience another one but hopefully
24 this will be shorter. But I wanted to bring you into the
25 courtroom this time to explain it, because I think you should
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1 have the right to hear from me so you understand why you're
2 not going to begin fulfilling your civic duty here in this
3 courtroom. You're still fulfilling your civic duty, even
4 though you're not in this courtroom.
5 We are dealing with matters of constitutional
6 significance. As participants in our criminal justice system,
7 we do our best to deal with those matters before opening
8 statement, so that you can hear the opening statement and then
9 hear the evidence. But sometimes other things occur. That's
10 just the nature of our criminal process. If the delay turns
11 out to be longer than expected, I will invite you back into
12 this courtroom and explain that to you, so you will have a
13 general idea what is going on.
14 At this moment, the parties are going to be excused
15 until 9:00 o'clock, at which time they will come back into the
16 courtroom and we will see if we can resolve certain matters.
17 And if so, we will proceed with the trial. If not, we may
18 have to have another delay that I will invite you in and tell
19 you about it.
20 Okay. You can take them back to the jury room.
21 Thank you.
22 (The jury left the courtroom.)
23 THE COURT: Recess until 9:00 o'clock.
24 MR. CLEARY: Thank you, Your Honor.
25 MR. DENVIR: Thank you, Your Honor.
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1 (A recess was taken.)
2 THE COURT: Let the record reflect that the same
3 participants are present except for -- I don't see Ms. Clarke.
4 MR. DENVIR: Ms. Clarke is out in the hall, Your Honor.
5 We will proceed without her.
6 THE COURT: Okay. What is the status?
7 MR. CLEARY: Your Honor, let me state the Government's
8 position as completely as I can.
9 We are very concerned about the prospect that this
10 defendant, who has articulated strong desires to represent
11 himself, may not be allowed to do that. We think he has a
12 Sixth Amendment right to represent himself. I realize that
13 the perception in some quarters may be that that -- the
14 Government would say that to secure --
15 THE COURT: Just a moment.
16 (Ms. Clarke entered the courtroom.)
17 THE COURT: There's another issue before you even reach
18 that issue.
19 MR. CLEARY: Certainly.
20 THE COURT: That's a Faretta issue. The first issue is
21 competency. And there's even another issue, which I think is
22 perhaps the key issue. That issue involves who controls the
23 mental status defense. It is my opinion that that's what this
24 is all about. The question is whether I should have argument
25 on that issue. I don't know if the defense -- you can't
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1 argue, of course, because you will probably not be able to
2 argue, to have a conflict with your client's position. But
3 the Government would probably have -- should be allowed to
4 address that issue. That's the question. But the competency
5 issue may even override that question.
6 MR. CLEARY: May I respond, Your Honor?
7 THE COURT: Yes.
8 MR. CLEARY: As to the question of who controls the
9 mental defense or defenses generally, I hesitate to disagree
10 with the Court, but I think my view was that was the issue
11 yesterday. I think the issue today, when the defendant says
12 he wants to represent himself, is the question of Faretta
13 and --
14 THE COURT: He's only saying that, in my opinion,
15 because he wants to control the mental status defense.
16 MR. CLEARY: That may well be so, Your Honor, but I
17 don't think we can avoid the fundamental question, which is
18 it's his Sixth Amendment right to represent himself.
19 THE COURT: I know that. You may be taking my
20 preliminary comments as indicating a ruling. It indicates no
21 ruling. Focus on competency.
22 MR. CLEARY: Okay. Let me deal with the competency
23 issue. As best we can figure out in the last 20 minutes, the
24 question of competency -- it's a single question as to
25 competency to be prosecuted and competency to represent
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1 yourself. Our understanding is it's the same standard.
2 We, throughout this proceeding, have said we see no
3 evidence that the defendant is incompetent. We were talking
4 then about incompetent to be prosecuted, but we believe that,
5 as I say, that's the same standard for representing himself.
6 And we still see no evidence of that.
7 THE COURT: Let me share something with you. I have to
8 be -- I should be transparent with my thinking so that the
9 Government understands what I consider to be the legal thicket
10 afoot here.
11 In my opinion, the defendant would not be asking to
12 represent himself if he was in control of the mental status
13 defense. That's my opinion. And so the competency issue has
14 to be evaluated in light of whether he is competent to make a
15 determination as to that defense and also as to whether he is
16 competent to represent himself. There's two issues.
17 Okay. Go ahead, sir.
18 MR. CLEARY: Thank you, Your Honor.
19 And as I started to articulate, I think our preliminary
20 research on this -- we had to do it fairly quickly -- is that
21 that is the same standard; it's the same standard for both, I
22 mean, to be prosecuted and to represent himself.
23 It's the Government's position that we have seen no
24 evidence that he is not competent; the defense attorneys have
25 articulated on several occasions directly that the defendant
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1 is competent and assisting in his defense, and on several
2 occasions somewhat indirectly they have indicated that in
3 various pleadings in this case.
4 And the Court, who has spent, we gather, a substantial
5 period of time with the defendant in the ex parte conferences
6 over the last couple weeks, has also stated unequivocally that
7 there is no evidence that the defendant is incompetent.
8 THE COURT: I just had a flash on -- the point that I
9 tried to make earlier, I'm not sure I made it clearly. It
10 involves a possible error. Mr. Kaczynski could argue that he
11 is being forced to represent himself, he really doesn't want
12 to represent himself, that he's being forced to represent
13 himself because of my ruling on the mental status issue, and
14 that if I had made what he considers to be a correct ruling on
15 the mental status issue, meaning that he is in control of that
16 issue, not his counsel, he wouldn't be asking to represent
17 himself, and so this is a forced decision.
18 And so when I indicated to you earlier that that
19 decision has some interplay with what's going on, that's what
20 I meant. And I didn't -- I'm not sure that I fully reflected
21 that. That was my thinking.
22 MR. CLEARY: I think you articulated that, Your Honor.
23 THE COURT: Oh, I did?
24 MR. CLEARY: I understood that's the Court's view.
25 THE COURT: Okay.
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1 MR. CLEARY: And I'll get back to that in a second, if I
2 could. But to finish the competency issue, it's the
3 Government's position the defendant is entirely competent to
4 represent himself and to stand trial.
5 The question that the Court is asking, or the point the
6 Court is making, about the defendant possibly being forced to
7 represent himself is -- the way I look at it gets back to the
8 discussion we had yesterday and what the Court pointed out
9 today: who's got the choice of defense?
