U.S. v. Kaczynski
Trial Transcripts
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1
1 SACRAMENTO, CALIFORNIA
2 TUESDAY, DECEMBER 23, 1997, 11:02 A.M.
3 -- oOo --
4 THE CLERK: Calling criminal case S-96-259, United
5 States versus Theodore Kaczynski.
6 THE COURT: Please state your appearances for the
7 record.
8 MR. CLEARY: Robert Cleary, Douglas Wilson, Stephen
9 Freccero and Steve Lapham for the Government. And Mr. Wilson
10 will be arguing for the Government today, Your Honor.
11 THE COURT: Okay. Thank you.
12 MR. DENVIR: Good morning, Your Honor. Judy Clarke,
13 Quin Denvir, Gary Sowards and John Balazs for Mr. Kaczynski
14 today. We have waived his appearance.
15 THE COURT: Okay. We are here for argument on two
16 issues: a guilt phase mental status issue and a sentencing
17 phase mental status issue.
18 Let me hear from the defense first on the guilt phase
19 mental status issue.
20 MR. SOWARDS: Good morning, Your Honor.
21 THE COURT: Good morning.
22 MR. SOWARDS: Your Honor, by way of the status of where
23 we are with respect to the guilt phase mental status
24 evaluation, pursuant to the Court's order -- and I apologize
25 for explaining this belatedly to the Court -- we have been
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1 meeting and conferring through this morning with the
2 Government. And we have made the following proposal which we
3 had hoped would actually moot out some of the issues and
4 actually take care of all of the pending issues.
5 The proposal which we have been authorized to relate to
6 the government, and have related, is to withdraw the 12.2(b)
7 notice with respect to the guilt phase; to make Mr. Kaczynski
8 available for neuropsychological testing and specifically to
9 undergo -- I believe it's 10 tests which were specified by the
10 Government in their status report; to agree also with the
11 ability of the neuropsychologist to conduct a structured
12 clinical interview or diagnostic interview; and to permit the
13 Government's designated forensic psychiatrist to observe that
14 examination at a facility at the jail which is eminently
15 conducive to that procedure. It has a one-way glass which
16 would allow them -- and monitoring devices which would allow
17 them to be in on that evaluation.
18 In return, what we would then propose, and this is by
19 way of explaining the negotiations with the Government, not to
20 pre-empt the notice issue at the -- as to the penalty phase,
21 but if that were agreeable to the Government, we had then
22 proposed that only at the penalty phase we would be calling
23 the neuropsychologist who had evaluated Mr. Kaczynski and
24 produced the data which we've already given to the
25 Government.
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1 And then we would be calling one psychiatrist who had
2 actually observed him in a less structured clinical situation
3 than the Government's experts would have an opportunity to
4 observe him. And so she's had less than an hour of just
5 exposure to Mr. Kaczynski.
6 And we would also be proposing to call a social
7 historian to give a psychosocial evaluation of the family
8 dynamics of the Kaczynski family, including evidence which we
9 have already provided in the Rule 16 discovery, of multiple
10 generational indications of affective mood disorder and other
11 mental illness which is consistent with the schizophrenia
12 diagnosis.
13 Unfortunately, the Government has turned us down on
14 that.
15 THE COURT: Are you indicating that the defense's offer
16 effectively withdraws the mental status issue from the guilt
17 phase of the trial?
18 MR. SOWARDS: That's correct.
19 THE COURT: And your offer, in essence, concerns the
20 sentencing phase of the trial?
21 MR. SOWARDS: Correct. It's what -- as we characterized
22 it to the Government -- a global disposition of all the
23 issues.
24 And I'm also prepared to address the Court with respect
25 to the penalty phase. We also think not only would it give
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1 the Government's expert access to everything and more that our
2 experts have had access to, at least the ones that we would be
3 relying on, but I would believe also that it would give them
4 more than they even may be entitled to under the statute for
5 purposes of penalty phase preparation and rebuttal.
6 THE COURT: Okay. I think I want to hear from the
7 Government.
8 MR. SOWARDS: Thank you.
9 MR. CLEARY: Thank you, Your Honor.
10 There were a couple of parts of the defense proposal
11 that were quite problematic for the Government.
