U.S. v. Kaczynski
Trial Transcripts
[ Return to Transcripts Index ]
3757
1 SACRAMENTO, CALIFORNIA
2 THURSDAY, JANUARY 22, 1998, 8:01 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 Stephen
9 Freccero for the Government, Your Honor.
10 THE COURT: Thank you.
11 MR. CLEARY: Thank you.
12 MR. DENVIR: Quin Denvir, Judy Clarke and Gary Sowards
13 for Mr. Kaczynski, who's present in the Court.
14 MR. CLYMO: Your Honor, Kevin Clymo, who's also present
15 in Court on behalf of Mr. Kaczynski.
16 THE COURT: Thank you.
17 I thank the parties for the briefs you filed yesterday
18 by 10:00 a.m. They were helpful. Both parties assumed that
19 the judicial estoppel doctrine was intended to be applied to a
20 matter other than what it was intended to be applied. The
21 record of the proceeding at pages 11 and 12 reveal that I was
22 asking you to consider application of the judicial estoppel
23 doctrine to the December 22nd resolution. But you need not
24 argue that point.
25 Attorney Tony Serra sent a letter to my chambers that
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3758
1 apparently was intended to be passed on to Mr. Kaczynski. I
2 had my staff to forward the letter to Mr. Kaczynski through
3 his counsel. I'm going to read the letter in the record and
4 then file it so that it is part of the record.
5 The letter is dated January 20, 1998. It reads as
6 follows: "Dear Mr. Kaczynski, it appears that you are
7 receiving conflicting reports about my availability.
8 Therefore, let me reiterate. I am willing and able to
9 represent you in the jury trial in September of this year.
10 That is approximately the nine months I requested in order to
11 prepare. Although I have some other trials before then, I
12 will have ample time to devote to your case. I, of course,
13 would assemble a legal team to assist. I wish you well. I
14 can visit you at your request. Sincerely," and it's signed by
15 Mr. Serra.
16 I'm ready to cover the other issues. Do you have a
17 recommended approach?
18 MR. DENVIR: No, Your Honor.
19 THE COURT: Government?
20 MR. CLEARY: Your Honor, I guess some of that, in the
21 Government's view, may depend upon what was the subject of the
22 letter that the Government mentioned yesterday. And we know
23 in broad measure what the subject was.
24 THE COURT: Well, thank you. I'm glad you raised that.
25 I forgot about the letter and I meant to cover it. The letter
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3759
1 should not have been sent to my chambers, but defense counsel
2 had no choice. Defense counsel's client wrote the letter and
3 asked the letter be given -- asked that it be given to the
4 judge, but it is absolutely clear that that was an
5 inappropriate ex parte communication with a jurist, in my
6 opinion. I think the letter contained advocacy which should
7 be made through counsel. Mr. Kaczynski does not represent
8 himself, at least not yet, and he had no authority to set
9 forth the content of that letter in it and send it to the
10 judge. A judge is required to be impartial, and a party has
11 no right to contact the judge ex parte on the matters set
12 forth in that letter.
13 The content of the letter, though, I have identified.
14 It covered two subjects. He didn't complain about counsel.
15 He mentioned his view on the 12.2(b) notice question and his
16 desire to represent himself.
17 Do you need more information?
18 MR. CLEARY: No, that's fine, Your Honor. Thank you.
19 THE COURT: Okay.
20 MR. CLEARY: I don't want to appear that we're -- the
21 Government is switching back and forth in its positions. The
22 Court has indicated the other day, based on information that
23 the Court has that the Government does not have, that the
24 Court believes, maybe tentatively believes, that the requested
25 Faretta waiver may be untimely. And I'd like to address that
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3760
1 with the Court. I would also like to address with the Court
2 some feelings the Government has as a result of -- also
3 relating to the propriety of a Faretta waiver, based on the
4 letter, the timing of the letter that the Court received
5 yesterday. And if it's okay with Your Honor, I'll deal with
6 that first.
7 As we understand the law, enlightened in large measure
8 by what Your Honor told us the other day, in order for a
9 Faretta waiver to be effective, it has to not only be timely
10 but not offered for the purposes of delay. We are getting
11 concerned -- the Government is concerned now that, given that
12 on January 5th, the day we were about to open, the defendant
13 spoke up, at least in open court for the first time, and that
14 caused a three-day adjournment to January 8th. We came back
15 on January 8th; we were ready to open then, and again the
16 defendant spoke up and delayed the trial for what has now been
17 two weeks.
18 Then on the eve of getting ready to open a third time,
19 i.e., today, the defendant writes a letter to the Court which
20 may also create some timing questions for the Court. And not
21 knowing the details of those letters, what the Government is
22 concerned about is an --
23 THE COURT: Sir, can I interrupt you?
24 MR. CLEARY: Sure.
25 THE COURT: I thought I told you enough about the letter
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3761
1 I received yesterday so that you would understand what the
2 content is.
3 MR. CLEARY: We do, Your Honor. And I want to make my
4 comments a little more clear, then. I'm being a little too
5 vague, I think.
6 THE COURT: Well, I would like you to tell me what other
7 information you need about the letter that I received
8 yesterday so that you can understand that it's simply a letter
9 by a criminal defendant arguing two points. That's all.
10 MR. CLEARY: Okay. Let me tell you two things that
11 might be appropriate. And let me just say this, Your Honor.
12 We're not asking for disclosure at this point. I just want to
13 give you our views of points that may guide the Court in
14 making what we all recognize is a very, very difficult
15 decision for you. We're all in the same boat with you on this
16 one, Your Honor, and I'm just trying to give you some guidance
17 that obviously you can accept or reject, but I can just give
18 you our views on this.
19 There may be some things in that letter, the other
20 letters or the proceedings, the ex parte proceedings that
21 would give the Court some insight as to whether in fact the
22 defendant is doing this for purposes of delay, for purposes of
23 disrupting these proceedings. And it's difficult for us to
24 say what those things would be because you're looking at
25 objective facts and trying to interpret somebody's intent.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3762
1 But I would just suggest that to the Court that that might be
2 a way of looking at the various proceedings that have taken
3 place to make the determination if the defendant is doing this
4 for purposes of delay and disruption and his attempt to rid
5 himself of the lawyers would be inappropriate at this point.
6 So that's the one part of the test as we understand the
7 test.
8 On the timeliness, and I could perhaps be and I hope to
9 be a little more concrete on this one, Your Honor, on the
10 timeliness question, if it's helpful to the Court I can go
11 through a number of questions that I think the Court may want
12 to resolve -- you may have the information on this and maybe
13 the basis for some findings before it could make, if the Court
14 believes, as I think the Court does, that the request to
15 represent himself is untimely.
16 Can I give you those areas?
17 THE COURT: Sure.
18 MR. CLEARY: First of all, I think one of the issues
19 that the Court would want to look at is when the defendant
20 knew that the attorneys were, his attorneys were intending or
21 considering putting on a mental defect defense. When was the
22 first day that he became aware of that?
23 Secondly, as the Court's aware, the defendant had waived
24 his presence for a number of the proceedings as we discussed
25 the mental defect defense and permutations of it, preclusions
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3763
1 and those sorts of things.
2 THE COURT: Let's clarify what you are indicating now.
3 Those are pretrial proceedings.
4 MR. CLEARY: That's correct, Your Honor.
5 THE COURT: He only missed one day of trial
6 proceedings. And jury selection constitutes a trial
7 proceeding.
8 MR. CLEARY: That's correct, Your Honor.
9 THE COURT: Okay.
10 MR. CLEARY: That's right. And you're one hundred
11 percent correct: I'm talking about the pretrial proceedings.
12 If the defendant was aware, and the question is, in waiving
13 his presence at those proceedings, was he aware of what the
14 subject matter of the proceedings was? Because the point I
15 would be getting to is if he knew that and he knew what would
16 be going on, he could have come to those proceedings and could
17 have stated whatever objections he had at that point.
18 Thirdly, if the record is sufficient, and we believe it
19 is, the Court could make a finding that at least as of
20 November 25th the defendant knew that defense counsel was
21 proposing to put on a mental defect defense.
22 THE COURT: Did you say "25th"?
23 MR. CLEARY: Twenty-five, Your Honor, correct. I can
24 tell you what happened that day. We were in jury selection
25 and we ended early that day. The defendant was present, and
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3764
1 we had a discussion at that point, somewhat lengthy, as I
2 recall, about various permutations of the mental defect
3 defense. I think it was the preclusion issue. And the
4 defendant was here; he was present and clearly aware of what
5 was going on during that proceeding.
6 So I believe there's a sufficient basis in the record
7 for the Court to find that at least as of November 25 of 1997
8 the defendant was aware of that prospect and, as best we could
9 figure out the record, did not take any action until sometime
10 in -- around December 18th.
11 The record might be further supported by the Court
12 identifying the dates, or the record identifying the dates
13 written on the various letters that the defendant gave to the
14 Court. And all I'm asking for there is the dates of those
15 letters, the dates they were written.
16 Two more points. The Court may wish to make detailed
17 findings to the extent the Court -- detailing the extent to
18 which the Court explored the mental defect issue with the
19 defendant at the December 22 ex parte proceeding. And if
20 that's a sufficiently detailed finding, it may lead to the
21 conclusion that the defendant was able at that point,
22 December 22nd, to assert his Faretta rights and did not.
23 And finally, and I guess that's what this last point
24 goes to, whether the Court could made findings that the
25 defendant could have raised his Faretta rights, asserted the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3765
1 Faretta issue at any point between December 22nd and
2 January 8th.
3 And that's all I have on that score, Your Honor.
4 THE COURT: I will cover the Faretta issue first, and
5 then we can cover the other issues. I have a ruling. It will
6 take me some time to cover it, because it took me until this
7 morning to finalize it.
8 Mr. Kaczynski moves to exercise his right of
9 self-representation. A criminal defendant has a Sixth
10 Amendment constitutional right to self-representation if it is
11 timely asserted and the assertion is not a tactic to secure
12 delay. United States vs. Smith, 780 F.2d 810, 811 (9th Cir.