10 That's been a serious issue for us, Your Honor. We've
11 discussed that issue last night with the Solicitor General's
12 office and the Appellate Section of the Criminal Division of
13 the Department of Justice. And it appears, based on our own
14 conversations and our own independent research, that the
15 answer, unfortunately, is far from clear. There are those
16 line of cases we cited Your Honor to, in which it is clear
17 that the choice of an insanity defense is the choice of the
18 defendant. On the other hand, it's clear that -- at the other
19 extreme, it is clear that major decisions like do I plead, do
20 I testify -- that's the defendant's decision.
21 THE COURT: Right.
22 MR. CLEARY: And the third area is day-to-day management
23 of the trial; objections and that sort of stuff is for counsel
24 to decide.
25 We have yet to find -- and those are the pole stars we
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1 used to try and judge where we are now -- we have yet to find
2 a case precisely on point dealing with regarding choice of
3 defense that is not an insanity defense. Although we give
4 this is analogous, I realize you can distinguish this.
5 What concerns us is that I think by telling the
6 defendant that by taking an area that we view as uncertain in
7 the law and telling the defendant that that is not his choice,
8 that he has to live with choice of counsel -- creates a
9 potential for grave appellate error in this case. And that's
10 been our major source of concern tonight and today, and that's
11 why we've been asking for a little more time to resolve this.
12 We think it is a tremendously complicated issue for which
13 there is no ready answer. And, I assure the Court, through
14 late last night and early today we have been consulting with
15 as many people as we can in very high positions at the
16 Department of Justice, and we have yet to come up concrete
17 advice for the Court. But if the Court is determined to go
18 forward, and I understand --
19 THE COURT: But just a moment. You knew this issue was
20 an issue at least two weeks ago, because you've submitted a
21 brief on it. I think you've given me two briefs on it.
22 MR. CLEARY: We have, Your Honor.
23 THE COURT: And so it's not a surprise issue.
24 MR. CLEARY: No, and I'm not suggesting it is.
25 But the new issue, the surprise issue, the difficult
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1 issue for us is the Faretta issue with -- as Your Honor's
2 pointing out, the overlay of the defendant's possibly,
3 arguably, being impelled in some way to represent himself.
4 THE COURT: That's the question.
5 MR. CLEARY: Right. And that's the one we're having a
6 lot of difficulty with at this point, Your Honor.
7 I think that the safer course would be -- and most
8 effective course and certainly the most efficient course would
9 be to tell counsel, direct counsel to follow the defense
10 wishes of the defendant. He's got, obviously, exceedingly
11 competent counsel, who have been vigorous in protecting his
12 interests, who have vigorously litigated this case, and they
13 know this case inside and out. You're not going to get better
14 lawyers for Mr. Kaczynski. If the Court were to direct
15 counsel to put forth whatever defense the defendant wants, I
16 think that protects the record, and it obviously -- we can
17 start this trial today, because we can get this off and
18 running.
19 THE COURT: I understand.
20 MR. CLEARY: Just to address the Faretta issue very
21 briefly --
22 THE COURT: Well, would you have to? Because if my
23 tentative opinion is that if he's ready to go now, I'm
24 inclined to let him do that, if we've reached this point,
25 reached that point, assuming he's competent. I don't know
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3700
1 what you want to address.
2 MR. CLEARY: Was Your Honor suggesting to represent
3 himself?
4 THE COURT: Right.
5 MR. CLEARY: And then there would just be the question
6 of the Faretta warnings at that point, but I'm sure Your Honor
7 has a better handle on that than I do.
8 THE COURT: Right. I'd have to give him the amount
9 of . . .
10 MR. CLEARY: May I have one second, Your Honor?
11 (Discussion off the record among Government counsel.)
12 MR. CLEARY: Nothing further, Your Honor. Thank you.
13 THE COURT: Okay. I think the issue is competency.
14 What the government, in essence, argues is that the law
15 is unclear as to who controls the mental status defense. I
16 think I'm probably correct in the way I coined the issue. I
17 think the crux of the question centers on who controls that
18 defense. And I believe that Mr. Kaczynski has expressed the
19 interest of representing himself because I told him he doesn't
20 control that defense. The Government's research to date
21 reflects what I found to date, and that's that the law is not
22 clear on this precise question. I think the law is somewhat
23 clear as to who controls the insanity defense. But that
24 defense involves a plea and it's pretty clear that a criminal
25 defendant decides what to plead. The Government argues that I
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3701
1 should revisit that issue, make a determination that the
2 defense is controlled by the client and that the client's
3 counsels have to yield to his desires. That's the question.
4 And also involved in that question is the competency issue.
5 What's the defense's response?
6 (Discussion off the record among defense counsel.)
7 MS. CLARKE: Your Honor, I think that the Court is
8 focused on the issue precisely and accurately. And I think
9 the issue of who controls the defense was resolved yesterday,
10 and we believe that the Court is correct, that it is the
11 lawyer's professional obligation to make strategic decisions
12 and present the case in the way that the lawyer professionally
13 believes is accurate and appropriate. And I think to say
14 otherwise to counsel would pit a lawyer against his or her
15 oath, professional oath. And I understand that there's
16 litigation over that, but I think the Court, for purposes of
17 this case, has resolved that question.
18 Where it becomes a difficult issue on the question that
19 the Court raises of competency is the question of --
20 Mr. Kaczynski and I believe the Court is correct, and he has
21 said it to the Court and I said it this morning: that he
22 feels he has no choice. His present counsel intend to present
23 him in a light of mental illness and intend to present to the
24 jury his case in a way that he has had for his entire life a
25 deep and abiding fear that he would be presented. The Court
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3702
1 has evidence in the record already over the past several
2 months of that problem. The Court knows the intensity of
3 Mr. Kaczynski's feelings that that is not the way in which he
4 wants to be presented.
5 We have said to the Court repeatedly that we believe
6 that Mr. Kaczynski understands and knows the nature of the
7 proceedings and that to those particular days we had been able
8 to accommodate the situation. It appears that we no longer
9 are able to accommodate it, because Mr. Kaczynski cannot
10 endure the presentation of a mental health defense and he
11 feels because of that heartfelt reaction on his part, he must
12 represent himself. So I think that the Court has --
13 THE COURT: Just a moment. I want to reflect on
14 something you've just said, and it's on my screen. I want to
15 read it. Just a moment.
16 (Pause in the proceeding.)
