U.S. v. Kaczynski
Trial Transcripts
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3735
1 SACRAMENTO, CALIFORNIA
2 FRIDAY, JANUARY 9, 1998, 4:00 P.M.
3 ---oOo---
4 THE CLERK: Calling criminal case 96-259; United States
5 versus Theodore Kaczynski.
6 THE COURT: Please state your appearances for the
7 record.
8 MR. CLEARY: Robert Cleary, Steve Lapham, and Stephen
9 Freccero for the government.
10 THE COURT: Thank you.
11 MS. CLARKE: Judy Clarke, Quin Denvir, and Gary Sowards
12 on behalf of Mr. Kaczynski.
13 THE COURT: Who is present.
14 MS. CLARKE: Who is present.
15 THE COURT: Thank you. Yesterday I asked you to meet
16 and confer to see if you can agree on a psychiatrist to
17 conduct a study and an examination of Mr. Kaczynski to
18 determine his competency to stand trial. I asked you to
19 contact my chambers about your efforts by noon. No one
20 contacted me about that matter. Perhaps you didn't contact me
21 because of the directive I had my deputy clerk give you which
22 basically told you that we were going to have this hearing.
23 When I gave that directive, I thought Mr. Kaczynski
24 should know that if he failed to cooperate with the competency
25 examinations, as he stated yesterday, that I would immediately
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1 send him to be examined by physicians, or I should say
2 psychiatrists, at the Bureau of Prisons.
3 This morning, I personally explored how long it would
4 take the Bureau of Prisons to conduct such an examination and
5 where the examination would take place. As I was speaking to
6 the Bureau of Prisons personnel, I requested whether there was
7 any way the Bureau of Prisons could provide an expedited
8 examination in the unique situation we are experiencing in
9 this case where we have selected a jury and desire to finish
10 the trial proceedings. In essence, the trial has commenced in
11 this case.
12 Eventually, I received assurance from the Bureau of
13 Prisons that a psychiatrist working at the federal correction
14 institution located in Butner, North Carolina, could commence
15 the examination on Monday, and that if Mr. Kaczynski is
16 cooperative, the examination could be completed by Friday.
17 And if typing service is available, the report could be
18 prepared about two hours after the examination is completed.
19 My inclination is to issue an order that Mr. Kaczynski
20 be examined by the Bureau of Prison's physicians and others
21 authorized to conduct such an examination needed to assist in
22 the examination and the study of his mental capacity to stand
23 trial.
24 The order would authorize the examining physicians to
25 access all pertinent medical and collateral information,
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1 including psychiatric and medical reports and psychological
2 testing. It would also authorize transporting Mr. Kaczynski
3 to the federal correction institute located at Butner, North
4 Carolina, or to any other designated federal psychiatric
5 institution for the examinations, by oral directive, meaning
6 that if Mr. Kaczynski is still providing assurance that he
7 will cooperate locally, the examination will occur locally.
8 And if he does not cooperate, then I will issue an oral
9 directive, and he will immediately be transported to a federal
10 psychiatric institution where the examination will be
11 completed. I will authorize the examination for the amount of
12 time that is authorized under law, which is 30 days.
13 I know I received a proposed order from the defense, I
14 think about 15 or 20 minutes before I took the bench. It came
15 too late. I did extensive work communicating with Bureau of
16 Prison personnel, and I am very appreciative that the
17 United States Bureau of Prisons will do what they've indicated
18 they will do. And I have already written an order that
19 effectuates what I've just said. And the order is signed and
20 is on the bench with me.
21 I will listen to you, but I doubt very seriously if you
22 can change my opinion. But I'm open for your position at this
23 moment.
24 MR. DENVIR: Can we have a moment, your Honor?
25 THE COURT: Yes.
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1 MR. CLEARY: Your Honor, from the government's
2 perspective, we have no objection to proceeding along the
3 lines you're suggesting.
4 THE COURT: Okay.
5 MS. CLARKE: May I just have one point of clarification
6 so that we can discuss it with Mr. Kaczynski? It's to be a
7 local examination unless there is a failure to cooperate?
8 THE COURT: Correct. It's my understanding -- I will
9 state it, because I know that there is a marshal in the
10 courtroom who is aware of the situation because I had the
11 marshal check with the local jail. It's my understanding the
12 examination can be conducted in the jail where he is now
13 located.
