U.S. v. Kaczynski
Trial Transcripts
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1 SACRAMENTO, CALIFORNIA
2 TUESDAY, JANUARY 13, 1998, 9:00 A.M.
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4 (The following discussion was conducted in chambers,
5 with parties appearing telephonically as indicated.)
6 THE COURT: Hi. This is Judge Burrell. Please state
7 your appearances for the record. It's being reported by a
8 certified shorthand reporter.
9 MR. CLEARY: Robert Cleary, Steven Lapham and Stephen
10 Freccero for Government.
11 MR. DENVIR: Quin Denvir and Gary Sowards for
12 Mr. Kaczynski.
13 THE COURT: Thank you. Thank you for agreeing to meet
14 on such short notice.
15 I started reflecting this morning on the material being
16 considered by Dr. Sally Johnson in connection with the
17 competency issue, and I began to wonder whether the letters
18 which Kaczynski submitted to me under seal have been given to
19 Dr. Johnson.
20 MR. DENVIR: I don't believe they have, Your Honor. I
21 don't believe she's asked for them.
22 THE COURT: Well, she may not ask for them because they
23 may not know about them.
24 MR. DENVIR: She knows about them, Your Honor, because
25 she's talking to Mr. Kaczynski and talking to us.
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1 THE COURT: You don't believe it's important for her to
2 have those communications, Mr. Denvir?
3 MR. DENVIR: We would be happy to provide them to her,
4 Your Honor, if she wants them, if they're not made available
5 either to the public or the prosecution. On that basis we
6 would be glad to make them available to Dr. Johnson and can do
7 so, if the Court would like.
8 THE COURT: Do you see a problem with giving her the
9 letters? Let me ask that question another way. I'm curious
10 as to whether she knows the content or the subject matter of
11 the letters and is in a position to know whether the letters
12 will be helpful to the determination she has to make. Can you
13 help me on that, Mr. Denvir?
14 MR. DENVIR: Yes, Your Honor. She's fully aware of the
15 history of what brought these proceedings about. We have
16 given her detailed information about that. I'm not sure
17 whether she has yet covered all those items with Mr.
18 Kaczynski, because we're not present at those talks. But she
19 is certainly aware of that, and we can certainly make her
20 aware that those letters exist, and if she wants them, make
21 them available to her, if they're used just for purposes of
22 her consideration for her report and don't go any further.
23 THE COURT: Let me turn to the Government and get the
24 Government's input on the issue.
25 MR. LAPHAM: Your Honor, this is Steve Lapham. Your
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 Honor, it seems to me that the whole conflict here arose
2 because the defense, as I understand their argument --
3 THE COURT: Mr. Lapham, I can hear you, but it's
4 difficult.
5 MR. LAPHAM: We had the telephone turned the other way.
6 (Pause in the proceeding.)
7 MR. LAPHAM: Is that better?
8 THE COURT: A little better.
9 MR. LAPHAM: I'll try to speak up, Your Honor.
10 It seems to me the defense argument goes something like
11 this: that in part the defendant is not competent, or they
12 question his competence, because he refuses to go along with
13 the defense that they have chosen. They have kind of equated
14 his refusal with competence. I think, in assessing whether he
15 is competent, Dr. Johnson should have the letters in which he
16 expresses his reasons for not wishing to go forward with those
17 defenses. I can't state it any more clearly than that,
18 because obviously we haven't seen the letters and don't know
19 what the contents are.
20 THE COURT: But you have clearly stated the Government's
21 position that the doctor should have the letters. How about
22 Mr. Denvir's concern? Do you want to respond to that?
23 Mr. Denvir has indicated, I believe, that if I state the
24 doctor should receive the letters, he will give the doctor the
25 letters, but he is concerned that the letters are in fact
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1 under seal; he doesn't want the Government to see the
2 letters.
3 (Pause in the proceeding.)
4 THE COURT: I'm talking to you, Mr. Lapham. Maybe I
5 didn't ask a question. Do you understand the question I'm
6 seeking to ask you?
7 MR. LAPHAM: Yes, I do. I was just seeking a little
8 input from my colleagues.
9 THE COURT: I see. Well, that's the disadvantage in
10 meeting as we're meeting, telephonically. Let me know when
11 you finish caucusing.
12 MR. LAPHAM: Thank you.
13 (Pause in the proceeding.)
14 MR. LAPHAM: Your Honor, we're not seeking to find the
15 contents of the letter. What we were discussing is just that
16 if the contents of the letter have become central or relevant
17 to Dr. Johnson's conclusion, she may necessarily have to
18 divulge in some fashion the contents of those letters. But
19 we're not trying to seek the letters themselves or to know
20 what the contents are.