13 1986). Even if a defendant forfeits the unqualified right to
14 proceed pro se by not timely asserting the right or by
15 asserting the right as a tactic to secure delay, the Court
16 nevertheless has the discretion to authorize the defendant to
17 represent himself. I don't believe a Ninth Circuit case has
18 pointedly stated that, but it has been indicated in a
19 Ninth Circuit decision; it has been pointedly stated by
20 several other circuits. So I think it's the law. See, e.g.,
21 United States versus Lawrence, 605 F.2d 1321, 1325 (4th Cir.
22 1979).
23 I now address each of the issues.
24 Timeliness. In Fritz, 682 F.2d at 784, the
25 United States established a bright-line rule for the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3766
1 timeliness of Faretta requests, holding that, begin quote, "a
2 request is timely if made before the jury is impaneled unless
3 it is shown to be a tactic to secure delay," close quote.
4 Moore vs. Calderon, 108 F.3d 261, 264 (9th Cir. 1997); see
5 also United States vs. Jones, 938 F.2d 737, 742-43 (7th Cir.
6 1991), where the defendant's request to represent himself made
7 before the jury had been selected but prior to taking its oath
8 was deemed untimely. Jones cited the Ninth Circuit decision
9 in Smith, 780 F.2d 810, as support for its holding, stating
10 that, begin quote, "there the Ninth Circuit found that the
11 demand for self-representation must be made before meaningful
12 trial proceedings, such as jury selection, have occurred."
13 Jones, 948 F.2d at 743.
14 In Smith, the Ninth Circuit discusses timeliness as
15 follows. "This Court has held that a demand for self-
16 representation is timely if made before meaningful trial
17 proceedings have begun. . . . This Court has also found that
18 a request is timely if made prior to jury selection . . . or
19 if made before the jury is impaneled, unless it is made for
20 the purpose of delay."
21 Cases reaching a similar decision, a Fourth Circuit
22 decision in United States vs. Lawrence, 605 F.2d 1321-1324
23 (1979), where the Court rejected a contention that timeliness
24 is governed by when the jury is sworn. I'm going to read a
25 large portion of that decision because it explains some of the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3767
1 policies underlying the timeliness deadline.
2 I'm now quoting: "Counsel for the appellant does not
3 dispute that timeliness is a viable issue, but contends that
4 Lawrence's request was seasonable since it was voiced before
5 the jury was sworn. In making this contention, appellant
6 relies heavily on the Fifth Circuit's decision in Chapman vs.
7 United States" -- that is a case that is relied on heavily by
8 Kaczynski in this case also -- "but we think this argument
9 reads Chapman too broadly. Concededly, there is language in
10 that opinion which indicates that the request is timely if it
11 is made prior to the time that 'the jury is impaneled and
12 sworn'; however, the precise holding of that case, as stated
13 by the court, was 'that a demand for self-representation must
14 be honored as timely if made before the jury is selected,
15 absent an affirmative showing that it was a tactic to secure
16 delay.' In the course of its opinion, the court observed that
17 in delineating the procedural requirements for asserting his
18 constitutional right, 'courts must consider the fundamental
19 nature of the right and the legitimate concern for the
20 integrity of the trial process.' In this vein, the court
21 concluded, 'If there must be a point beyond which the
22 defendant forfeits the unqualified right to defend pro se,
23 that point should not come before meaningful trial proceedings
24 have commenced.' We recognized the reason for the timeliness
25 requirement in United States vs. Dunlap . . . In justifying
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3768
1 the need to timely raise the right of self-representation, the
2 courts recognized, among other things, the need to minimize
3 disruptions, to avoid inconvenience and delay, to maintain
4 continuity, and to avoid confusing the jury.'"
5 The parties disagree -- I'm finished with the quote.
6 The parties disagree on the significance of the Ninth
7 Circuit's pre-Faretta decision, United States vs. Price,
8 474 F.2d 1223 (9th Cir. 1973), in making the timeliness
9 inquiry. In Price, the defendant moved to represent himself
10 after the jury had been impaneled but before it was sworn.
11 The district judge denied the motion on an improper ground,
12 that "it believed [the defendant] did not have skills
13 adequately to defend himself." Id. at 1227. The Price court
14 did make reference to the request being made before the jury
15 was sworn but specifically said, begin quote, "We need not
16 delineate the margins of the right (referencing the timeliness
17 right) because nothing in [the] record suggests a basis for
18 qualifying it." Further, the Court stated, "The record
19 contains no hint that the motion was a tactic to secure delay,
20 and there is nothing that suggests that any delay would have
21 attended the granting of the motion."
22 It was not until the Ninth Circuit's decision in Fritz,
23 682 F.2d at 782, that the Court established a bright-line rule
24 for the timeliness of Faretta requests, which was drawn at the
25 impanelment of the jury. See Moore, 108 F.3d at 264,
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3769
1 suggesting that the "jury impanelment" rule for the timeliness
2 of a Faretta request was a "new rule" when it was announced in
3 Fritz. The Ninth Circuit has consistently applied the jury
4 impanelment rule announced in Fritz in deciding whether a
5 Faretta request is per se timely. See, e.g., Moore, 108 F.3d
6 at 264; Savage, 924 F.2d 1459, 1463 note 7 (9th Cir.); United
7 States vs. Smith, 780 F.2d 810, 811 (9th Cir. 1986); Armant,
8 772 F.2d at 555-56 (9th Cir.). Thus, the "jury impanelment"
9 rule controls the question of whether Kaczynski's request was
10 per se timely. Price does not affect this analysis.
11 Here, the jury was impaneled on December 22, 1997, the
12 date both sides exercised that peremptory strikes and jurors
13 were selected to hear the case. United States vs.
14 Juarez-Fierro, 935 F.2d at 675 (5th Cir. 1991), where the
15 Court states, "A jury is not 'empaneled' until all parties
16 have exercised their strikes, and twelve jurors are selected
17 to hear the case"; Wedalowski, 572 F.2d at 74 (2d Cir. 1978),
18 where the Court states the word "empaneled" is a synonym for
19 the word "selected"; Black's Law Dictionary, 677, 5th ed.
20 1979, defining "impanel" as "the act of the clerk of the court
21 in making up a list of jurors who have been selected for the
22 trial of a particular case. All the steps of ascertaining who
23 shall be the proper jurors to sit in the trial of a particular
24 case up to the final formation."
25 Kaczynski's first unequivocal request for
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3770
1 self-representation occurred on January 8, 1998, seventeen
2 days after the jury had been impaneled. Although the subject
3 of self-representation was discussed several times over the
4 course of the ex parte in camera proceedings, Kaczynski never
5 made a statement that could even remotely be construed as an
6 unequivocal request to represent himself. A request to
7 proceed pro se may not be granted unless it is unequivocal.
8 Adams vs. Carroll, 875 F.2d at 1444 (9th Cir. 1989). Thus,
9 Kaczynski's self-representation request was not per se
10 timely. Fritz, 682 F.2d at 784.
11 Even assuming that I'm wrong and that the request is
12 deemed timely by the Ninth Circuit, the question becomes
13 whether the record contains evidence that the motion was a
14 tactic to secure delay or whether there is anything "that
15 suggests that any delay would have attended the granting of
16 the motion." Price, 474 F.2d at 1227. Here, there is ample
17 evidence of both. Although Kaczynski did not accompany his
18 request to proceed pro se with a request for a continuance,
19 granting Kaczynski's request at this stage of the proceedings
20 will undoubtedly result in a substantial impediment to the
21 orderly process of this capital case. There are a large
22 number of technical exhibits necessitating expert testimony
23 expected in the guilt phase; further, not including exhibits
24 relating to the uncharged bombs, the Government expects to
25 introduce over 1300 exhibits at trial.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3771
1 As the Government's attorney stated during the hearing
2 on January 20th, 1998, begin quote -- this is in the record at
3 page 3, lines 17 to 4, line 2: "I can tell you, Your Honor,
4 there are thousands of pages of exhibits. Hundreds of
5 photographs. I mean, there -- there's a lot of evidence. I
6 don't know how much of it the Court wants me to detail, but we
7 do share your view that it would be untenable, if this is the
8 Court's view -- it is untenable, I think, to request Mr. Serra
9 to come into the case, given his schedule. There is a wealth
10 of matter he'd have to get on top of . . . a wealth of
11 material he would have to grasp in order to be able to
12 represent the defendant in this case."
13 Given that Kaczynski only made the decision to proceed
14 pro se two weeks ago on the second continued date for the
15 opening statements and spent last week participating in
16 competency hearing -- I'm now quoting from the decision of
17 State vs. Stinson, 940 P.2d at 1274, note 16 (Wash. 1997):
18 "It is almost impossible to conceive the defendant
19 could . . . immediately assume . . . his own defense without
20 considerable delay for him to prepare himself to conduct an
21 adequate defense." Cf. the Ninth Circuit's decision in Smith,
22 780 F.2d at 811, note 1, when the Ninth Circuit stated that
23 "Smith points out that he did not request a continuance.
24 However, Smith apparently made his request to represent
25 himself with the belief that he could do preparatory legal
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3772
1 research. This would require a continuance."
2 In determining whether the defendant's request to defend
3 himself is a tactic to secure delay, the Court considers, in
4 addition to the effect of delay already considered, whether
5 the events preceding the motion are consistent with a
6 good-faith assertion of the Faretta right and whether the
7 defendant could reasonably be expected to have made the motion
8 at an earlier time. Fritz, 682 F.2d at 784-85; Smith at 812.
9 Any delay caused by Kaczynski's belated request to
10 represent himself would significantly enhance the risk that
11 jurors will be unable to continue to serve in this case. In
12 assessing their availability to serve, the jurors undoubtedly
13 considered the representations made to them regarding the
14 estimated length of trial. Those estimates were based on
15 Kaczynski being represented by counsel that have spent a year
16 and a half preparing the case for trial.
17 The effect of having to select a new jury for this case
18 cannot be understated. Trial proceedings in this action
19 commenced with jury selection on November 12th, 1997. Because
20 of the considerable pretrial publicity and the fact that this
21 is a capital case, the jury selection process was long and
22 arduous. Six hundred jurors were summoned to fill out
23 comprehensive juror questionnaires. Approximately 450 jurors
24 filled out the questionnaires, questionnaires containing
25 questions revealing that Kaczynski's mental state and
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3773
1 background are at issue. Because of the special concern about
2 pretrial publicity and death qualification, 182 jurors were
3 brought into this courtroom for voir dire, and they had to be
4 individually questioned because of the concerns about pretrial
5 publicity. After a voir dire process that lasted 16 days,
6 jury selection was completed with final peremptory challenges
7 being exercised on December 22, 1997.