14 MS. CLARKE: And that would be the Court's intention?
15 THE COURT: That is my intention, provided he is going
16 to cooperate. If he's not going to cooperate, he will be on a
17 plane, and I will fly him to a psychiatric institution
18 immediately.
19 MS. CLARKE: We understand that.
20 THE COURT: Okay.
21 MS. CLARKE: Can we have just one moment?
22 THE COURT: Sure.
23 (Off-the-record discussion between defense counsel and
24 the defendant. )
25 MS. CLARKE: Your Honor, we really believe that this is
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1 a call for the Court to make, and we respect the Court's
2 decision and have no objection to that. It is our firm belief
3 that Mr. Kaczynski will cooperate with that competency
4 evaluation and will do so locally.
5 THE COURT: Okay. The order that I have created
6 basically authorizes an oral directive by me to tell the
7 marshal to transport him wherever I believe he should be
8 examined if he does not cooperate. And if I receive word that
9 he has not cooperated, I will issue the order.
10 MS. CLARKE: Would the Court be notifying us or would
11 the Bureau of Prisons be notifying us of the identity of the
12 examining physician so that we can talk to Mr. Kaczynski and
13 tell him when that would begin and who they are?
14 THE COURT: I believe that the examining physician will
15 be Dr. Sally Johnson. She is making arrangements to come to
16 Sacramento. She will be prepared to commence the examination,
17 perhaps first thing Monday.
18 That raises a question as to whether you have
19 information you want to give to Dr. Johnson. Do you have
20 medical reports and other information you want to give to
21 Dr. Johnson?
22 She obviously needs to have all the medical reports. We
23 know that. This is what I'm doing. Here's my order. I will
24 direct that my deputy clerk file it as soon as feasible
25 today. I have copies for the parties. Attached to the order
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1 is a copy of the indictment so that Dr. Johnson is aware of
2 the allegations involved in the case. I want my deputy clerk
3 to inform my secretary that I want the order faxed to
4 Dr. Johnson at this very moment.
5 MR. CLEARY: Your Honor, the government does have some
6 medical reports. And anything else we have, we'd make
7 available to Dr. Johnson. I guess the one thing we have to
8 think about is to what extent the Court wants us to open our
9 files to Dr. Johnson. In other words, do we want to show the
10 cabin documents and that sort of thing? I imagine we would
11 just leave that up to Dr. Johnson.
12 THE COURT: That's my thought. She obviously needs the
13 medical reports.
14 MR. CLEARY: Right. And we would provide that. And
15 whatever else we have of that nature, we would provide to her
16 immediately.
17 The Court's understanding is she will be here on
18 Monday?
19 THE COURT: The individual that you can give all the
20 information to is right behind you. Chief Deputy Mike Nelson
21 knows how to contact Dr. Johnson. And if you make
22 arrangements with Mr. Nelson, he will get all of that
23 information to Dr. Johnson. In fact, he can provide
24 Dr. Johnson with the information as early as Sunday.
25 We're done with that matter; right?
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1 I'm now going to comment on another matter. After we
2 completed all court proceedings yesterday, United States
3 Marshal personnel informed me that they received an allegation
4 that Mr. Kaczynski attempted suicide presumably the evening
5 before the January 8 hearing.
6 Obviously, as the trial judge, I have a keen interest in
7 knowing about such allegations, especially when I'm engaged in
8 a competency proceeding. I recognize the difficult job the
9 United States Marshal has in trying to keep judges from being
10 exposed to mere rumors that have no substance to them, but the
11 upshot of what I'm telling you is I knew nothing about the
12 allegations when we were proceeding yesterday.
13 Under Ninth Circuit law, as you will see when you read
14 my order, those allegations are significant to a determination
15 of the competency issue. I indicate in my order that under
16 Ninth Circuit law, the conclusion is inescapable that if you
17 have that type of an allegation, combined with the other
18 matters that took place in my courtroom yesterday, I believe
19 firmly that the judge is mandated to do exactly what I did.
20 There was another question concerning what do we tell
21 the jurors. Before we do that, we probably need to figure out
22 the timetable that's involved here. If we receive, as
23 Dr. Johnson has indicated, the report of the examination on
24 Friday, everything happens as planned, then the question is
25 whether we can schedule the competency hearing right now.
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1 Because in theory, the competency hearing could take place
2 that following week.