17 THE COURT: All right. What I wanted to make sure I
18 heard correctly -- is trial counsel's assessment, and this is
19 part of my discernment, that unless Mr. Kaczynski acquiesces
20 in the assertion of the mental status defense he's not
21 competent? Is that what you were indicating?
22 MS. CLARKE: I . . . I think that would be a legal and
23 factual determination, and what I wanted to do was guide the
24 Court to the portions in the record where I believe that is
25 the case. We have taken a position all along that we believe
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3703
1 that the unendurability of this defense is based in the mental
2 illness. So "yes" is the bottom line.
3 THE COURT: "Yes" to my question?
4 MS. CLARKE: Yes.
5 THE COURT: Here are the choices. Or let me hear from
6 the parties. Maybe you want to suggest choices. It appears
7 to me that, in light of what defense counsel just said, one
8 option I have is to call in the conflicts lawyer to personally
9 represent Mr. Kaczynski's position. What's the parties'
10 position on that?
11 MR. CLEARY: That would be for trial purposes, Your
12 Honor?
13 THE COURT: No, just on the conflict issue that I
14 believe is evident.
15 MR. CLEARY: That would be acceptable to the Court [sic]
16 if the Court felt that it would further the discussions that
17 the Court had ex parte.
18 THE COURT: You said, "That would be acceptable to the
19 Court." You meant "acceptable to the Government"?
20 MR. CLEARY: I'm sorry. The Government, Your Honor.
21 THE COURT: Trial counsel for the defense.
22 MR. DENVIR: Your Honor, we would have no objection to
23 that, and Mr. Kaczynski would like to have assistance so he
24 would have someone to help him in representing his views
25 against those of his present counsel in that regard.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3704
1 THE COURT: Have I correctly identified the issues? My
2 thought is Mr. Kaczynski disagrees with the position
3 articulated by trial counsel and that he would desire to have
4 the conflicts lawyer to express his opinions on the subject.
5 That's my guess. Am I correct?
6 MR. DENVIR: I believe that's right, Your Honor.
7 Obviously, there's a disagreement on how to go forward with
8 this defense. I think Mr. Kaczynski would appreciate the
9 services of someone other than his present trial counsel who
10 could articulate for him, advise him and articulate to the
11 Court for him as to what he wishes to do in this regard.
12 THE COURT: Well, that's a different question. It may
13 relate to the question we're focused on. The question we're
14 focused on is a competency issue. And trial counsel have
15 expressed a view on it, and I assume that Mr. Kaczynski has a
16 different view, and that that view he may want to have
17 expressed through the conflicts lawyer.
18 MS. CLARKE: May we have just one moment, Your Honor?
19 THE COURT: Yes.
20 (Discussion off the record among Mr. Denvir, Ms. Clarke
21 and the defendant.)
22 MS. CLARKE: Your Honor, I think it would be appropriate
23 to have Mr. Clymo brought back in to discuss the position that
24 Mr. Kaczynski should take with regard to competency. I don't
25 think there's a disagreement about how we get to the issue,
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3705
1 that it is the unendurability of the defense.
2 THE COURT: I'm -- go ahead.
3 MS. CLARKE: But it's the question of whether or not we
4 are representing Mr. Kaczynski's interests when we say that
5 competency is the question. And I think Mr. Clymo could
6 represent Mr. Kaczynski's position on that. So it would be
7 helpful.
8 THE COURT: I'm going to ask you to crystallize what you
9 just told me.
10 MS. CLARKE: I think it would be helpful to bring in
11 Mr. Clymo on the question of whether there should be a
12 competency evaluation.
13 THE COURT: And by "evaluation," what do you mean?
14 MS. CLARKE: Examination.
15 THE COURT: By a physician? By a physician?
16 Examination by a physician?
17 MS. CLARKE: Yes.
18 THE COURT: Government?
19 MR. CLEARY: That would be fine, Your Honor, if the
20 Court wanted to have Mr. Clymo come in.
21 I just wanted to ask, when you said "physician," you
22 mean a psychiatric physician, correct?
23 THE COURT: Yes.
24 MR. CLEARY: That would be fine. If the Court wants to
25 proceed, there would have no objection to that. But -- let me
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3706
1 make that clear. No objection to Mr. Clymo coming in and
2 consulting with the defendant for whatever assistance that may
3 offer the Court.
4 THE COURT: The Government's present position -- well,
5 tell me your present position. You've heard what the defense
6 has stated. What's the Government's position?
7 MR. CLEARY: As to the issue of competency?
8 THE COURT: Let me elaborate on where I think we are.
9 The defense has indicated approval of bringing in
10 Mr. Clymo, the lawyer I have appointed to represent
11 Mr. Kaczynski for purposes of conflicts, so Mr. Clymo can
12 articulate Mr. Kaczynski's personal position on the issue.
13 The defense opines -- I should say trial counsel for the
14 defendant opines that this matter should be determined by
15 psychiatrists. And so Mr. Clymo would be -- we don't know
16 this, but perhaps articulating a different personal viewpoint
17 by Mr. Kaczynski. And I assume that the Government does not
18 believe this matter needs to be handled by psychiatrists.
19 (Discussion off the record among the Government
20 counsel.)
21 MR. CLEARY: We don't have an objection to proceeding
22 down that road. We're not asking for that and we don't
23 believe there is a need, from the Government's perspective,
24 for a competency inquiry, which is the view we've taken all
25 along up to yesterday, up to and including yesterday, and we
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3707
1 don't see any change on that issue for today.
2 But just procedurally, as I see this, obviously, the
3 Court can order a competency hearing sua sponte pursuant to
4 4241, and the defense, as well as the Government, could file a
5 motion seeking a competency motion. We're not seeking a
6 competency hearing, but the defense can make that motion,
7 should they care to, and where the Court finds reasonable
8 cause required by the statute, you could order the competency
9 hearing. To further that process, whatever is convenient for
10 the defendant and the defense counsel is fine by us. If, in
11 order for them to determine whether they want to make that
12 motion for a competency hearing, they believe it would be
13 helpful and the Court believes it would be helpful to have
14 Mr. Clymo in here, we have no objection to that whatsoever.
15 Am I responding to the Court's question?
16 THE COURT: Not in a crystallized fashion.
17 MR. CLEARY: What else do you want to answer your
18 question?
19 THE COURT: Don't worry about what I want. Tell me what
20 you want. That's what I asked you. I don't want you to think
21 about the things I may want you to do. I want you to tell me
22 what the Government wants to do. And if you cut that out of
23 it, maybe it would be more crystallized.