8 The second consideration is whether the events preceding
9 Kaczynski's request to represent himself are consistent with a
10 good-faith assertion of the right of self-representation.
11 Kaczynski has already delayed the start of the trial twice by
12 raising issues relating to his representation just before
13 opening statements were set to begin. This is unacceptable,
14 since it is now clear that his reason for doing this is
15 patently unreasonable. He thought that he could abort his
16 lawyers' defense strategy of portraying him as mentally ill
17 during trial by that tactic. The reason why it's patently
18 unreasonable is because he had actual knowledge that his
19 lawyers obviously intended to present mental status defense
20 evidence. He should have received that knowledge during the
21 voir dire process, and I firmly believe that he did, in fact,
22 received that knowledge during the voir dire process. And he
23 clearly received it on the date that the Government has
24 stated, which is November 25, 1997.
25 On January 5, 1998, he indicated that he wanted to
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3774
1 replace his current counsel with attorney Tony Serra, when he
2 knew about Tony Serra's availability way before that date; he
3 knew that Tony Serra had offered pro bono services way before
4 that date. So it's clear to me that if he truly disagreed
5 with his counsel's defense strategy, he could have made the
6 request to have Tony Serra represent him much earlier. The
7 first time I knew that Tony Serra had made an offer, a
8 pro bono offer to represent Mr. Kaczynski, was during the
9 ex parte in camera proceeding on January 5, 1998.
10 When a criminal defendant can afford to retain counsel
11 through his own means, if that criminal defendant requests a
12 substitution of counsel, the judge has to stop everything,
13 under Ninth Circuit law, and evaluate the request and how it
14 will affect the proceedings. I deem that when a criminal
15 defendant is able to find a lawyer that will represent him on
16 a pro bono basis, the same law applies, and that's the law I
17 applied.
18 I indicated that I just finalized my thoughts this
19 morning, so it's going to take me a moment to pause to look at
20 my notes, and then I will continue with my ruling.
21 (Pause in the proceeding.)
22 THE COURT: When I return to the ruling, I will disclose
23 certain aspects of ex parte in camera proceedings. And I do
24 so under the authority of Evans vs. Raines, 800 F.2d 884, 887,
25 note 4 (9th Cir. 1996), where the Ninth Circuit reveals that
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3775
1 the attorney-client privilege should not be used "as a
2 'procedural trap play that would block development of the
3 plain truth. . . . '"
4 Mr. Kaczynski first raised the issue of
5 self-representation in a letter submitted under seal to the
6 Court on December 18, 1997. In that letter he indicated three
7 possible options that could satisfactorily resolve the
8 conflict he was having with his counsel: number one, to
9 proceed with current trial counsel under certain conditions;
10 number two, to obtain a substitution of counsel; and, number
11 three, to represent himself, "preferably with an attorney
12 appointed to provide [him] with advice." See Letter to the
13 Court from Theodore Kaczynski dated December 17, 1998 [sic],
14 filed under seal. As the letter enlisted the help of the
15 Court in resolving the conflict he was having with his
16 attorneys, an ex parte in camera conference was arranged for
17 December 19, 1997.
18 At the December 19, 1997 ex parte in camera conference,
19 Kaczynski stated that the conflict was potentially resolved by
20 a proposal submitted to him by his lawyers that he described
21 as, begin quote, "very generous," close quote, and that he
22 wanted to consider it over the weekend. During the
23 December 22, 1997 meeting, Kaczynski focused on finding an
24 agreement acceptable to him that would allow him to continue
25 with his current counsel. When Kaczynski was asked about the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3776
1 other "options" mentioned in his earlier letter, Kaczynski
2 explicitly stated that he did not want to represent himself
3 and later elaborated that his overall goal was to continue
4 with current counsel under certain conditions.
5 Eventually those conditions were embodied in an
6 agreement which was reached on December 22, 1997 with the
7 following terms: number one, defense counsel would withdraw
8 the 12.2(b) notice and would not present any mental health
9 expert testimony at the guilt phase; number two, defense
10 counsel would retain control over the presentation of mental
11 health evidence, both from experts and non-experts, in the
12 penalty phase; and number three, Kaczynski would proceed to
13 trial with his current lawyers. See December 22, 1997, draft
14 of transcript at 39; it was unproofed draft.
15 On January 5, 1998, the Court convened an additional
16 ex parte in camera proceeding after Kaczynski interrupted the
17 commencement of the trial with a request to discuss
18 attorney-client issues. These proceedings continued again on
19 January 7, 1998. During the ex parte in camera conferences,
20 Kaczynski stated that a conflict with his counsel had again
21 arisen because counsel intended to portray him as mentally ill
22 in the guilt/innocence phase of the trial. He claimed that he
23 interpreted the agreement reached on December 22, 1997 as
24 including a promise that his attorneys would present no mental
25 status evidence of any kind in the guilt phase of the trial.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3777
1 Therefore, he felt his attorneys had breached the agreement by
2 planning to present evidence of Kaczynski's mental status in
3 that phase.
4 I initially credited Kaczynski's perspective on the
5 agreement, noting that it might be unclear to a non-lawyer
6 that withdrawal of the 12.2(b) notice did not entail
7 withdrawal of the entire mental status defense. However, upon
8 reviewing the record, it is clear that Kaczynski's main
9 dispute with his lawyers prior to December 22, 1997 related to
10 their use of mental health expert evidence. And that's
11 exactly what triggered the event the Government brought to my
12 attention during the proceeding on November 25, 1997. I no
13 longer find credible his position and fail to see any
14 bona fide reasons justifying the approach he has taken.
15 After Kaczynski was given an opportunity to consult with
16 attorney Kevin Clymo, a lawyer who was kind enough to serve as
17 conflicts lawyer on behalf of the Court to assist the Court in
18 trying to resolve some problems, Clymo stated that he did not
19 believe Kaczynski wanted to represent himself. Kaczynski then
20 stated, begin quote, "I would agree, Your Honor, that the
21 possibility of change of representation or representing myself
22 is still very, very nebulous. There's no definite intention
23 there; it's just a possibility that may arise after present
24 discussions continue." See January 5, 1998 unproofed version
25 of Reporter's Transcript at 3585-86.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3778
1 Finally, after prolonged consultation with Clymo, the
2 following discussion occurred during the January 7, 1998
3 ex parte in camera proceedings. I believe this is part of the
4 public record, filed January 7, 1998, Reporter's Transcript at
5 pages 5 and 6:
6 "THE DEFENDANT: Your Honor, it
7 appears that I don't have much choice as to
8 what I want to do. Mr. Clymo has agreed
9 with you that other counsel would probably
10 do the same thing as my present counsel,
11 and, consequently, it seems that I have no
12 other alternatives, and so far I may as
13 well go ahead with present counsel, not
14 because I want to but simply there are no
15 better alternatives.
16 "THE COURT: You don't want to
17 represent yourself? That's an alternative.
18 I don't advise it, but if you want to, I've
19 got to give you certain rights.
20 "THE DEFENDANT: Your Honor, if this
21 had happened a year and a half ago, I would
22 probably have elected to represent myself.
23 Now, after a year and a half with this, I'm
24 too tired, and I really don't want to take
25 on such a difficult task. So far I don't
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3779
1 feel I'm up to it, taking that challenge at
2 the moment, so I'm not going to elect to
3 represent myself."
4 Kaczynski's conduct is not consistent with a good-faith
5 assertion of Faretta rights. See United States vs. Flewitt,
6 874 F.2d 669, 675 (9th Cir. 1989), where the Court states, "A
7 defendant . . . requesting to proceed pro se . . . is subject
8 to the same good-faith limitations imposed on lawyers as
9 officers of the Court." "Once the defendant has elected
10 either to waive appointment, appointed counsel, or to waive
11 the constitutional right to defend himself, he does not have
12 an unlimited right to thereinafter change his mind and seek
13 the other path of representation." United States vs. Reddeck,
14 22 F.3d 1504, 1510-11 (10th Cir. 1984). Rather, before a
15 Court permits a belated change of heart, it should determine
16 whether it is justified with bona fide reasons. Fritz, 682
17 F.2d 784-785.
18 Here, Kaczynski's complaint of his lawyers is that they
19 deceived him by planning to portray him as mentally ill and
20 adducing mental health non-expert evidence in the guilt phase
21 of the trial. However, Kaczynski was well aware that evidence
22 of his mental status would be presented during the trial.
23 Whatever ambiguity existed as to the guilt phase portion of
24 the December 22nd, 1997 agreement, there can be no mistake
25 that Kaczynski knew and agreed that evidence of his mental
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3780
1 status could be presented in the penalty phase.
2 Further, during voir dire it is abundantly clear to all
3 observers, including Kaczynski, that his trial counsel's
4 strategy was to select jurors they hoped would be receptive to
5 mental health and background evidence. This is evinced by
6 examples in the transcript covering the following voir dire
7 proceedings: November 13, 1997, Reporter's Transcript -- I
8 will hereinafter just give the page without stating
9 "Reporter's Transcript" -- 275-277, where defense counsel
10 queried Juror 18's opinion about mental health professionals
11 generally, whether the juror believed mental health
12 professionals have a good sense of people, and whether the
13 juror would have problem considering psychological
14 difficulties in mitigation in the sentencing phase. The juror
15 understood that such questions whether the person was sane at
16 the time of a criminal act; and 361-362, where defense counsel
17 asked Juror 29 whether "psychological or mental evidence" has
18 anything "to do with whether . . . the person is
19 guilty. . . . "; November 17, 1997, 524-526, where defense
20 counsel asked Juror 37 whether the juror would consider
21 psychiatric problems of an individual despite a guilty finding
22 of an intentional killing and about weighing mental health
23 evidence; November 18, 1997, 776, where defense counsel asked
24 Juror 58 concerning the juror's opinion "about psychologists,
25 psychiatrists or other mental health professionals";
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3781
1 November 19, 1997, 968, where defense counsel asked Juror 74
2 whether anything "such as the person's background, psychiatric
3 state . . . that would make [the juror] think differently
4 about the sentence"; November 20, 1997, 1037-1043, where
5 defense counsel asked Juror 82 whether the juror would be open
6 during the sentencing to defense evidence "about the
7 defendant, about his background, about anything that they felt
8 would be a reason why the juror might select life instead of
9 death"; November 20, 1997, 1097, where defense counsel assumed
10 that Juror 85 would be open to thoughts of "a psychiatrist or
11 a psychologist"; December 3, 1997, 2423, where defense counsel
12 explained to Juror 165 that the defense "would put on
13 mitigating evidence, which is . . . any evidence" about
14 Mr. Kaczynski or about the crimes that pointed to life;
15 December 9th, 1997, 3216, where defense counsel asked
16 Juror 212, if you found "there was no mental problem . . . is
17 there any evidence that could leave you to let him off with a
18 life sentence instead of death?" Then defense counsel asked
19 the juror, "Wouldn't information about the defendant and maybe
20 how he grew up and what, as you say, drove him to it," weigh
21 into the decision between life and death if he's guilty?"