12 And if I can go through a number of those now: first of
13 all, when Mr. Sowards says they would allow a structured
14 clinical interview of Mr. Kaczynski, in fact what the proposal
15 was is that our experts would submit written questions to the
16 defense attorneys; they would then pre-approve and pre-screen
17 those questions, and then those questions would be read
18 presumably by our experts in haec verba to the defendant.
19 And the problem with that, as we see it, is the defense
20 saw it, as they explained it to us, as not merely structured
21 but kind of pre-ordained questions --
22 THE COURT: Maybe I should interrupt you. I'm
23 interrupting you because at this juncture I'm discerning that
24 the parties have not agreed upon an approach and you are
25 really explaining the nature of the disagreement. A
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1 United States district judge is not supposed to be involved in
2 settlement, so that thought's on my mind. I'm not supposed to
3 be involved in that aspect of a criminal case.
4 Perhaps what I should do is just address the issues.
5 I've asked you to meet and confer on the guilt phase issue. I
6 think that's appropriate. I'm not certain that it would be
7 appropriate for me to get involved extensively in the meeting
8 and conferring.
9 The sentencing phase issues, in my opinion, present
10 different problems. The Government simply moved for an order
11 that would require Mr. Kaczynski to undergo an examination, a
12 sentencing phase examination, despite the fact that
13 Mr. Kaczynski did not give notice that he intended to offer
14 mental health testimony in the sentencing phase aspect of the
15 proceeding, should there be a sentencing phase.
16 That troubled me, and so I asked the parties to submit
17 supplemental briefing on the notice question in connection
18 with the sentencing phase issue. I'm not clear about the
19 Government's position on the sentencing phase notice
20 question. The defense appears to agree with the Court's
21 tentative analysis concerning that issue.
22 But since I don't think I should be involved in any kind
23 of breakdown in your negotiations, I'm not going to be
24 involved, especially if it's obvious that you have a
25 disagreement; the thing for me to do is just rule and receive
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1 your arguments on the issues and I'll issue a ruling.
2 And since the guilt phase aspect of the trial has to be
3 determined first, that's where arguments begin. And as far as
4 that phase of the trial is concerned, the issue before me is a
5 sanctioning question. I think I want to hear from the
6 Government on that issue.
7 MR. CLEARY: Thank you, Your Honor.
8 Our position, as we've set forth before to the Court, is
9 for -- and I don't want to go over all the ground -- but our
10 initial position was complete preclusion of any mental defect
11 defense based on expert testimony. And the Court indicated
12 that, you know, what's our fallback position, that you were
13 not inclined to do that. And so I'd like to address that now.
14 Our position on what our fallback position would be, as
15 we set forth in our papers, is that the defendant should be
16 precluded from calling any experts that have had any access to
17 the defendant in any way, shape or form -- that would be
18 testing and evaluating or examining the defendant, because the
19 Government's experts have been likewise precluded or prevented
20 from doing that. Likewise, the defense should not be allowed
21 to call any experts who've been tainted, in a colloquial
22 sense, tainted by the results of contact with the defendant.
23 THE COURT: What does that mean?
24 MR. CLEARY: Well, so, for example, the defense has
25 administered some recent neuropsychological testing to the
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1 defendant. We believe that experts that have evaluated that
2 testing should be precluded from testifying in the case.
3 So basically what we're looking at in our proposal is
4 both sides have experts who have reviewed the defendant's
5 writings and interviewed third party witnesses, to the extent
6 they chose to, and then both sides could present that
7 evidence.
8 We've also suggested to the Court that, under that
9 proposal, the Government be able to offer proof at trial or
10 the Court instruct the jury at trial that the Government
11 experts did seek to examine and test the defendant and that
12 the defendant rejected those efforts. And under our proposal,
13 the Government would be able to argue their inferences that
14 flow from those facts.
15 So that would be basically our suggestion to the Court.
16 THE COURT: The factor I'm supposed to analyze -- one of
17 the factors -- is prejudice. What prejudice would the
18 Government experience -- let me rephrase that. I have in mind
19 what I anticipate to be the defense's argument. What the
20 defense, I believe, will argue, is that they should at least
21 be allowed to submit the neuropsychological testing results.
22 And I understand the Government's position is that I shouldn't
23 allow that.
24 MR. CLEARY: That's correct, Your Honor.
25 THE COURT: One of the factors that I am to consider is
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1 the prejudice factor. You are telling me what you want me to
2 do, but you haven't made an argument under that factor.