24 MR. CLEARY: On the competency issue alone?
25 THE COURT: That's what I was asking you about.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3708
1 MR. CLEARY: We're not asking the Court to do anything
2 on the competency issue.
3 THE COURT: Okay.
4 MR. CLEARY: We're not making a request.
5 THE COURT: All right. But it is clear to me that we
6 cannot go forward until that issue is resolved, and in light
7 of what trial counsel has just stated, the issue is not
8 resolved. Anticipating that I could possibly need Mr. Clymo,
9 I directed my staff to call him and ask him to come to the
10 courthouse. The response we received said he's an hour and a
11 half away from the courthouse.
12 I think I'm going to state publicly, so that everyone
13 understands why we are proceeding in this vein -- I don't have
14 the decision I am going to reference on the bench with me, but
15 there is a Ninth Circuit decision in the case of Mason
16 involving a criminal defendant that chose a course of action
17 which his trial counsel thought was unwise, and his trial
18 counsel did not support that course of action because his
19 trial counsel did not believe it was in the interests of that
20 criminal defendant and that the criminal defendant could
21 possibly be killed if he pursued that decision. The defendant
22 was personally bent on that course of action, and the district
23 judge in that case brought in a lawyer just to represent the
24 criminal defendant for the limited purpose of allowing the
25 criminal defendant to express his view on the issue.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3709
1 And so that's why I'm bringing in Mr. Clymo.
2 (Discussion off the record between the Court and the
3 clerk.)
4 THE COURT: Mr. Clymo probably won't be here until
5 11:00 o'clock. We cannot go forward without fully analyzing
6 the competency issue. We're not going to start covering that
7 issue until 11:00 o'clock. It seems doubtful that the trial
8 could begin. But it's possible. But that would only be an
9 hour for the trial. I would assume it would take us between a
10 half hour to an hour to cover the issue. It really depends on
11 what Mr. Clymo says.
12 What are your thoughts on the question? And I'm now
13 concerned about the jury; I'm concerned about the public; I'm
14 concerned about witnesses. But just because we are at this
15 point should not indicate that it's anyone's fault. A judge
16 must continuously determine whether a criminal defendant is
17 competent to stand trial. If I didn't think Mr. Kaczynski was
18 competent to stand trial, we wouldn't be here at this moment,
19 but I have to listen to all viewpoints on it. And when the
20 issue was raised by trial counsel, the Court must stop and
21 evaluate what counsel stated and make a ruling. And I think
22 I'm absolutely required to do this under the Constitution.
23 But I only said that so the public would know why we
24 must pause at this moment. And we have to return to the
25 question of the jury. The parties' input on it?
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3710
1 (Discussion off the record among Government counsel.)
2 (Discussion off the record among defense counsel.)
3 MR. CLEARY: Your Honor, from the Government's
4 perspective, perhaps it would be best to discharge the jury
5 for today and have them on telephone standby so we could call
6 them back in when we need them.
7 THE COURT: What does that mean? You don't want them to
8 come back tomorrow?
9 MR. CLEARY: What my concern is -- I would love for them
10 to come back tomorrow if we were assured we were going
11 forward. My concern is having them come in what would be a
12 third time and send them home, and really -- just as an
13 accommodation to the jurors, to let them know we will call
14 them when we need them as soon as we need them.
15 THE COURT: What's the defense's view on what the
16 Government just said?
17 MR. DENVIR: That's fine, Your Honor.
18 THE COURT: I'm pondering over what the Government
19 suggested earlier. And that if I ultimately decide
20 Mr. Kaczynski is competent, which, frankly, that's my view at
21 this very moment -- and I mean competent to stand trial -- if
22 I decide that, knowing that he only wants to represent himself
23 because of his dispute with trial counsel over the assertion
24 of the mental status defense -- knowing that, I would probably
25 have to allow him to do that, if he's competent. Knowing that
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3711
1 he would prefer to be represented by present trial counsel
2 without assertion of that defense, it seems that the
3 Government's position is persuasive.
4 I'm just saying that because you should think about that
5 as trial counsel, because it seems to me that if I find he is
6 competent -- and I've already stated that at this very moment
7 I believe he's competent to stand trial -- given the scenario
8 I just related, it would seem to me that his present trial
9 counsel should represent him, if that is his desire, without
10 assertion of the defense.
11 MR. DENVIR: Your Honor, you're talking about the
12 Government's suggestion is that the Court would order us --
13 the suggestion being made is that the Court would order us
14 that we could not present the defense that we feel is called
15 for in a capital case and would have to accede to the
16 defendant's wish not to present that defense? Is that the
17 suggestion?
18 THE COURT: Yes.
19 MR. DENVIR: Then we would have to deal with that.
20 THE COURT: Okay.
21 I'm going to call the jury back into the courtroom.
22 (Pause in the proceeding.)
23 (The jury entered the courtroom.)
24 THE COURT: Thank you for joining us. You can take a
25 seat.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3712
1 As you know, we have been covering a matter, and we're
2 not finished covering that matter. We're not certain when we
3 are going to be finished covering the matter, but there are
4 just constitutional principles that are afoot that require us
5 to pause and to decide the issue. It has nothing to do with
6 the parties; it has to do with the process. The process, as
7 I've indicated earlier, they may not work in accordance with
8 our own personal notions, but it works. May not work fast
9 from the Court's own personal notions, but it's at a pace, and
10 I do believe that in the end, it turns. The wheels of justice
11 will in fact operate in accordance with our notions, which is
12 that you will have witnesses and you will hear testimony,
13 yet.
14 But not at the moment. We are going to -- not release
15 you; you are jurors. Don't listen to any news reports, etc.
16 Continue to follow my instructions. That's extremely
17 important. You could even be curious about what's going on.
18 At the end of the trial, I'll be happy to talk to you -- I
19 don't know if I'll be happy to talk to you, but I will make
20 myself available to communicate with you. The parties
21 typically make themselves available, too, to communicate with
22 jurors at the end of the trial. And if you wanted insight
23 into some of the things that I'm telling you about now, I can
24 tell you then.
25 But in the meantime, please strictly adhere to the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3713
1 admonitions and instructions. We will place you on standby
2 status until we need you again. At this moment I'm going to
3 allow the marshals to take you back to the location from which
4 you were picked up.
5 All right. Thank you.
6 I assume my communication with the jurors was okay?
7 MS. CLARKE: Yes, Your Honor.
8 MR. CLEARY: Yes, Your Honor. Thank you.
9 (The jury left the courtroom.)