22 As observed in United States vs. Chapman, 553 F.2d at
23 894 (5th Cir. 1977), it is clear that a defendant, begin
24 quote, "may acquire disconcerting information," close quote,
25 during voir dire about the substance or manner of his
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3782
1 counsel's planned defense. I find that occurred here. I saw
2 Kaczynski actively interacting with the defense team during
3 voir dire, and he exhibited approval of pro-life jurors and
4 those appearing to respond favorably to his counsel's
5 questions. He knew what his counsel were doing to shape the
6 jury so they ended up with a jury receptive to the mental
7 status defense and hopefully, from their perspective, a jury
8 that was pro-life.
9 Thus, despite his knowledge that mental status evidence
10 would be presented during trial, Kaczynski seeks to discharge
11 his counsel because of a dispute over the precise moment at
12 which some of that evidence will be presented. This is a
13 timing issue that he raises which has no foundation in
14 reason. He knows it will be presented; he just desires to
15 control the precise moment when it will be presented. That
16 makes no sense. It is unreasonable to assume he can interfere
17 with trial counsel's discretion on this matter in light of the
18 December 22, 1997 agreement showing the technical correctness
19 of their interpretation of that agreement.
20 When the Court asked Kaczynski why it was acceptable to
21 him to present evidence in the penalty phase but not in the
22 guilt phase, he responded -- and since this is sealed, I want
23 to look at the response so I only disclose what is essential
24 to my ruling; however, the reviewing court should consider the
25 whole response.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3783
1 (Pause in the proceeding.)
2 THE COURT: This is in the January 7, 1997 Reporter's
3 Transcript, the unproofed version, at 3621-22. Quote: "I
4 didn't want to break up the defense team for obvious reasons.
5 There are plenty of reasons for not doing that. And so I was
6 satisfied with what was, to me, a symbolic victory, even
7 though it didn't completely settle the issue. It now appears
8 that symbolic victory is much less a victory than I thought it
9 was."
10 Thus, it is clear that Kaczynski interrupted the trial
11 twice merely to preserve a "symbolic victory" that is of no
12 legal consequence. This asserted justification is so
13 unreasonable in light of the December 22 resolution that it is
14 an obvious attempt by him to purposefully delay the
15 proceeding. It is pellucid that he knew mental health
16 evidence would be presented during this trial, and I construe
17 his action as a deliberate attempt to manipulate the trial
18 process for the purpose of causing delay. Kaczynski has
19 unreasonably placed a "symbolic victory" that really has no
20 bearing on the presentation of mental health evidence at trial
21 over the orderly and timely administration of justice. The
22 integrity of the justice process would be undermined if such
23 unreasonable personal positions could serve as a basis for
24 undermining trial proceedings.
25 Finally, if Kaczynski desired to represent himself, he
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3784
1 certainly could have asserted that right earlier. Despite his
2 awareness that his lawyers were planning to portray him as
3 mentally ill at trial, he consistently and unequivocally
4 assured the Court that he did not wish to proceed pro se. See
5 Smith 780 F.2d at 812, where the Court states -- it's not a
6 quote -- where the Court found that a belated request was not
7 justified where all the reasons asserted were known to the
8 defendant prior to trial. Instead, Kaczynski waited until the
9 continued date for opening statements to spring his request
10 for self-representation on the Court, thereby causing further
11 delay. Therefore, even if Kaczynski's request was timely, his
12 request is denied because his purpose was to delay the trial.
13 Notwithstanding the foregoing, the question remains
14 whether the Court, in the exercise of its discretion, should
15 nevertheless permit Kaczynski to represent himself. The
16 Ninth Circuit has not pointedly addressed what factors govern
17 a district judge's discretion when deciding a self-
18 representation issue in this context. Some circuit courts
19 addressing this issue have held that district courts should
20 balance "whatever prejudice is alleged by the defense against
21 such factors as disruption of the proceedings, inconvenience
22 and delay, and possible confusion of the jury." Fulford,
23 692 F.2d at 362 (5th Cir. 1982); Lawrence, cite already given,
24 at 1321. The trial court may also consider "the reason for
25 the request [and] the quality of counsel representing the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3785
1 party." Sapienza, 534 F.2d 1007, 1010 (2d Cir. 1976). "Trial
2 courts must necessarily be wary of last-minute requests to
3 change counsel lest they impede the prompt and efficient
4 administration of justice." Moreno, 717 F.2d 171, 176
5 (5th Cir. 1983).
6 Even though Kaczynski has no automatic right, at this
7 point, to self-representation, because of the importance of
8 the constitutional concerns implicated by the
9 self-representation doctrine I still consider whether I should
10 exercise my discretion by granting his request. This is
11 because of the paramount principle at the heart of Faretta,
12 which recognizes the freedom of "the accused to personally
13 manage and control his own defense in a criminal case."
14 Faretta, 422 at 816.
15 The brief filed by the defense yesterday indicates that
16 if Kaczynski abandons the mental health defense, he will
17 forego the only defense that is likely to prevent his
18 conviction and execution. See defendant's brief at page 9.
19 That ill-advised objective is counterproductive to the
20 justice sought to be served through the adversary judicial
21 system, which is designed to allow a jury to determine the
22 merits of the defense he seeks to abandon. If Kaczynski's
23 trial lawyer is correct, by allowing Kaczynski to abandon the
24 defense would in effect allow him to use, begin quote, "the
25 system of criminal justice . . . as an instrument of
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3786
1 self-destruction." Faretta, 422 U.S. at 840, dissenting
2 opinion.
3 Further, in light of this position taken by his trial
4 counsel and considering their extended period of representing
5 Kaczynski, a contrary ruling risks impugning the integrity of
6 our criminal justice system, since it would simply serve as a
7 suicide forum for a criminal defendant. Cf. Charles,
8 72 F.3d at 412.
9 For all of the stated reasons, Kaczynski's motion is
10 denied.
11 I'm going to reach an additional issue.
12 MR. DENVIR: Your Honor, I wonder if we could approach
13 the court at sidebar.
14 THE COURT: Yes.
15 (The following discussion was had at the bench.)
16 MR. DENVIR: Your Honor, Mr. Kaczynski would like to
17 offer to the Government that he would plead guilty to these
18 charges and the New Jersey charges if the Government would
19 withdraw the death penalty notice. We have not been
20 authorized to make that offer before; the Government has not
21 had an opportunity to evaluate it. What we would hope, what
22 we're asking the Court to do, is give the Government an hour
23 to see if that can be done.
24 THE COURT: I'm not going to grant a continuance.
25 MS. CLARKE: Just an hour.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3787
1 THE COURT: No.
2 MS. CLARKE: Judge, we can resolve this case.
3 THE COURT: You'd better do it before an hour. I would
4 have to cover the continuance factors if you want a
5 continuance. This trial is going to start at 10:00 o'clock
6 unless continuance factors favor a continuance.
7 MS. CLARKE: Could the court break now?
8 THE COURT: I need to cover one more matter.
9 MR. CLEARY: Let me ask one question.
10 Unconditional plea?
11 MR. DENVIR: Unconditional. We've never been able to do
12 that before. We believe that this may be able to resolve the
13 whole manner in a very fair and just way.
14 THE COURT: All right. This is what I'll do. We have a
15 few other issues to cover. The jury is scheduled to be here
16 at 10:00. I will just adjourn now, and at 10:00 o'clock I
17 will start the jury selection -- we'll swear in the jury and
18 we will proceed. And so I will cover the other issues that I
19 need to cover at the first break.
20 MS. CLARKE: Thank you, Your Honor.
21 MR. DENVIR: Thank you, Your Honor.
22 (The proceeding resumed as follows in open court.)
23 THE COURT: The parties requested at sidebar that I
24 postpone this proceeding so that they can discuss certain
25 matters. They asked me to do that for an hour. In rather
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3788
1 strong terms I indicated to them that I was not in favor of
2 postponing the trial. But as far as covering the other
3 matters I need to cover, I can wait until later to cover the
4 other matters. I did indicate that if they were asking for a
5 continuance, I would have to consider the continuance
6 factors.
7 But at this moment the jury is scheduled to be in the
8 courtroom at 10:00 o'clock. I will return at 10:00 o'clock.
9 And at that point in time I plan on having my deputy clerk to
10 administer the oath to the jury and proceeding with the trial.
11 Until 10:00 o'clock, Court's in recess.
12 (A recess was taken.)
13 MR. CLEARY: Your Honor, may we approach sidebar again?
14 THE COURT: Does it have to be covered at sidebar,
15 whatever you want to cover?
16 MR. CLEARY: Could we start at sidebar? And if the
17 Court wants to come into open court, we'd be happy to speak in
18 open court.
19 THE COURT: Okay.
20 MR. CLEARY: Thank you.
21 (The following discussion was had at the bench.)
22 MR. CLEARY: Your Honor, the parties have discussed the
23 plea offer that the attorneys just made. We have an agreement
24 in principle that will dispose of both this case and the
25 New Jersey case. We just simply need time to draft up the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3789
1 papers. No one wants to have any potential chance of error in
2 the plea. We have to do Rule 20 pleas to roll the New Jersey
3 case into this case, but I'm confident -- I can assure the
4 Court we have an agreement and we just need time to get the
5 papers done, to get them done accurately, and this case and
6 the New Jersey will be over.