3 MR. CLEARY: I understand, Your Honor. Let me address
4 that specifically, then. And I guess there's really two parts
5 to the prejudice, because we have a psychiatric examination
6 that we wanted to take and we had proposed six different
7 alternatives to the defense for our psychiatric examination,
8 and that's been rejected by the defense.
9 As to those -- I'll deal with that separately from the
10 neuropsych testing. As to the psychiatric defense, the
11 psychiatric examination that we were precluded from taking,
12 the prejudice there is that seems to go to the very heart of
13 the matter, the very issue in the guilt phase, and that is, is
14 the defendant -- it's really a two-part analysis, as I see
15 it. Does the defendant suffer from the mental disease that
16 the defense alleges he does, paranoid schizophrenia, number
17 one; and, number two, assuming he does, how does that impact
18 his ability to form intent, his ability to intend to injure or
19 kill people through the acts, the alleged acts that he
20 committed?
21 And that is a psychiatric issue that can be best
22 determined, most validly and most reliably determined by an
23 examination, a psychiatric examination. The prejudice to the
24 Government -- and that seems to be what the focal point of the
25 guilt phase will be. The prejudice to the Government is, on
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1 that crucial issue that the Government bears the burden of
2 proof, we are prevented from putting forth the most valid and
3 most reliable evidence that should be at our disposal, and
4 that is the examination of the defendant. So that's the
5 prejudice on that part.
6 On the testing part of it -- and if the Court has no
7 questions, I'll move on to the testing part.
8 On the testing part of it, the prejudice there is
9 several-fold. First of all, the defense experts chose not to
10 administer what we believe are the most valid tests, the most
11 probative tests. And those are personality inventories, the
12 MMPI, the MCMI and the Benden [phonetic] -- I'm sorry -- the
13 Beck Depression Inventory. Those are, in our view, the most
14 probative tests to determine whether the defendant in fact
15 suffers from paranoid schizophrenia.
16 As to the first of those, the MMPI, that is widely
17 administered, widely accepted as a test that is probative on
18 that issue as well as other issues. And to us there's no
19 reason that that test should not be given. We should not be
20 precluded from administering that test simply because the
21 defense chose not to give it. We should be allowed to give
22 that test, which goes, in our view, to one of the crucial
23 issues in this case. So that's the first prejudice on the
24 testing part is they didn't give the test that we believe
25 would be appropriate, would be most relevant in this case.
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1 Other less significant areas of prejudice -- well, let
2 me give you one other very significant area of prejudice, and
3 that is the effect this may have on the jury, what this may
4 suggest to the jury. If the jury is to learn, as they might,
5 that the defense experts were allowed to test the defendant
6 but the Government experts did not, that may lead the jury to
7 draw an unfair inference adverse to the Government.
8 Second -- thirdly, the tests themselves, the actual
9 administration of the tests, although in large measure they
10 are objective tests, or many of them are objective tests, test
11 scores and a patient's ability to score high on a test is
12 determined by a whole host of factors. Whether he's
13 depressed, whether he is frustrated, whether he is angry can
14 affect the test scores; whether he is encouraged well by the
15 examiner to do as well as he could on the test, the
16 surrounding circumstances. Is there noise in the next room?
17 Are there distractions in the next room? Had the patient been
18 up all night the night before? All of those factors could
19 affect the scores that someone gives on a test. And we set
20 forth some of that in our papers for the Court with a citation
21 to one of the treatises in the area that sets this forth in
22 great detail. We don't know the answer to any of those
23 questions, because we weren't administering the test. We
24 don't know the surrounding circumstances. So the inferences
25 that we can draw from the tests and conclusions from them are
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1 skewed somewhat until we know that information. We would only
2 know the information if we administered the tests ourselves.
3 And finally, Your Honor, there would be certain
4 advantages in determining what affliction, if any, the
5 defendant has from observing him at the time he is
6 administering the test and having some interaction with the
7 defendant in terms of the administration of the examinations
8 or the tests. And we are, again, precluded from doing that,
9 and that is something the defense has been allowed to do.
10 So those are the prejudices that flow from the testing
11 part of this.
12 THE COURT: Have you made all the argument you want to
13 make on the factors?