10 THE COURT: Adjourn until 11:00.
11 MR. CLEARY: Yes, Your Honor.
12 MR. DENVIR: We're meeting in the courtroom again at
13 11:00 o'clock, Your Honor?
14 THE COURT: Yes.
15 (A recess was taken.)
16
17
18
19
20
21
22
23
24
25
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3714
1 THE COURT: Please reflect your appearances for the
2 record.
3 MR. CLEARY: Robert Cleary, Steven Lapham, and Stephen
4 Freccero for the government, Your Honor.
5 MS. CLARKE: Judy Clarke, Quin Denvir, and Gary Sowards
6 on behalf of Mr. Kaczynski, and also Kevin Clymo on behalf of
7 Mr. Kaczynski.
8 THE COURT: All right. Thank you. I asked Mr. Clymo to
9 join us, and I thank you for responding to the summons,
10 Mr. Clymo, as I thought there could be a need to provide
11 Mr. Kaczynski with personal assistance, although I'm not sure
12 that is necessary. I offered that as an option earlier, and
13 it's my understanding that his trial counsel and Mr. Kaczynski
14 embraced that option.
15 Correct?
16 MS. CLARKE: That's correct.
17 THE DEFENDANT: (Indicates in the affirmative.)
18 THE COURT: Okay. Did you see Mr. Kaczynski responded
19 Mr. Reporter?
20 THE DEFENDANT: Yes.
21 THE COURT: All right. I have appointed Mr. Clymo under
22 the rationale of two Ninth Circuit decisions, the Ninth
23 Circuit decision in Mason, 5 F.3d, 1220. 1993, and the Ninth
24 Circuit decision in Gonzalez, 113 Fed.2d. -- I think that's
25 F.3d, 1026, 1997.
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3715
1 The statute that is involved in our considerations is
2 Title 18 United States Code Section 4241(a), which provides at
3 any time after the commencement of a prosecution for an
4 offense and prior to the sentencing of the defendant, the
5 defendant or the attorney for the government may file a motion
6 for a hearing to determine the mental competency of the
7 defendant. That hasn't occurred, I'm only providing
8 background information.
9 The Court shall grant the motion, or shall order such a
10 hearing on its motion, if there is reasonable cause to believe
11 that the defendant may presently be suffering from a mental
12 disease or defect rendering him mentally incompetent to the
13 extent that he is unable to understand the nature and
14 consequences of the proceedings against him or to assist
15 properly in his defense.
16 There's another principle that's afoot. Although the
17 Court is to consider a defendant's trial counsel's views on
18 the question of competence, the Supreme Court in Drope at 420
19 United States 177 note 13 states that the court need not
20 accept without question a lawyer's representation concerning
21 the competence of his client, an expressed doubt in that
22 regard by one with the closest contact with the defendant is
23 unquestionably a factor that should be considered.
24 That doubt, and I want to be corrected if there's a
25 different view on it, was expressed today, and I'm going to
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3716
1 pause just for a moment because I think the doubt should be
2 crystallized, and I'm going to ask for input on it so this
3 proceeding can be focused.
4 You may go ahead.
5 MR. DENVIR: Go ahead, Your Honor. I'll wait.
6 THE COURT: All right. I'm going to tell you what I
7 think. And I don't know if I should think what I think. What
8 I assume is that the doubt stems solely from Mr. Kaczynski's
9 refusal to allow his trial counsel to assert the mental status
10 defense. And because of his refusal to cooperate in allowing
11 his counsel to assert that defense, then you are questioning
12 his competency.
13 MR. DENVIR: I think that's correct, Your Honor. And I
14 would say more strongly, I don't think it's a refusal to allow
15 us to do that. I do not think that Mr. Kaczynski can bear for
16 us to present that defense. And I think that therefore he
17 cannot cooperate or allow us to do that, and I think that is
18 why we do have that doubt.
19 THE COURT: I have to take a note on what you just
20 stated. It's going to take me a moment.
21 I alluded to constitutional concerns earlier without
22 mentioning any support for what I was saying because, frankly,
23 I didn't know we are going to cover the issue when we did.
24 But that one case that supports what I was indicating is a
25 Ninth Circuit decision in United States vs Loyola-Dominguez at
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3717
1 125 F.3d 1315, 1317, where the circuit states it is well
2 established a conviction obtained against an incompetent
3 defendant is a clear violation of the constitutional guarantee
4 of due process.
5 Competency requires that the defendant have the capacity
6 to understand the nature and object of the proceedings against
7 him, to consult with counsel, and to assist in preparing his
8 defense.
9 As stated in the Ninth Circuit decision of Mason, 5 F.3d
10 at 1223, and the Court was actually referencing Mr. Mason at
11 the time, the Court must ascertain whether Mr. Mason has the
12 capacity to appreciate his position and make a rational choice
13 with respect to continuing or abandoning further litigation or
14 on the other hand whether he is suffering from a mental
15 disease, disorder, or defect which may substantially affect
16 his capacity and the premises.
17 There's a related issue to what we're doing, whether I
18 should have recognized Mr. Kaczynski's right to serve as his
19 own counsel before covering this issue, because he has
20 asserted that right through counsel.
21 The decision in United States vs Purnett, 910 Fed.2d. 51
22 at 55 states refusing to accept a waiver of counsel until the
23 competency of the defendant to make a knowing and intelligent
24 waiver has been established will not create the catch-22 that
25 the government evokes.
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3718
1 I'm not indicating the government evoked it, but I'm
2 just letting you know that I think this is the correct
3 approach.
4 Hence, appointing counsel for the limited purpose needed
5 to determine whether a defendant is competent to stand trial
6 is not viewed as a denial of the defendant's right to
7 self-representation.
8 I think I covered the things I wanted to cover.
9 Mr. Clymo, I assume you've had a chance to talk to
10 Mr. Kaczynski or am I wrong about that?
11 MR. CLYMO: I have had a chance to talk to him today for
12 a very limited period of time. And as the Court, I believe,
13 is aware, I talked to him for a period of time on Monday, and
14 a period of time yesterday, Tuesday. With regard to this
15 specific situation, I have had probably, what, 15 minutes at
16 the most, probably 15 minutes at most to talk to
17 Mr. Kaczynski.
18 THE COURT: What do you reference by this specific
19 situation?