7 THE COURT: How about the jury?
8 MR. DENVIR: How much time do you feel that we need?
9 MR. CLEARY: I know you're pressed for time and you
10 don't want to delay, but if we can have two hours I can
11 guarantee we will have all the paperwork done with finality
12 and we won't have what we're all concerned about: rushing
13 into this and drafting paperwork in a rush and errors in the
14 paperwork. This is a complicated plea and complicated case.
15 We have to make sure it's done right.
16 In terms of the agreement between the parties, I don't
17 think there's any doubt or mistake there's a deal here. But
18 it's the written details that we have to get done correctly.
19 Is that fair?
20 MR. DENVIR: It is, Your Honor. And, Your Honor, we
21 would do the Rule 20 and Rule 11 today, we would propose,
22 later today, as soon as the papers -- if the jury was excused
23 until sometime like 2:00 o'clock, but at that time they could
24 be discharged because you will have had a plea on these
25 charges and the New Jersey charges.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3790
1 THE COURT: We can't do that. We've assured them that
2 they would only be in session until 1:00.
3 MR. SOWARDS: Do you need two hours?
4 MR. CLEARY: Will two hours work?
5 MR. FRECCERO: We can do it in two hours, I think.
6 MR. DENVIR: Your Honor, the fairest thing for the jury
7 may be to release them until tomorrow, because this is going
8 to happen and it will happen today, and then they can be
9 discharged.
10 Isn't that your feeling?
11 MR. CLEARY: Yes.
12 THE COURT: Bring them in at 8:00 o'clock?
13 MR. DENVIR: Or just have them on call, because I think
14 we're going to resolve everything.
15 THE COURT: Okay. Your thought is, if the case resolves
16 today as you've indicated, there would be no need to call the
17 jury back in by phone?
18 MR. DENVIR: That's correct.
19 THE COURT: So I need to communicate with them now.
20 MR. DENVIR: Right.
21 MR. CLEARY: Your Honor, the only reason I want to do
22 this at sidebar is if this becomes public, there will be a
23 media frenzy that would be disruptive to what we want to
24 accomplish. So if we could keep this at sidebar, adjourn for
25 two hours, and then announce it.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3791
1 THE COURT: I need your assistance in formulating
2 communication that can be given to the jury. Let me make a
3 note.
4 (Pause in the proceeding.)
5 THE COURT: Okay. This is what I have thus far
6 (indicating). And I need some assistance in filling in the
7 blanks.
8 (All counsel examine document.)
9 THE COURT: (Indicates.)
10 MS. CLARKE: Tell them "because of additional
11 proceedings we won't need your services until tomorrow"?
12 MR. CLEARY: That's fine.
13 (Pause in the proceeding.)
14 THE COURT: I'm going to say what I just showed you.
15 The only question is whether we need to say anything else.
16 MR. FRECCERO: You can say that both parties have
17 requested -- I mean, that both parties have indicated, that
18 this is not -- that both parties have requested this --
19 MR. DENVIR: Yeah, these additional proceedings.
20 Is that appropriate, Bob?
21 MR. CLEARY: Yeah, it's fine.
22 MS. CLARKE: Yeah.
23 THE COURT: Just so it's clear it isn't --
24 MS. CLARKE: Us.
25 MR. FRECCERO: Us.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3792
1 MR. DENVIR: Maybe thank them for their patience.
2 THE COURT: (Nods head up and down.)
3 (Pause in the proceeding.)
4 THE COURT: I think that's it. (Indicates.) Did you
5 see what I wrote?
6 MS. CLARKE: Yes, Your Honor.
7 MR. CLEARY: Yes, Your Honor.
8 MR. DENVIR: Yes, Your Honor.
9 THE COURT: Do you approve?
10 MS. CLARKE: Yes, Your Honor.
11 MR. DENVIR: Yes, Your Honor.
12 MR. CLEARY: Yes, Your Honor.
13 (The jury entered the courtroom. The proceeding resumed
14 in open court.)
15 THE COURT: Are we missing a juror?
16 (Discussion off the record between the clerk and the
17 Court.)
18 THE COURT: We'll let the record reflect that we're
19 missing a juror, but since you're not in your assigned seats,
20 we don't know what juror's missing.
21 Ladies and gentlemen, there have been significant
22 constitutional principles involved in this case that delayed
23 the commencement of trial twice. When things like that
24 happen, neither the parties nor the trial judge is at fault.
25 Our system is designed to observe our Constitution, and
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3793
1 there's legal precedent that must be followed when we do
2 that. And that's exactly what I believe we've been doing, and
3 that's why we've had delays.
4 That may cause you to question whether your
5 participation in this process is meaningful. Believe me, it
6 is extremely important and it is meaningful. Without you,
7 this process would not work.
8 (A juror entered the courtroom.)
9 THE COURT: Are you a juror?
10 JUROR: Yes, I am.
11 THE COURT: Glad you could join us.
12 I was telling the other jurors that there are
13 constitutional, important constitutional principles that have
14 caused this case to be delayed twice, and I was also informing
15 the other jurors that neither the parties nor the judge can be
16 faulted for what we do. What we do is a significant function
17 in our constitutional democracy. Someone else's perspective
18 of the pace of justice is irrelevant. What is relevant is
19 that we follow Ninth Circuit and Supreme Court precedent and
20 the statutes that govern a criminal trial in the manner in
21 which we believe we are supposed to observe those principles.
22 And I firmly believe that's exactly what we have done in this
23 case.
24 And I've indicated -- and I'm not sure at what point you
25 came in; I'm going to repeat it just in case you weren't
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3794
1 present when I told this to the other jurors -- I don't want
2 you to think that your participation is not meaningful. It is
3 extremely meaningful. It is essential that we have a jury
4 ready and able to serve on this case. And you are serving at
5 this very moment. I hope that you haven't been mindful of
6 media coverage. You are still to observe those admonitions
7 until you have been discharged from this case. And you aren't
8 being discharged yet.
9 Both parties have requested -- it's a joint request --
10 that I allow them to conduct additional proceedings today. I
11 just found out about the request at 9:00 a.m. this morning.
12 Obviously, if I had known it was going to be made, I would
13 have told you. But I didn't know. I have listened to their
14 request, and I have acquiesced that they can, in fact, have
15 time to conduct additional proceedings. And as far as you are
16 concerned, we're going to release you for today and ask that
17 you be available for tomorrow.
18 I thank you very much. I thought that I should bring
19 you in personally, explain the situation. So until tomorrow
20 you are released. Thank you.
21 (The jury left the courtroom.)
22 THE COURT: Let the record reflect the jury has exited
23 the courtroom.
24 Any objections to the manner in which I communicated
25 with the jury?
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3795
1 MS. CLARKE: No, Your Honor.
2 MR. CLEARY: None from the Government.
3 THE COURT: We're going to adjourn until 12:15, at which
4 time there will be further proceedings in this case. Is that
5 a good time, 12:15?
6 MR. CLEARY: Yes, Your Honor.
7 MR. DENVIR: Yes, Your Honor. Thank you.
8 (A recess was taken.)
9 THE CLERK: Calling criminal case S-96-259,
10 United States vs. Theodore Kaczynski.
11 THE COURT: Please state your appearances for the
12 record.
13 MR. CLEARY: Robert Cleary, Steven Lapham and Stephen
14 Freccero for the Government.
15 THE COURT: Thank you.
16 MR. CLEARY: Thank you, Your Honor.
17 MS. CLARKE: Judy Clarke, Quin Denvir and Gary Sowards
18 for Mr. Kaczynski.
19 THE COURT: Thank you.
20 MR. CLYMO: I'm also still here, Your Honor. Kevin
21 Clymo.
22 THE COURT: Thank you. I received a written memorandum
23 of a plea agreement which the Court understands represents the
24 plea agreement of the parties; is that correct?
25 MS. CLARKE: That is correct, Your Honor.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3796
1 THE COURT: And I want my deputy clerk to please
2 administer the oath to Mr. Kaczynski.
3 (Discussion off the record between Mr. Kaczynski and
4 Ms. Clarke.)
5 THE COURT: You don't have to stand. It's okay.
6 (The defendant was sworn.)
7 THE COURT: Mr. Kaczynski, do you understand that,
8 having been sworn, your answers to my questions would be
9 subject to the penalties of perjury or of making a false
10 statement if you do not answer truthfully?
11 THE DEFENDANT: Yes, I understand that.
12 THE COURT: It is my understanding through a
13 communication I just had with counsel that you wish to change
14 previously entering pleas.
15 Before accepting your guilty pleas, there are a number
16 of questions I will ask you to assure that it is a valid
17 plea. If you do not understand any of the questions or at any
18 time wish to consult with counsel, please say so, since it is
19 essential to a valid plea that you understand each question
20 before you answer it.
21 Do you understand what I just said?
22 THE DEFENDANT: Yes, I understand, Your Honor.
23 THE COURT: You need not seek my permission to speak to
24 your lawyers. If you desire to speak to your lawyers during
25 this process, you can simply communicate with your lawyers.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3797
1 I'll recognize that you're speaking to your lawyers and I
2 won't expect to you respond to my question until you've
3 finished that communication. You understand the liberty you
4 have to speak to your lawyers at with will throughout this
5 proceeding?
6 THE DEFENDANT: Yes, Your Honor. I understand that.
7 THE COURT: I'm informed that you wish to change the
8 plea you have previously entered to a plea of guilty. Is that
9 correct?
10 THE DEFENDANT: Yes, Your Honor.
11 THE COURT: Is your plea being made pursuant to a plea
12 agreement of any kind?
13 THE DEFENDANT: Yes, Your Honor.
14 THE COURT: Your case in the United States District
15 Court, District of New Jersey, cannot be handled in this court
16 unless you wish to plead guilty or nolo contendere. Do you
17 understand that if you allow that case to be handled in this
18 court, you are agreeing to plea guilty or nolo contendere,
19 waive proceedings in the United States District Court for the
20 District of New Jersey in which the crimes were allegedly
21 committed, and you're allowing those crimes to be proceeded
22 against you in this court? Do you understand that?
23 THE DEFENDANT: Yes, sir. I understand that.
24 THE COURT: Do you understand that you have the right to
25 be tried in the district where the crimes are alleged to have
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3798
1 been committed?
2 THE DEFENDANT: Yes, Your Honor.
3 THE COURT: And you understand that you cannot be
4 convicted or sentenced in this court unless you give your
5 consent freely, as to those crimes?