14 MR. CLEARY: I have, Your Honor.
15 I would, if I can just go back -- I know Your Honor
16 doesn't want to get into the dispute between the parties or
17 the negotiations between the parties on the testing, but I
18 just wanted to let you know, without going into detail, there
19 were a number of other proposals the defendant made, in terms
20 of this compromise meet-and-confer we had last night and today
21 that we felt are unacceptable because it would leave the jury
22 with a distorted view of what the facts are. And that's the
23 reason we rejected their proposal last night and today.
24 And in terms of prejudice, I think that I've answered
25 the best I can.
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1 THE COURT: I only asked you about the prejudice factor,
2 but, as I understand the law, I am required to analyze each
3 factor and make a ruling. And it's up to you whether you
4 address other factors.
5 MR. CLEARY: Can I have one moment, Your Honor?
6 THE COURT: Yes.
7 (Discussion off the record among the Government
8 attorneys.)
9 MR. CLEARY: Your Honor, just briefly, two of the other
10 factors I'd like to comment on, just very briefly.
11 One is the willfulness thing, and we believe, the
12 Government's position all along has been that this is
13 contumacious, willful conduct and the Court should take that
14 into account in fashioning an appropriate remedy. And I think
15 the best indication of that is, really, kind of the history of
16 where we've been with this litigation, that we went for months
17 litigating various parts of this issue, our right to examine
18 and how we're going to do it, the terms and conditions of the
19 examination, and it wasn't until the eleventh hour that we
20 were apprised, first, that the defendant is afraid of -- first
21 that he wasn't going to submit to any testing with no excuse
22 whatsoever, any testing or examination, no excuse whatsoever;
23 then after that that he was afraid of psychiatrists; and then
24 after that that he was afraid of Government psychiatrists.
25 And I think the Court should take that history of events into
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1 account in determining the degree or the aggravated nature of
2 the willfulness in this case.
3 Secondly, in terms of lesser sanctions, which I believe
4 is one of the other factors, in our view, the Court should
5 impose what we've been calling our fallback position as a way
6 to hopefully compel the defendant, to coerce the defendant
7 into submitting to an examination by Government psychiatrists,
8 so that the search for the truth -- and that's what this
9 should be, this ability to get truthful non-misleading facts
10 before the jury -- we still hold up some hope that if the
11 Court upholds the measures we're suggesting that we may be
12 able to get an examination of the defendant. And let the
13 chips fall where they may; whatever the results of the
14 examination are, that's what they are. And that's what we're
15 hoping for.
16 Thank you, Your Honor.
17 MR. SOWARDS: Just very briefly, Your Honor.
18 The question which the Court has asked all along, with
19 respect to the sanctions question, is, given that the
20 Government may not have access to what it considers an optimal
21 set of circumstances in terms of examining the defendant, the
22 question the Court has asked repeatedly is: what is
23 prejudicial about something less than the optimal examination
24 procedures?
25 And I believe Mr. Cleary's responses to the Court today
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1 again rehash or repeat their request for optimal conditions
2 and never convincingly point out a way in which they will be
3 significantly prejudiced if they do not have that, all of
4 which, what Mr. Cleary recited for the Court today is exactly
5 the stuff of either cross-examination of defense experts or
6 argument and instruction to the jury with respect to the
7 inferences they should draw in -- from the Government not
8 having full access to that which they describe as an optimal
9 way of testing the evidence.
10 Additionally, the Government does not explain the
11 significant prejudice, if any, when both the defense and the
12 Government experts will be essentially proceeding from the
13 same base of information, that being the neuropsych data as
14 well as all of the life history documents and the massive
15 amount of social and medical history that is available to both
16 sides.
17 With respect to the one psychiatrist that we have asked
18 or sought to have testify is a person who observed but did not
19 conduct a clinical interview of Mr. Kaczynski for I believe it
20 was just under or perhaps just over an hour that she observed
21 this. If -- and I believe it was Dr. Resnick in his
22 declaration -- if he feels that there is a clinical basis for
23 justifiably arguing that a trained clinician cannot put out of
24 their conscious mind the information that they observed or
25 received in that setting and testify to the jury with respect
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1 to their reliance solely on all of the other information
2 that's available to the Government, then certainly that would
3 be a persuasive argument to make to the jury; in other words,
4 that Dr. Resnick would be saying that this person should not
5 be relied on because he or she has been contaminated by this
6 brief exposure.