3 This is what I've already told the jurors through my
4 staff. I told my staff to tell the jurors that they will not
5 be meeting next week, because I knew that the examinations
6 would consume all next week. I figure that I can work on the
7 order that I believe the defense provided concerning
8 prospective communications to the jurors. We can do that
9 during this hearing, and what I can do is turn this into a
10 regular order.
11 I need to get your input before I communicate with the
12 jury. It's clear error if the judge doesn't do that if it
13 involves a significant matter. So we will clarify this. We
14 need to clarify the timetable first so that I can figure out
15 what to tell the jurors, and it seems that we should be able
16 to schedule the competency hearing at this very moment.
17 MR. CLEARY: Your Honor, how about the following
18 business day after the report's due? The report would be on
19 the 16th, Friday the 16th. Have the hearing on the 20th.
20 Monday is a federal holiday. Tuesday the 20th for the
21 hearing.
22 THE COURT: What do you envision being presented at the
23 hearing?
24 MR. CLEARY: It's difficult to predict, your Honor, not
25 knowing what the report is, because it could be as simple as
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1 the submission of the report from Dr. Johnson and both sides
2 accepting the findings in Dr. Johnson's report. It could, on
3 the other hand, be a contested report in which one side or the
4 other takes the position that Dr. Johnson's findings are
5 erroneous, in which case I imagine Dr. Johnson would have to
6 testify and both sides would direct and cross-examine her.
7 THE COURT: So you are indicating that we need to
8 determine if Dr. Johnson is available for a personal
9 appearance on the 20th?
10 MR. CLEARY: That's correct, your Honor.
11 THE COURT: Would there be any other witnesses other
12 than Dr. Johnson?
13 MR. CLEARY: None from the government, your Honor.
14 MR. DENVIR: Your Honor, we would ask that the Court
15 schedule the competency hearing for the following Wednesday to
16 allow us time to react to the report. As to whether there
17 would be merely the submission of the report, whether there
18 would be a need for Dr. Johnson to even appear, whether there
19 would be other witnesses, I think, would depend on the report
20 itself. And we would notify the Court on the first business
21 day after we have it what we think is necessary. It may very
22 well be that the parties will just submit it on the written
23 report.
24 THE COURT: I'm not sure that I am following what you're
25 stating, because you're indicating that we should schedule the
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1 hearing for the 21st rather than the 20th.
2 MR. DENVIR: If that's a Wednesday, yes, your Honor.
3 THE COURT: And that you will let me know something the
4 first business day after receiving the report, which would be
5 Tuesday.
6 MR. DENVIR: Tuesday morning.
7 THE COURT: That's not going to work, because
8 Dr. Johnson has to fly here. I mean, unless she's going to
9 stay here, she'd have to fly here from North Carolina. And I
10 assume she has to make travel plans. I don't know if she can
11 get here that fast. Because you would let me know on the 20th
12 basically of her need, and then she would have to make
13 arrangements to get here by the 21st.
14 MR. DENVIR: Would the Court prefer to put the hearing
15 over to Thursday and we could notify you on Tuesday? I don't
16 know when we will receive it on Friday. We will need some
17 opportunity to review it and review it with Mr. Kaczynski. It
18 may very well be that both sides feel that it can be submitted
19 on a written report without Dr. Johnson appearing and without
20 further evidence. I just can't anticipate.
21 THE COURT: I understand. I know that. Okay. I think
22 that's what we'll have to do. We'll have to schedule it for
23 the 22nd. I need to have the marshal, Mr. Nelson, communicate
24 that fact to Dr. Johnson.
25 If there's a problem with that, you can let me know.
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1 What time on the 22nd?
2 MR. CLEARY: Whatever is convenient for the Court.
3 MR. DENVIR: Convenience of the Court.
4 THE COURT: I'm wondering if we shouldn't do it at 8:00
5 o'clock, because if there's no problem with the report, we can
6 do the trial. 8:00 o'clock.
7 MR. CLEARY: Your Honor, the only potential problem with
8 that is that would require summoning the jury for that
9 morning.
10 THE COURT: I know.
11 MR. CLEARY: And if there is a problem with the hearing,
12 then we may have the jury stuck waiting here and we send them
13 home.
14 THE COURT: I'm asking these questions so that we can
15 figure out how to communicate with the jury. I think the jury
16 should be placed on standby status in my order so that they
17 know they may very well have to appear for the trial on the
18 22nd. I want to look at the proposal submitted by the
19 defense. I want to see if we can finalize it right now.