6 THE DEFENDANT: Yes, Your Honor.
7 THE COURT: If you do not consent to be proceeded
8 against in this Court, you may be proceeded against in the
9 district in which the crimes were allegedly committed. Do you
10 understand that?
11 THE DEFENDANT: Yes, Your Honor.
12 THE COURT: Has a waiver form been filed or prepared?
13 MR. DENVIR: Yes, Your Honor. Mr. Kaczynski has
14 executed a consent to transfer of case for plea and sentence
15 under Rule 20, and Ms. Clarke and I have both witnessed it and
16 signed it.
17 The Government now has it for approval.
18 (Pause in the proceeding.)
19 MR. DENVIR: It's been executed on behalf of the
20 United States Attorney for the District of New Jersey and for
21 the Eastern District of California.
22 (Pause in the proceeding.)
23 THE COURT: The document has been fully executed. I
24 will direct that it be filed.
25 Mr. Kaczynski, please state your full and true name for
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3799
1 the record.
2 THE DEFENDANT: Theodore John Kaczynski.
3 THE COURT: How old are you?
4 THE DEFENDANT: Fifty-five years old.
5 THE COURT: How far did you go in school?
6 THE DEFENDANT: I have a Ph.D in mathematics.
7 THE COURT: What is your occupation?
8 THE DEFENDANT: That's an open question right now. My
9 occupation, I suppose, now is jail inmate.
10 THE COURT: Okay. What past occupations have you held?
11 THE DEFENDANT: I was once an assistant professor of
12 mathematics. Since then I have spent much time living in the
13 woods in Montana and have held a variety of unskilled jobs.
14 THE COURT: Have you ever been treated for any mental
15 illness or addiction to drugs of any kind?
16 THE DEFENDANT: No, Your Honor.
17 THE COURT: Are you presently under the influence of any
18 drug, medication or alcoholic beverage of any kind?
19 THE DEFENDANT: No, Your Honor.
20 THE COURT: Have you consumed any drugs, alcohol or
21 medication in the last 24 hours?
22 THE DEFENDANT: No, Your Honor.
23 THE COURT: Have you received a copy of the indictments
24 pending against you, that is, the written charges made against
25 you in this case and in the case filed in the United States
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3800
1 District Court, District of New Jersey; and have you fully
2 discussed those charges --
3 (Discussion off the record between the defendant and
4 Ms. Clarke).
5 THE COURT: -- and the case in general with Mr. Denvir
6 and Ms. Clarke as your counsel?
7 THE DEFENDANT: Your Honor, I'm afraid I was occupied in
8 discussing --
9 THE COURT: Okay.
10 THE DEFENDANT: -- with my attorney --
11 THE COURT: No problem. I should have discontinued my
12 communication at the time that occurred.
13 MS. CLARKE: Your Honor, the question is, did
14 Mr. Kaczynski receive the indictment? We have received them.
15 We do not have them present in front of him.
16 THE COURT: They don't have to be present in front of
17 him. He has to have received them at some point in time and
18 reviewed them.
19 THE DEFENDANT: Yes, Your Honor. I did receive them at
20 a previous time.
21 THE COURT: Let's do that question again. Have -- oh,
22 I'm sorry.
23 (Discussion between the defendant and Mr. Denvir.)
24 THE COURT: Have you at any time received copies of the
25 indictments pending against you, that is, the written charges
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3801
1 made against you in this case and in the case filed in the
2 United States District Court, District of New Jersey; and have
3 you fully discussed those charges and the cases in general
4 with Mr. Denvir and Ms. Clarke as your counsel?
5 THE DEFENDANT: Yes, Your Honor, I have.
6 (Mr. Lapham gives document to Mr. Denvir.)
7 THE COURT: What did the Government just provide the
8 defense?
9 MR. LAPHAM: Your Honor, for the record, I just provided
10 them with a copy of the New Jersey indictment and the
11 Sacramento indictment.
12 THE COURT: Shall I pause while you review those, or is
13 that necessary?
14 THE DEFENDANT: I don't think it's necessary, Your
15 Honor.
16 THE COURT: Mr. Kaczynski, are you fully satisfied with
17 the counsel, representation and advice given you in this case
18 by Mr. Denvir and Ms. Clarke as your attorneys?
19 (Discussion off the record between Ms. Clarke and
20 Mr. Kaczynski).
21 THE COURT: I am satisfied except as reflected otherwise
22 in the record.
23 THE COURT: You need to explain that, sir.
24 THE DEFENDANT: All right, Your Honor.
25 You know that I have had certain dissatisfactions in my
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3802
1 relationship with my counsel. And those dissatisfactions are
2 reflected in the record. Apart from those dissatisfactions
3 that are reflected in the court record, I have no other
4 dissatisfactions with my representation by counsel.
5 (Discussion off the record between Mr. Denvir and the
6 defendant.)
7 THE DEFENDANT: I am willing to proceed for sentencing
8 with present counsel.
9 THE COURT: My understanding of your dissatisfaction
10 with present counsel is that there was a disagreement as to
11 the assertion of the mental status defense and you had some
12 problems with present counsel concerning communications
13 surrounding the presentation of mental status-type evidence.
14 THE DEFENDANT: Yes, Your Honor.
15 THE COURT: Is that what you are referencing?
16 THE DEFENDANT: Yes, Your Honor. That is what I am
17 referring to.
18 THE COURT: Are you referring to anything other than
19 that?
20 THE DEFENDANT: No, Your Honor.
21 THE COURT: Is it your understanding that your attorneys
22 had discussions with the attorneys for the Government in this
23 case concerning your change of plea?
24 THE DEFENDANT: Yes, Your Honor.
25 THE COURT: Does your willingness to plead guilty result
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3803
1 from those discussions?
2 THE DEFENDANT: Yes, Your Honor.
3 THE COURT: Are you entering this plea of guilty
4 voluntarily because it is what you want to do?
5 (Discussion off the record between Ms. Clarke and the
6 defendant.)
7 THE DEFENDANT: Yes, Your Honor.
8 THE COURT: I'm now going to have the Government to
9 explain the terms of your plea agreement with the Government.
10 I want you to listen to the explanation provided, because when
11 the Government completes it I will ask you the question, "Are
12 those the terms of your plea agreement with the Government as
13 understand them?" And I want you to be in the position to
14 respond to that question.
15 MR. LAPHAM: Your Honor, the terms of the agreement are
16 as follows: the defendant agrees to plead guilty to all
17 outstanding charges in Sacramento and in New Jersey. There
18 will be a total of 13 counts. In return for a plea of
19 guilty -- that is an unconditional plea of guilty.
20 In return, the Government agrees to withdraw the notice
21 of intent to seek the death penalty. And the defendant
22 understands that under those circumstances, he would be
23 sentenced to a mandatory term of life imprisonment without
24 possibility of release.
25 There are also other conditions regarding payment of
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3804
1 restitution. The defendant understands that restitution is
2 required under the relevant statutes, as well as agreements as
3 to the disgorgement of future earnings, if any, that are
4 obtained by the defendant or on his behalf as a result of any
5 writings, interviews, or access to the defendant in the
6 future.
7 I think that states the essential terms of the plea
8 agreement.
9 Your Honor, if I may, at this point, it might also be
10 appropriate to ask the defendant if whatever dissatisfaction
11 he has historically had with counsel did not interfere with
12 his decision with respect to this plea agreement and that he
13 is satisfied with his counsel's representation with respect to
14 their advice on this plea agreement.
15 THE COURT: That was a long question. I'm not sure what
16 you want me to ask.
17 MR. LAPHAM: Well, I think he should be probed as to his
18 specific -- if he has any dissatisfaction with his counsel
19 with respect to entry of this plea agreement.
20 THE COURT: Okay. Any problems with that, counsel for
21 the defense, Mr. Denvir or Ms. Clarke?
22 (Discussion off the record between Mr. Denvir and
23 Ms. Clarke.
24 MR. DENVIR: I thought he had already answered that
25 question, Your Honor, that he is prepared to proceed on
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3805
1 sentencing with us, but if the Court has some questions about
2 that . . .
3 THE COURT: I thought he had responded to the question
4 too, but I will try to do what you have asked me to do, since
5 it shouldn't cause any harm.
6 Mr. Kaczynski, are you satisfied with the level of
7 representation of your counsel in assisting you during this
8 plea proceeding?
9 THE DEFENDANT: Yes, Your Honor. I am satisfied with
10 that.
11 THE COURT: And I thought we had already covered the
12 point of dissatisfaction you had with your counsel as far as
13 other proceedings were concerned, did we not?
14 THE DEFENDANT: Yes, Your Honor.
15 THE COURT: Government's counsel just set forth the
16 terms of your plea agreement from the Government's
17 perspective. Are those the terms of your plea agreement with
18 the Government as you understand them?
19 THE DEFENDANT: Yes, Your Honor.
20 THE COURT: Has anyone made any other or different
21 promise or assurance to you of any kind in an effort to induce
22 you to enter a plea of guilty in this case?
23 THE DEFENDANT: No, Your Honor.
24 THE COURT: Has anyone attempted to any way to force or
25 threaten you to plead guilty in this case?
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3806
1 THE DEFENDANT: No, Your Honor.
2 THE COURT: The offenses to which you are offering a
3 plea of guilty are felony offenses. If your plea is accepted,
4 you will be adjudged guilty of those offenses, and that
5 adjudication may deprive you of valuable civil rights, such as
6 the right to vote, the right to hold public office, the right
7 to serve on a jury, and the right to possess any kind of
8 firearm.
9 Are you aware of the valuable civil rights you may give
10 up if you go forward with your intention and plead guilty?
11 THE DEFENDANT: Yes, Your Honor.
12 THE COURT: Are you presently on probation or parole for
13 any other offense?
14 THE DEFENDANT: No, Your Honor.
15 THE COURT: Please listen to the consequences of your
16 plea. The maximum possible penalty provided by law for a plea
17 of guilty to each and every count of both indictments is a
18 mandatory sentence of life imprisonment without possibility of
19 release and a fine of $3,250,000. You understand that, sir?