20 MR. CLYMO: My recall to court today.
21 THE COURT: Okay.
22 MR. CLYMO: And the issues that you've now just
23 delineated is what I'm referring to.
24 THE COURT: All I did was provide background to place
25 this proceeding in context. The issue is whether he is
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3719
1 competent to make the decision I believe I have indicated he
2 made. And a related issue is who controls that defense. Are
3 you in a position as his conflicts lawyer to express his views
4 on the issue?
5 MR. CLYMO: Mr. Kaczynski --
6 THE COURT: Let me say something. Let the record
7 reflect that when I said what I said, I'm not indicating that
8 you're not a lawyer, you're not operating as a lawyer. You
9 are a lawyer for him on this issue.
10 MR. CLYMO: Well, let me clarify one thing, Your Honor.
11 If the question is to me do I believe he is competent to make
12 these decisions, I don't believe that I have sufficient
13 foundation upon which to offer an opinion in the extremely
14 limited period of time and under the circumstances that exist
15 during which I had contact with Mr. Kaczynski. If you're
16 asking me to be Mr. Kaczynski's voice right now, I do know
17 what his position is.
18 Now, I don't know if that answers the Court's question.
19 THE COURT: It does. I don't -- I'm not certain I want
20 you to tell me his personal position.
21 MR. CLYMO: Thank you.
22 THE COURT: I really wanted your position, because the
23 there's a question as to his competence. He could incriminate
24 himself by expressing a personal view, and the Government
25 could use every one of his statements against him during every
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3720
1 phase of this trial, and I'm not inviting that.
2 MR. CLYMO: Thank you.
3 THE COURT: What's the Government's position on the
4 matter?
5 MR. CLEARY: Your Honor, the government has, as we said
6 before, has seen no evidence, no facts which would suggest
7 that the defendant is incompetent. However, based on the
8 representation by counsel today that Mr. Kaczynski cannot bear
9 for the defense counsel to present the defense, coupled with
10 the declarations that have been filed previously by defense
11 experts in this case, I think what the state of the record is
12 as follows: That the defense counsel and their expert's
13 position is that as a result of a mental defect, the defendant
14 is unable to rationally choose between his defenses, his
15 choices, his strategic choices at trial.
16 That inability is affecting his capacity to keep his
17 present lawyers, which we all recognize would be the best
18 thing for him to do, keep his current lawyers. Given that
19 that's the state of the record, it's the government's view
20 that the safest course is for the court to order the
21 competency hearing based on the representations made by
22 defense counsel today and the declarations that have been
23 previously filed.
24 THE COURT: Would you expect to -- what do you expect to
25 occur at the competency hearing?
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3721
1 MR. CLEARY: What I would imagine would happen is the
2 defendant would be sent to a federal institution that has a
3 psychiatric clinic associated with it; that the defendant,
4 pursuant to the statute 4247, would remain in that institution
5 for approximately 30 days. This would give an opportunity for
6 experts, multiple experts, to observe and evaluate and examine
7 the defendant. I think it's crucial that that happens because
8 the defendant has refused in the past to meet with psychiatric
9 experts, and if he is in that setting and he still persists in
10 that refusal, at least he will be in a position where he can
11 be meaningfully observed.
12 THE COURT: Why do you call that a competency hearing?
13 You're asking that I order that the defendant be confined at a
14 mental institution for psychiatric examination.
15 MR. CLEARY: That's right. Preparative to the hearing.
16 THE COURT: The defense.
17 MR. DENVIR: Well, Your Honor, I don't have with me the
18 letter that we previously filed with the Court, and I believe
19 the Court realized we would oppose sending Mr. Kaczynski away
20 to some federal institution. We believe the Court has the
21 authority to have any medical or psychiatric examination
22 conducted locally while he's at the Sacramento County Jail.
23 The Court has authority to appoint one or more psychiatrists
24 or psychologists to conduct that examination and file a report
25 with the Court, and we feel that's the way it should be done.
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3722
1 I don't have that in front of me, I did not anticipate we
2 would be where we are, but I believe that previously in the
3 letter, part of which the Court released, we dealt with that
4 authority in cases along that line. We don't see any reason
5 why this matter should require moving him to a federal
6 facility somewhere away from here when he can be evaluated
7 here by someone who can report back to the Court and then
8 there could be a hearing.
9 MR. CLYMO: Your Honor, I have to also say on
10 Mr. Kaczynski's behalf he objects to any such procedure. His
11 position is he's competent. He's competent to go to trial,
12 he's competent to exercise his Faretta rights, and he's
13 competent to control what defenses are presented. That's his
14 position. I told you I don't have a foundation to say he's
15 wrong. You asked me do you have a foundation to say his
16 lawyers are right. I don't have a foundation for that
17 either. And his position is he objects and he wants to go
18 forward.
19 MR. CLEARY: To respond to what Mr. Denvir said, the
20 statute does allow -- my reading of the statute 4247(b) would
21 allow the Court to appoint local psychologists and
22 psychiatrists to examine Mr. Kaczynski. I think the problem
23 we're going to have if the Court goes that route is the same
24 problem we had all along. Presumably he is going to refuse to
25 meet with those psychiatrists and psychologists, and they're
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3723
1 not going to have an adequate basis to meaningfully observe
2 and evaluate the defendant, where if he is in the federal
3 psychiatric institution for the period of time allowed for by
4 statute, that issue gets more firmly and concretely resolved.
5 And I think if the Court is going to order the hearing, that
6 that would be the best way to do it. Provide the Court with
7 the most complete evaluation of the defendant, and I think
8 that's what we need at this point. The government suggests
9 all this just so the record is clear as a prophylactic measure
10 to protect the record at this point, Your Honor.
11 THE COURT: Okay.
12 MR. CLEARY: Thank you.
13 THE COURT: Any response from the defense from caucusing
14 on your response?
15 MS. CLARKE: May we have just one moment, Your Honor.
16 THE COURT: Yes.
17 (Short discussion off the record.)
18 MR. DENVIR: Your Honor, for the record, the letter that
19 I was referring to was a December 19, 1997, letter which was
20 originally filed in camera, and subsequently the Court ordered
21 this particular part released that has the authority.
22 (Short discussion off the record.)
23 MR. CLYMO: Your Honor, I apologize, but I do require a
24 moment.
25 THE COURT: I'm not indicating that you're being rushed
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3724
1 just simply because I looked up. I was just looking to see if
2 you were ready. You can take your time, sir.
3 MR. CLYMO: Thank you.
4 (Short discussion off the record.)