20 MS. CLARKE: Regarding the jury?
21 THE COURT: Correct.
22 MS. CLARKE: Your Honor, that actually was a joint
23 proposal.
24 THE COURT: Was it?
25 MS. CLARKE: Yes.
KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347
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1 THE COURT: Okay. Well, the thing that is a little bit
2 troubling, but I can understand why you did it, the judge has
3 taken fault for the delay. I did that, and I did that
4 publicly, but it was not really my fault.
5 MR. DENVIR: It's okay to blame the government, your
6 Honor.
7 THE COURT: I'll read this. If you could read along
8 with me. I don't think we need to say anything about fault
9 again because I told them.
10 I have no changes to the first sentence which states --
11 I need to think about this for a moment, though, because if
12 it's going to be an order, I may have to revise portions of
13 it.
14 How about this. I will set forth at the very top
15 "ladies and gentlemen," and then state "we are still involved
16 in proceedings which are necessary under the law in this case
17 which will delay the start of this jury trial."
18 I don't think we need the part that's bracketed. I will
19 delete that.
20 Is that all right?
21 MR. DENVIR: Yes, your Honor.
22 MR. CLEARY: That's fine.
23 THE COURT: Okay. And then "at present, we anticipate
24 that these proceedings will be resolved no later than January
25 22." I'm going to change the language. I'll say "but it is
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1 possible that the trial could commence by January 22." I'll
2 state what you have there, except I'll modify it slightly.
3 "If there is to be a later start, you will be notified." And
4 then everything else that you have.
5 I'll read it for the record so the public knows.
6 "The Court and the parties appreciate your patience.
7 Please remember the admonition to avoid all news media
8 accounts and discussions with others about the case." And
9 then I'll sign it, and it will be an order.
10 Is that approved?
11 MR. CLEARY: Yes, it is, your Honor.
12 MR. DENVIR: Yes, your Honor.
13 THE COURT: Have we covered everything?
14 MR. CLEARY: I believe we have, your Honor.
15 THE COURT: How about the report? My order says the
16 report is sealed. What's the parties' reaction on that? The
17 report that Dr. Johnson will prepare.
18 You can look in my order. You have a copy of it, I
19 think. I don't any more. Did I not have my deputy clerk give
20 it to you? Let me have the original.
21 I'm going to read this portion just in case there's an
22 objection to it, and then the objecting party can take issue
23 with it. I will read the last paragraph. Again, this order
24 will be made available to the public immediately following
25 this hearing.
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1 "It is further ordered that such study and examinations
2 may be conducted for a reasonable period but not to exceed 30
3 days and that a report be prepared pursuant to the provisions
4 of Section 4241(b) of Title 18 and filed with the Court under
5 seal."
6 And then I have a footnote which explains my opinion on
7 it. This is how the footnote reads.
8 "This document is not the type which has historically
9 been open to inspection by the press and the public, and
10 public access would not play a significant positive role in
11 the functioning of the particular process in question."
12 And then I cited cases in which other courts have sealed
13 such documents.
14 MR. DENVIR: We agree with the Court's analysis, your
15 Honor. We would ask that it be sealed.
16 MR. CLEARY: We have no objection, your Honor, but I
17 assume both parties will get copies of the report; right?
18 THE COURT: Right.
19 MR. CLEARY: No objection.
20 THE COURT: I don't think we covered by what time; what
21 hour you would let me know your position on the report. You
22 will receive the report on Friday.
23 MR. DENVIR: Your Honor, we would ask the Court to allow
24 us until noon on Tuesday. We will meet that deadline this
25 time.
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1 MS. CLARKE: As long as the Court doesn't confuse us.
2 THE COURT: Is that okay with the government?
3 MR. CLEARY: Yes, it is, your Honor. Thank you.
4 THE COURT: Is there anything further to cover?
5 MR. DENVIR: No, your Honor.
6 No, your Honor.
7 THE COURT: Thank you.
8 (Court adjourned.)
9 ---oOo---
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KELLY O'HALLORAN, CSR 6660 -- (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. )
______________________________)
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16 REPORTER'S DAILY TRANSCRIPT
17 JURY TRIAL
18 VOLUME 25, pp. 3735-3749
19 FRIDAY, JANUARY 9, 1998
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21
22
23 Reported by: KELLY O'HALLORAN, CSR No. 6660
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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
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KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347
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