20 THE DEFENDANT: Yes, Your Honor.
21 THE COURT: If economic loss has been suffered by a
22 victim as a result of this criminal conduct, the Court, in
23 accordance with the Sentencing Reform Act, shall order you to
24 make restitution unless the Court finds that, under the
25 statute, restitution is not appropriate in this case. You
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3807
1 will be required to disgorge any monies paid in whole or in
2 part and regardless to whom the money is paid in return for
3 writings, interviews or other information disclosed by you,
4 including but not limited --
5 THE DEFENDANT: Your Honor, there seems to be a
6 discrepancy here between what you're saying and the plea
7 agreement as I have it here.
8 THE COURT: I've changed some of the words, but I
9 thought it was identical. I thought the message was the same.
10 THE DEFENDANT: Your Honor, on mine --
11 MR. CLEARY: We had sent an earlier draft to chambers
12 today. Some of that language has been changed.
13 THE COURT: Oh, I see. Well, my staff indicated to me
14 that I need not worry about the changes. I thought they got
15 that message from the parties.
16 Has this been taken out?
17 MR. DENVIR: The wording's been changed on the
18 disgorgement. It's just a little more precise.
19 THE COURT: What section is it?
20 MS. CLARKE: Page 4, Your Honor. Paragraph D.
21 MR. DENVIR: III-D. Roman numeral III-D.
22 THE COURT: (Accepts document.)
23 Show this to the Government to make sure that I'm using
24 the right document.
25 THE CLERK: (Complies.)
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3808
1 MR. LAPHAM: Your Honor, to avoid confusion, maybe I
2 should just give you the original signed version of the plea
3 agreement.
4 THE COURT: I have to end up with it anyway, so you
5 might as well give it to me now.
6 MR. LAPHAM: Very good. (Complies.)
7 THE COURT: Where is it located in the original?
8 MR. LAPHAM: The disgorgement language is located on
9 page 4, beginning at line 17.
10 (Pause in the proceeding.)
11 THE COURT: Because I had to stop to focus on
12 disgorgement, we need to go back to the restitution issue,
13 because I didn't put a closure on that issue. I advised you
14 of the consequence, but I didn't stop to determine if you
15 understood that precise consequence. I'm going to read that
16 again so that the record is clear.
17 If economic loss has been suffered by a victim as a
18 result of this criminal conduct, the Court, in accordance with
19 the Sentencing Reform Act, shall order you to make restitution
20 unless the Court finds that, under the statute, restitution is
21 not appropriate in this case.
22 You understand that is a consequence of your plea, sir?
23 THE DEFENDANT: Yes, Your Honor. I understand that.
24 THE COURT: You understand that, as a consequence of
25 your plea, you have agreed that you shall disgorge any monies
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3809
1 paid in whole or in part to you or on your behalf in return
2 for writings, interviews or other information disclosed by
3 you, including but not limited to access to you, photographs
4 or drawings of or by you, or any other type of artifact or
5 memorabilia to the United States Probation Office for
6 restitution or other distribution to the victims of the Unabom
7 events?
8 THE DEFENDANT: I understand that, Your Honor.
9 THE COURT: Okay. There will be a special assessment of
10 $650 imposed for your guilty plea pursuant to federal law.
11 Mr. Kaczynski, do you understand those possible
12 consequences of your plea?
13 THE DEFENDANT: Yes, Your Honor.
14 THE COURT: Under the Sentencing Reform Act of 1984, the
15 United States Sentencing Commission has issued guidelines for
16 judges to follow in determining the sentence in a criminal
17 case. Have you and your attorneys talked about how the
18 Sentencing Commission guidelines might apply to your case?
19 (Discussion off the record between the defendant,
20 Ms. Clarke and Mr. Denvir.)
21 THE DEFENDANT: Yes, Your Honor.
22 THE COURT: Do you understand that the Court will not be
23 able to determine the guideline sentence for your case until
24 after the pre-sentence report has been completed and your
25 attorney and the Government have had an opportunity to object
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3810
1 to any of the findings in that report?
2 THE DEFENDANT: Yes, Your Honor.
3 THE COURT: Do you understand that after it has been
4 determined what guideline applies to a case, the judge has the
5 authority in some circumstances to impose a sentence that is
6 more severe or less severe than the sentence called for by the
7 guidelines?
8 THE DEFENDANT: Yes, Your Honor.
9 THE COURT: How about the question of appeal? Has that
10 been waived?
11 MR. LAPHAM: Yes, Your Honor. It's contained at page 7,
12 beginning at line 16.
13 THE COURT: Okay. Do you understand that by entering
14 into the plea agreement you have entered with the Government,
15 you will have waived or given up your right to appeal all or
16 any part of your plea of guilty and anything else that occurs
17 during this conviction hearing and anything that occurs during
18 your sentencing hearing?
19 THE DEFENDANT: Yes, Your Honor.
20 THE COURT: Do you understand that parole has been
21 abolished and that if you plead guilty, you will spend the
22 rest of your life in prison and you will never be released or
23 paroled?
24 THE DEFENDANT: I understand that, Your Honor.
25 THE COURT: Do you understand that if the sentence is
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3811
1 more severe than you expected, you will still be bound by your
2 plea and will have no right to withdraw it?
3 THE DEFENDANT: I understand it, Your Honor.
4 THE COURT: Do you understand that if I do not accept
5 the sentencing recommendation in your plea agreement, you will
6 still be bound by your plea and will have no right to withdraw
7 it?
8 THE DEFENDANT: I understand that, Your Honor.
9 THE COURT: Mr. Lapham, you were going to tell me about
10 the "waiver of appeal" section of the plea agreement. Can you
11 direct my attention to that again? I want to see if I missed
12 something.
13 MR. LAPHAM: That was page 7, line 16.
14 (Pause in the proceeding.)
15 THE COURT: Do you further understand that if you plead
16 guilty, you will waive right to appeal any legal rulings made
17 by the district court?
18 THE DEFENDANT: I understand that, Your Honor.
19 THE COURT: Do you understand that you have a right to
20 plead not guilty to any offense charged against you and to
21 persist in that plea, that you would then have the right to a
22 trial by jury, during which you would also have the right to
23 the assistance of counsel for your defense, the right to
24 assist in the selection of that jury, the right to see and
25 hear all the witnesses and have them cross-examined in your
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3812
1 defense, the right on your own part to decline to testify
2 unless you voluntarily elected to do so in your own defense,
3 and the right to the issuance of subpoenas or compulsory
4 process to compel the attendance of witnesses to testify in
5 your defense, the right to require the Government to prove
6 your guilt beyond a reasonable doubt, the right to appeal this
7 conviction and your sentence and any rulings made by the
8 district court? Do you understand you have all those rights?
9 THE DEFENDANT: I understand that, Your Honor.
10 THE COURT: Do you understand that by entering a plea of
11 guilty, if that plea is accepted by the Court, there will be
12 no trial of any kind and you will have waived or given up your
13 right to a trial as well as those other rights which I've just
14 described?
15 THE DEFENDANT: I understand that, Your Honor.
16 THE COURT: I'm now going to have the Government to
17 state each of the essential elements of the offenses in the
18 indictment so that I can be assured that the defendant
19 understands the charges. After that is stated, Mr. Kaczynski,
20 I will ask you the precise question, "Do you understand those
21 charges?" The Government will now explain the elements, and
22 the elements constitute the charges.
23 MR. LAPHAM: Thank you, Your Honor. Your Honor, there
24 are three types of offenses in the two indictments.
25 There are several counts of transportation of an
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3813
1 explosive device with intent to kill or injure. With respect
2 to that charge, the Government would be required to prove,
3 number one, that transportation in interstate commerce; two,
4 of an explosive; three, with the knowledge or intent that it
5 would be used to kill, injure or intimidate any individual.
6 With respect to the crime of mailing explosive device
7 with intent to kill or injure, the Government would be
8 required to prove, one, that the defendant knowingly deposited
9 for mailing or knowingly caused to be delivered by mail a
10 device or composition that could ignite or explode; and, two,
11 that the defendant acted with the intent to kill or injure
12 another.
13 And with respect to the third type of offense charged in
14 the two indictments, using a destructive device in relation to
15 a crime of violence, the Government would be required to prove
16 beyond a reasonable doubt that the defendant used or carried a
17 bomb and that he did so during and in relation to a crime of
18 violence, that crime of violence being the use of that bomb.
19 THE COURT: Mr. Kaczynski, do you understand those
20 charges?
21 THE DEFENDANT: Yes, Your Honor. I understand them.
22 THE COURT: I'm now going to have the Government's
23 attorney to make a representation concerning the facts the
24 Government would be prepared to prove at trial. Again,
25 Mr. Kaczynski, I want you to listen to the factual
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3814
1 representation made by the Government's attorney, because
2 after it's made, I will ask you the question, "Do you agree
3 with the factual representation just made by the Government's
4 attorney?" And I want you to be in a position to respond to
5 the question.
6 (Discussion off the record between the defendant and
7 Mr. Denvir.)
8 MR. LAPHAM: Your Honor, what I propose to do is -- the
9 defendant has agreed to make full allocution as to all 16 of
10 the Unabom devices; that would include charged as well as
11 uncharged devices. The uncharged devices are relevant to
12 showing -- to the Government's proof of the charged devices.
13 What I propose to do is first run down the charged
14 devices, give a factual basis for each of those, and then go
15 back to each of the uncharged devices and go through those,
16 one by one. And what I would propose is, as I complete each,
17 the factual basis for each device, to have the defendant
18 queried as to his acceptance of the factual basis.
19 THE COURT: Okay.
20 MR. LAPHAM: Your Honor, with respect to Count number 1
21 in the Sacramento indictment, that charges a device which
22 killed Hugh Scrutton.
23 With respect to that, if this case were to proceed to
24 trial, the Government would show that during 1985 the
25 defendant constructed several bombs. During the fall of that
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3815
1 year the defendant transported one of those bombs to
2 Sacramento, California, where he placed that device behind a
3 computer rental store called Rentech, which is located on
4 Howe Avenue near Arden in Sacramento. That device was found
5 by the owner of Rentech, Hugh Scrutton, as he was leaving
6 through the rear entrance of that building. He, Mr. Scrutton,
7 picked up that device or attempted to move that device, which
8 was disguised as a scrap of wood with nails protruding from
9 it. As he moved that device, the device exploded, causing
10 pieces of shrapnel to enter Mr. Scrutton's heart and internal
11 organs and killing him within approximately a few minutes.