5 MR. CLYMO: Your Honor.
6 (Short discussion off the record.)
7 MR. CLYMO: Your Honor, my position on this is that if
8 the Court is going to proceed with the procedure to establish
9 legal competency, that it be done locally and the Court
10 appoint doctors locally to do any kind of competency
11 examination. And I believe Mr. Kaczynski would cooperate with
12 that. So I don't think there's a concern that he would not
13 cooperate would play out.
14 MR. CLEARY: Your Honor, I am very concerned about
15 that. There's been a great deal of litigation in this case.
16 The defense attorneys have said, they argued that the
17 defendant has a deep-seated, long-standing fear of
18 psychiatrists that prevents him from meeting with
19 psychiatrists, and that that's a manifestation of what they
20 allege to be his mental disease. They now say the complete
21 reverse of that.
22 THE COURT: Why shouldn't you believe what he told me?
23 I understand what you just said. And that's not a fair
24 question to you.
25 Let me back up and start again, because I placed you in
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3725
1 an awkward position. I had numerous communications with
2 Mr. Kaczynski, and based upon what he just told me through his
3 counsel, I believe he will cooperate.
4 MR. CLEARY: If the Court is comfortable, you're in a
5 much better position to assess that than we are, obviously.
6 If the Court is comfortable that that would be the result, and
7 that cooperation means he would submit to examinations and
8 testing as proscribed under the terms and conditions for the
9 length of time required by the appointed experts, then we
10 share your comfort, if that's the way you feel about it.
11 But I just want to caution the Court that if you're
12 wrong about that, if your assessment turns out to be incorrect
13 about that, that we may wind up having a delay in this case
14 without really advancing the ball at all, because we would be
15 right back in the same position where we are where competent,
16 professional people do not have the information at their
17 disposal that they need to render what they believe to be a
18 reliable opinion. That's the risk of going down that road.
19 THE COURT: How do you know he will cooperate with the
20 individuals you're referencing?
21 MR. CLEARY: What I am suggesting is if we go the way
22 the government is suggesting pursuant to the statute, even if
23 he chose not to cooperate, he would be in a custodial setting,
24 no different from where he is now; in fact, probably better
25 accommodations than where he is now. He would be in a
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3726
1 custodial setting, he would be available to be observed for a
2 substantial period of time, up to 30 days by statute, and that
3 would give the Court -- the experts, and hence the Court,
4 additional feedback.
5 So that's where I think the difference is. If he
6 chooses not to cooperate, we will have at least some basis for
7 assessing this question.
8 THE COURT: It's absolutely clear to me that there is
9 foundation in the record that justifies the government
10 articulating the position you just stated.
11 The defense has heard it. I want to get input from the
12 defense before I decide.
13 MR. CLEARY: Thank you.
14 (Short discussion off the record.)
15 MR. CLYMO: Your Honor, I think all the factors line up
16 on doing it locally. Mr. Kaczynski will cooperate for the
17 purpose of developing legal competence. You have a jury
18 waiting. It can all be done much quicker doing it that way.
19 And as the Court has indicated, with the Court's contact
20 with him, the Court has a foundation for believing that he
21 will follow through with what he has said.
22 If you need him to say personally he will cooperate with
23 the local competency examination process, he will tell you
24 that.
25 THE COURT: He need not speak personally since you're
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3727
1 present. He has said that through you. I'm going to trust
2 him. I'm going to trust him.
3 Mr. Cleary, I understand your position. I don't think
4 I'm wrong. I hope not. I'm going to trust him.
5 MR. CLEARY: Fair enough.
6 THE COURT: How about the mechanism for bringing about
7 the result?
8 MR. DENVIR: Your Honor, based on the declarations that
9 were filed by the defense in the past, you know that our
10 experts have diagnosed Mr. Kaczynski as a paranoid
11 schizophrenic, high-functioning. We believe to get an
12 adequate competency evaluation, the Court should appoint
13 somebody who has expertise in that particular diagnosis, and
14 we would be glad to submit some names of people in the
15 Northern California area, and the government may want to also
16 do that.
17 I think this is a matter where you need the help of an
18 expert; I mean, an expert in that particular area.
19 THE COURT: My thought was that the parties should meet
20 and confer on this.
21 MR. DENVIR: Fine.
22 THE COURT: I should get your joint input, and I would
23 think a proposed order would be appropriate. And you should
24 do that as soon has you possibly can. And then if you can
25 agree, your agreement should be reflected in the order. If
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3728
1 you can't agree, I think we need to have another hearing.
2 MR. DENVIR: Could I speak to Mr. Cleary and see how
3 long he thinks we need for this?
4 THE COURT: Yes.
5 (Short discussion off the record.)
6 MR. CLEARY: Your Honor, I believe by tomorrow
7 afternoon, the parties could report back to the Court as to
8 whether we have an agreement on a list of names or a name, or
9 let the Court know if we can't reach agreement on that.
10 THE COURT: Okay. All right.
11 MR. DENVIR: Fine, Your Honor.
12 THE COURT: Is there anything further to cover?
13 MR. CLEARY: I guess the only question is what to tell
14 the jury at this point, if anything.
15 THE COURT: What do you think we should tell them?
16 MR. CLYMO: Your Honor, are you suggesting coming back
17 to court tomorrow afternoon or sometime tomorrow?
18 THE COURT: Well, the real question is how the parties
19 will let me know. It seems to me that if you agree, you
20 should provide me with a lodged order so that I can simply
21 sign the order, and the order will affect the examination
22 probably. And if you can't agree, then you need to appear.
23 This is not something we should handling telephonically. I
24 think we would have to appear in the courtroom.
25 MS. CLARKE: Just one moment, Your Honor.
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3729
1 (Short discussion off the record.)
2 MS. CLARKE: Your Honor, would it be agreeable if the
3 Court set a status hearing at 4:00 tomorrow afternoon, and if
4 we had a proposed lodged order before then, we could certainly
5 submit it to the Court before that time.
6 If the Court would prefer earlier, I think that would be
7 fine too.
8 THE COURT: I can order what you just indicated. The
9 only thing I'm wondering is what will I be provided if you're
10 not in agreement. I would want your respective positions,
11 because I'm assuming that we would have a status hearing so
12 that you could explain to me the reasons for not being able to
13 agree.
14 MS. CLARKE: Yes, I think that would be --
15 THE COURT: But my preference is I would want to have
16 those reasons before the hearing so I can evaluate the
17 problem. I don't want to have to try to figure it out on the
18 bench. I want to figure it out before I take the bench.