21 THE COURT: Let me ask this question. Let's assume that
22 the doctor finds some aspect of the letters significant to her
23 decision and then she desires to divulge, as the Government
24 has indicated, some part of the letter in her competency
25 report. It seems to me that in that situation the defense
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1 should have input on whether that aspect of the report is
2 readily given to the Government, and so perhaps we should
3 devise a procedure so that we can allow the defense to
4 litigate what aspect of that type of material is given to the
5 Government. Do you understand what I'm suggesting?
6 MR. LAPHAM: Yes, Your Honor. We have no problem with
7 that.
8 THE COURT: How about you, Mr. Denvir?
9 MR. DENVIR: Fine, Your Honor.
10 THE COURT: That means that you would have to do the
11 communication, Mr. Denvir, with Dr. Johnson and make sure that
12 your concerns are understood by her.
13 MR. DENVIR: What I would propose, Your Honor, is we
14 will advise her that these are sealed letters, that if she is
15 going to divulge the contents or feel the need to, she ought
16 to advise us and we could, perhaps, advise the Court and the
17 Government and perhaps have a hearing on that. It may be she
18 will not need to do that and she may be receiving the
19 information she needs from Mr. Kaczynski.
20 THE COURT: I think you're correct. Let's proceed,
21 then, along the lines that I've just indicated.
22 You can make the letters -- you should make the letters
23 available to her, and then you can make the communication that
24 you've just indicated, and I think that your client's rights
25 will be protected. You agree, don't you?
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1 MR. DENVIR: Yes, Your Honor.
2 THE COURT: I've got another question. I'm asking this
3 question because I want to know the status, at least the
4 defense's status or understanding of the status of Mr. Clymo's
5 involvement in the case at this point in time.
6 MR. DENVIR: Mr. Clymo, Your Honor, I believe, has
7 consulted with Mr. Kaczynski on at least one occasion. I
8 don't know what else -- what other involvement he has at this
9 particular point in time.
10 THE COURT: Do you think he should have any involvement
11 at this particular point in time?
12 MR. DENVIR: Your Honor, my sense is that Mr. Clymo
13 stands ready to assist Mr. Kaczynski as Mr. Kaczynski requires
14 it, and that he understood his appointment to extend to that
15 point, and if he had any doubts about it he would get back to
16 the Court on that matter. I think as of now he is just
17 answering questions and giving some general advice to
18 Mr. Kaczynski. Or he was, at least, over the weekend.
19 THE COURT: Mr. Denvir, I want you to control
20 Mr. Clymo's involvement. Do you have any problems with that?
21 MR. DENVIR: No, I don't, Your Honor.
22 THE COURT: Are you doing that now?
23 MR. DENVIR: We've been working very cooperatively with
24 him on that, and I don't see any problems on that at all. And
25 if we have any problems, we can bring them to the Court's
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1 attention. As of now, I think he's serving a personal
2 function, just giving some advice to Mr. Kaczynski.
3 THE COURT: You personally want him involved now?
4 MR. DENVIR: I think it's helpful, eases Mr. Kaczynski's
5 concerns about the examination and makes it likely it'll go
6 forward without any hitches. And we are talking with
7 Mr. Clymo, and I think it's working out very well, and I don't
8 think the Court needs to intervene at this point.
9 THE COURT: Okay.
10 For your information, when doing research on another
11 matter this morning, I found another Ninth Circuit decision
12 that more pointedly addresses the need to appoint a conflict
13 lawyer in a situation where the Court is conducting an inquiry
14 into the defendant's concern with trial counsel. If you're
15 interested, you can look at United States vs. Wadsworth,
16 830 F.2d 1550 at 1510 and 1511. It's a 1987 decision.
17 I've just covered everything I want to cover. How about
18 you? Anything further you wanted to cover?
19 MR. DENVIR: Nothing for the defense, Your Honor.
20 MR. CLEARY: Nothing for the Government, Your Honor.
21 THE COURT: Thank you for making yourselves available on
22 such short notice. Good-bye.
23 (Time noted: 9:11 a.m.)
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1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
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4 BEFORE THE HONORABLE GARLAND E. BURRELL, JR., JUDGE
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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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15 REPORTER'S TRANSCRIPT
16 TELEPHONIC CONFERENCE
17 TUESDAY, JANUARY 13, 1998
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Reported by: SUSAN VAUGHAN, CSR No. 9673
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SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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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
650 Capitol Mall
4 Sacramento, CA 95814
BY: ROBERT J. CLEARY (appearing via speakerphone)
5 STEPHEN P. FRECCERO (appearing via speakerphone)
R. STEVEN LAPHAM (appearing via speakerphone)
6 Special Attorneys to the
United States Attorney General
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For the Defendant:
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OFFICE OF THE FEDERAL DEFENDER
9 801 "K" Street, Suite 1024
Sacramento, CA 95814
10 By: QUIN A. DENVIR (appearing via speakerphone)
Federal Defender, Eastern District of California
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STERNBERG, SOWARDS & LAURENCE
12 604 Mission St., 9th floor
San Francisco, CA 94105
13 BY: GARY D. SOWARDS (appearing via speakerphone)
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SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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