12 The Government would prove, if this case were to proceed
13 to trial, that during the search of the defendant's cabin the
14 Government found numerous entries in the defendant's journal
15 that were written in numeric code. The Government found the
16 key to that code among the defendant's effects and decrypted
17 the code, and one of those entries read as follows:
18 "Experiment 97, December 11, 1985" -- which was the date
19 that the Scrutton device was detonated -- "I planted a bomb
20 disguised to look like a scrap of lumber between Rentech
21 Computer store in Sacramento. According to the Sacramento
22 Bee, December 20th, the operator of the store was killed,
23 quote unquote, blown to bits, on December 12th. Excellent.
24 Humane way to eliminate somebody. He probably never felt a
25 thing. $25,000 reward offered. Rather flattering.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3816
1 In that same cabin search, the Government located a
2 number of experiments, totaling up to 245 experiments. One of
3 those experiments, the one in the admission I just read,
4 Experiment 97, contained the following passage. It reflected
5 a bomb that was constructed during November of 1985, completed
6 on December 8th, 1985, and the passage concludes, "The device
7 was hidden inside a hollow piece of wood so that when the wood
8 were to be grabbed or picked up, the bolts in the trigger
9 would come out. The device was deployed on December 11th,
10 1985." December 27th is the next entry. "The device detonated
11 with good results. It detonated on December 12th."
12 Your Honor, that concludes the -- oh, and in addition to
13 that, the device contained an end plug, which is a component
14 of the device, which contained the initials FC, which is a
15 signature of the person who has been designated as the
16 Unabomber. Forensic evidence also determined that the Rentech
17 device was forensically similar to all other Unabom devices
18 and was a virtual twin to a bomb which was placed in February
19 1987 behind a computer store in Salt Lake City.
20 That would conclude the proffer as to the Scrutton
21 bomb.
22 THE COURT: Mr. Kaczynski, do you agree with the factual
23 representation just made by the Government's attorney?
24 THE DEFENDANT: Yes, Your Honor.
25 MR. LAPHAM: Your Honor, Counts 2 through 7 of the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3817
1 Sacramento indictment charge a bomb that was mailed to
2 Drs. Charles Epstein and David Gelernter. And the factual
3 basis for those offenses is as follows.
4 During 1993 the defendant constructed two devices,
5 bombs, which he then transported to Sacramento, California.
6 On or about June 18, 1993, the defendant mailed those
7 devices. One was mailed to Dr. Charles Epstein in Tiburon,
8 California; the other was mailed to Dr. David Gelernter at
9 Yale University in New Haven, Connecticut. At the same time
10 those bombs were mailed, a letter was mailed to the New York
11 Times essentially claiming responsibility for those two
12 devices.
13 The devices were opened by their recipients, causing
14 very severe injuries to the two doctors. The defendant's
15 cabin was searched, and the following -- let me say, first,
16 that those two devices were forensically similar to each other
17 as well as to other Unabom devices. And the letter that I
18 mentioned -- actually, a different letter -- in a letter to
19 the New York Times dated April 20th, 1995, the Unabomber
20 declared, quote, "After a long period of experimentation, we
21 developed a type of bomb that does not require a pipe but is
22 set off by a detonating cap that consists of a chlorate
23 explosive packed into a piece of small diameter copper
24 tubing. The detonating cap is a miniature pipe bomb. We used
25 bombs of this type to blow up the genetics engineer Charles
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3818
1 Epstein and the computer engineer David Gelernter."
2 Your Honor, during a search of the defendant's cabin a
3 carbon copy of this letter was found in the defendant's
4 personal effects. Moreover, the defendant's experiment
5 binders, which I've already made reference to, confirmed the
6 statements made in the Times letter in several respects. They
7 reflect a long period of experimentation which culminates in
8 the development of a bomb of the type described in the
9 New York Times letter.
10 Experiment 225 reflects the construction of these two
11 devices between January and June of 1993 and concludes,
12 quote, "I sent these devices during June 1993. They detonated
13 as they should have. The effect of both of them was adequate
14 but no more than adequate."
15 Your Honor, during the search of Mr. Kaczynski's cabin,
16 the Government also obtained numerous articles pertaining to
17 Drs. Epstein and Gelernter as well as articles referencing the
18 bombings of those two individuals. And those articles
19 referencing Drs. Epstein and Gelernter appeared in the papers
20 prior to the June 1993 bombing.
21 And that concludes the offer of proof as to those
22 counts.
23 THE COURT: Mr. Kaczynski --
24 MS. CLARKE: Your Honor, I believe counsel misspoke
25 regarding the newspaper articles. There were -- Dr. Gelernter
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3819
1 -- there was an article about him, but not about Dr.
2 Epstein. I believe counsel misspoke; there were no news
3 articles regarding Dr. Epstein.
4 MR. LAPHAM: That's correct. Just Dr. Gelernter.
5 THE COURT: There is agreement on the correction made by
6 your counsel. So with that correction in mind and everything
7 else that the Government lawyer stated, do you agree with the
8 factual representation just made by the Government's attorney,
9 Mr. Kaczynski?
10 THE DEFENDANT: Yes, Your Honor.
11 MR. LAPHAM: Your Honor, with respect to Counts 8
12 through 10 of the Sacramento indictment, that charges a device
13 which was mailed to the California Forestry Association and
14 which was received on approximately April 20th, 1995 and
15 killed Gilbert Murray.
16 With respect to that device, the Government, if this
17 case were to proceed to trial, would prove that during 1995 --
18 1994 and 1995, the defendant constructed a bomb which he
19 transported to Sacramento -- which he transported to the Bay
20 Area and, from that location, mailed the device to the
21 California Forestry Association in Sacramento, California.
22 The package was addressed to William Dennison, the
23 former president of the California Forestry Association.
24 However, it was opened by Gilbert Murray, the current, at that
25 time, president of the Forestry Association.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3820
1 In a letter to the New York Times dated June 24, 1995,
2 the Unabomber declared after the bomb had detonated killing
3 Mr. Murray: "We have no regret about the fact that our bomb
4 blew up the wrong man, Gilbert Murray, instead of William
5 Dennison, to whom it was addressed. Though Murray did not
6 have Dennison's inflammatory style, he was pursuing the same
7 goals, and he was probably pursuing them more effectively
8 because of the very fact that he was not inflammatory."
9 The letter went on to state,"it was reported that the
10 bomb that killed Gil Murray was a pipe bomb. It was not a
11 pipe bomb but was set off by a homemade detonating cap. The
12 F.B.I.'s so-called experts should have been able to determine
13 this quickly and easily, especially because we indicated in an
14 unpublished part of our letter -- last letter to the New York
15 Times that the majority of our bombs are no longer pipe
16 bombs. It was also reported that the address label on this
17 same bomb gave the name of the California Forestry Association
18 incorrectly. This is false. The name was given correctly."
19 Your Honor, during a search of the defendant's cabin the
20 Government obtained a carbon copy and a handwritten draft of
21 the foregoing letter. The Government also found letters which
22 were mailed by the Unabomber, at the same time as that letter,
23 to Professors Sharp and Roberts and Professor Gelernter, who
24 I've previously mentioned.
25 The cabin searchers also found a copy of a letter to a
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3821
1 radical environmental group known as Earth First!, and that
2 letter began: "This is a message from FC. The F.B.I. calls
3 us Unabom. We are the people who recently assassinated the
4 president of the California Forestry Association."
5 Your Honor, the cabin searchers also located in that
6 cabin a typewriter which was used to type the mailing labels
7 on all the -- the bomb 13 -- that would be the Epstein and
8 Gelernter bombing bombs, and also the Unabom correspondence
9 that I have referred to.
10 And, Your Honor, the cabin searchers also found
11 handwritten notes reflecting bus schedules for a trip from
12 Montana to the Bay Area in the March 1995 time period. The
13 cabin searchers also found among one of the defendant's
14 experiments, Experiment 245 -- that was a partial experiment
15 which chronicles the construction of the Murray device.
16 And that would conclude the proffer as to those counts.
17 THE COURT: Mr. Kaczynski, do you agree with the factual
18 representation just made by the Government's attorney?
19 THE DEFENDANT: Yes, Your Honor.
20 MR. LAPHAM: Your Honor, that concludes the proffer with
21 respect to the counts in the Sacramento indictment.
22 The New Jersey indictment contains three counts which
23 relate to a bomb that was sent to Thomas Mosser in December of
24 1994. The Government's proffer with respect to that would be
25 as follows.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3822
1 THE COURT: All three counts, is that?
2 MR. LAPHAM: Yes.
3 THE COURT: All right.
4 MR. LAPHAM: Different charges, but all the same bomb.
5 THE COURT: Okay.
6 MR. LAPHAM: The Government would show that during 1994
7 the defendant constructed a bomb; that he transported that
8 bomb on or around December of 1994 to the Bay Area, where he
9 mailed the device to Thomas Mosser in New Jersey; that bomb
10 was received at the Mosser family residence, was received by
11 mail, was brought in by Mrs. Mosser, placed on the kitchen
12 counter, and was later opened by Thomas Mosser, who was an
13 executive with the national advertising firm of Burson-
14 Marsteller. Mr. Mosser opened that device, opened that
15 package, and it exploded, killing him almost instantly.
16 The Government's proffer with respect to that bomb is as
17 follows, or additional proffer. In Experiment 244 which was
18 found in the defendant's cabin, the defendant describes
19 constructing the Mosser bomb over a period of approximately
20 five months, completing the device on or about October 14th,
21 1994. The experiment concludes, quote, "The device in
22 Experiment 244 was used in December 1994, and it gave a
23 totally satisfactory result."
24 Your Honor, in a letter to the New York Times dated
25 April 20th, 1995, the Unabomber stated in part, "We blew up
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
3823
1 Thomas Mosser last December because he was a Burston-
2 Marsteller [sic] executive. Among other misdeeds, Burston-
3 Marsteller [sic] helped Exxon clean up its public image after
4 the Exxon Valdez incident. But we attacked Burston-Marsteller
5 [sic] less for its specific misdeeds than on general
6 principles. Burston-Marsteller [sic] is about the biggest
7 organization in the public relations fields. This means that
8 its business is the development of techniques for manipulating
9 people's attitudes. It was for this more than for its actions
10 in specific cases that we sent a bomb to an executive of this
11 company." Your Honor, |