19 MS. CLARKE: How about by noon, if we notify the Court
20 by noon whether we're in agreement or what the nature of the
21 dispute is?
22 THE COURT: How?
23 MS. CLARKE: By telephone call to chambers. Would the
24 Court like something filed? We're cutting it a little bit
25 tight.
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3730
1 MR. CLEARY: Why don't we just appear.
2 THE COURT: What do you envision as possible obstacles
3 in reaching an agreement?
4 MS. CLARKE: Having never been here before, I don't
5 know.
6 THE COURT: Does the government have any idea?
7 MR. CLEARY: The only potential obstacle I can see, Your
8 Honor, is I would imagine the way the process is going to
9 work, we're going find out the -- government will find local
10 psychologists and psychiatrists that we think would be
11 appropriate for the circumstances, the defense will probably
12 do the same thing, and we'll talk to one another about what
13 our respective research revealed.
14 The only potential problem is going to be if there's no
15 overlap on those lists. If there's overlap, I think it's a
16 done deal.
17 THE COURT: I think we need to talk further here. How
18 many independent experts do you envision proposing?
19 MR. CLEARY: From the government's perspective, it would
20 probably be one or two. We would probably defer to the
21 experts themselves on that. With what little I know about
22 this area, I think it's probably going to be one or two.
23 THE COURT: Defense.
24 MR. DENVIR: That would sound correct, Your Honor.
25 THE COURT: So the area of possible disagreement will
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3731
1 probably be centered on which physician?
2 MR. CLEARY: That's correct, Your Honor. And that
3 dispute in and of itself may relate to which area of
4 expertise. I think the question paranoid schizophrenic is
5 important area for expertise in selecting an expert.
6 There may also be a need to get someone with some
7 knowledge about forensic issues, so we may talk to defense
8 counsel about that, and that will help us focus our list, and
9 hopefully there will be an overlap if we can do it.
10 THE COURT: Okay. I think just letting me know then by
11 phone should be sufficient, and we'll schedule the hearing at
12 4:00 o'clock for status. If you reach agreement and you're in
13 a position to lodge an order, you should lodge the order
14 before that time, perhaps sufficiently before that time just
15 in case I'm independently looking at the issue myself, it will
16 allow me to focus on other things.
17 MR. CLEARLY: In that event there would be no need for
18 the status conference, correct?
19 THE COURT: That's right. Mr. Kaczynski, I don't
20 express any -- you don't have to respond to me, sir. I don't
21 express any opinions in issuing the order that I'm issuing.
22 Basically, we're trying to determine whether there could be
23 something involved that lay people cannot detect, and that's
24 why we're following this approach.
25 Any problem that we need to cover?
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3732
1 MR. CLEARY: There was the question about communication
2 with the jury.
3 THE COURT: You're right.
4 MR. CLEARY: Perhaps we could take that up tomorrow when
5 we get a better sense of where we stand.
6 THE COURT: Right. But I should have my staff tell them
7 that they will not be called to court tomorrow.
8 MR. CLEARY: Right.
9 THE COURT: And then we can think about a more elaborate
10 communication to give them tomorrow. That means that we would
11 have to meet, and so what you would need to do then, you need
12 to give me two things if you are going to avoid a 4:00 o'clock
13 hearing. You would all have to jointly agree upon a
14 communication I could give to the jury.
15 MR. CLEARY: That would be fine, Your Honor.
16 THE COURT: Are we done?
17 MR. CLEARY: Yes.
18 MR. CLYMO: Your Honor, I need to clarify what my status
19 is at this point and if the Court wishes me to continue in a
20 status with Mr. Kaczynski through this.
21 THE COURT: Let me get talk to trial counsel first. I
22 will give trial counsel my thoughts and see what trial counsel
23 thinks.
24 We don't know how this is going to develop. I don't
25 know if trial counsel will be in agreement or disagreement
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3733
1 with Mr. Kaczynski on this issue. My thought is that he
2 should have his personal lawyer just to represent him on this
3 narrow issue.
4 MR. DENVIR: That's fine, Your Honor.
5 THE COURT: Do you agree?
6 MR. DENVIR: Yes, Your Honor.
7 THE COURT: That means that you're appointed under the
8 Ninth Circuit authority I've stated earlier on this narrow
9 issue to assist Mr. Kaczynski.
10 MR. CLYMO: Your Honor, I may need some help. If you're
11 anticipating coming back to court tomorrow afternoon sometime,
12 I may need some help in scheduling. I'm scheduled to be out
13 of the county tomorrow afternoon.
14 THE COURT: I don't think he needs to have you
15 tomorrow. The issues we're going to cover are really just
16 scheduling issues. My thought is that if we actually have to
17 go to a competency hearing, then he would need to have a
18 lawyer represent him if his views differ from his current
19 counsel.
20 It just seemed to me that allowing you to develop a
21 relationship with him would place him in a position to use you
22 in a very effective manner, and so that's why I'm allowing the
23 appointment, because I believe that you should be able to
24 establish a relationship with him and be in a position to
25 argue the position you believe you should argue as his
DENNIS F. McKINNON, CSR 2223 -- (916) 446-1347
3734
1 personal counsel on the issue should it, in fact, be a
2 conflict issue. So you're a conflicts lawyer.
3 MR. CLYMO: Thank you, Your Honor.
4 THE COURT: Anything further?
5 MR. CLEARY: Nothing from the government.
6 THE COURT: I assume the government has no position on
7 what I just stated.
8 MR. CLEARY: That's correct, Your Honor, we do not.
9 THE COURT: All right. Thank you.
10 MR. DENVIR: Thank you, Your Honor.
11 (Court adjourned.)
12 ---oOo---
13
14
15
16
17
18
19
20
21
22
23
24
25
DENNIS F. McKINNON, CSR 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 24, pp. 3678-3734
19 THURSDAY, JANUARY 8, 1998
20 -- oOo --
21
22 Reported by: SUSAN VAUGHAN, CSR No. 9673
23 DENNIS McKINNON, CSR No. 2223
24
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 KEVIN D. CLYMO
ATTORNEY AT LAW
17 1001 6th Street, Suite 400
Sacramento, CA 95814
18
19
Also Present: TERRY TURCHIE, Assistant Special Agent,
20 F.B.I. Unabom Task Force
ROBERT ROLFSEN, JR., Special Agent, F.B.I.
21
22
23 -- oOo --
24
25
KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347
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