7 But with that one narrow exception, everything that we
8 would be relying on, the Government is relying on. And in the
9 bargain we will forgo reliance on two psychiatrists who did
10 have more extensive exposure to Mr. Kaczynski.
11 THE COURT: The Government argues -- at least the way I
12 understand the Government's argument is that I should exclude
13 the neuropsychological tests that you want to rely on. How is
14 that evidence material to your case?
15 MR. SOWARDS: I think, Your Honor, that that evidence is
16 material to the case because it provides, as we've been
17 saying, an objective basis for finding that Mr. Kaczynski --
18 and this matches up, by the way, I should say, with the
19 sociological data, the family genealogy and family history,
20 but it shows a longitudinal analysis of his situation that
21 begins with the family and shows a genetic risk or
22 predisposition for schizophrenia; it is consistent with
23 contemporaneous witness observations of his motoric
24 impairments as a youngster, and then it shows, on the basis of
25 the testing, a constellation of relative deficits.
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1 And the Government also makes this point: that they're
2 relative deficits in relation to his superior intelligence,
3 and there are also some absolute deficits, meaning they would
4 be deficits for any, quote, normal individual.
5 And that combination of deficits -- they're primarily
6 right temporal lobe impairments in Mr. Kaczynski -- are
7 strongly correlated in the research data, the research and
8 literature funded by the National Institute for Mental Health,
9 that shows schizophrenia to be, or the source of it to
10 actually be an organic brain disorder. It's not just a free-
11 floating mental illness but actually arises from the
12 individual's predisposition and neurological impairment, which
13 makes them then vulnerable to environmental stressors that
14 will cause the actual onset of the illness.
15 And so this is a significant and material component in
16 that it is hard scientific data that says he has that deficit
17 at exactly the place that the research shows a high
18 correlation with -- in schizophrenia patients.
19 THE COURT: Aren't the test results that were yielded in
20 the 1959 neuropsychological test the same or similar to the
21 ones you're now referencing?
22 MR. SOWARDS: They're not, Your Honor, and to the extent
23 there is confusion there, it's probably my fault in discussing
24 them together.
25 The 1959 tests that we've been referencing are during
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1 Mr. Kaczynski's sophomore year, I believe it was, at Harvard,
2 was administered the MMPI that the Government is talking
3 about. The MMPI is what they call personality testing. And
4 the difference between personality testing and neurological
5 testing is that personality tests get a score based on the
6 examinee's endorsement of certain answers, which are then
7 normed to categories of diagnoses, of potential diagnoses.
8 And so the results you get will say an individual having this
9 kind of score tends to be someone who may have the following
10 symptoms that are associated with a particular kind of either
11 personality disorder or illness or whatever.
12 So it's sort of an actuarial comparison. The difference
13 is that neurological data and testing is the sort of X-ray
14 that the Government was talking about last time. That is a
15 patient/examinee-specific test which measures individual
16 impairments in functioning. So it's not that an individual
17 who got these scores looks sort of like this category of
18 individuals. What it says is, a patient getting these scores
19 has these impairments in these areas of the brain.
20 The significance of the Harvard MMPI was that
21 Mr. Kaczynski at that time in his life, when he was
22 approximately 19 years old, 19, 20 years old, endorsed a very
23 high scale for social isolation, among other things, and there
24 was a constellation, again, of sort of personality traits
25 which, again, in the literature and over time as funded by
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1 NIMH studies, has again consistently shown a high correlation
2 of consistency between adolescents with that sort of an MMPI
3 profile and later onset of schizophrenia.
4 The MMPI -- and I beg to differ with Mr. Cleary; I don't
5 know exactly where he's getting his information, but the MMPI
6 is not a probative diagnostic instrument for diagnosing
7 schizophrenia. There's some confusion about it because of the
8 several scales that it measures. One of them is designated a
9 schizophrenia scale. But' it doesn't mean that the person who
10 scores high score on that has schizophrenia or is at risk to
11 it. It simply shows that they endorse certain answers that
12 have a kind of internal inconsistency.
13 It's used in some clinical contexts, where a person --
14 like an E.R. room or a clinic situation where someone is
15 coming in and they have to make a snap decision about whether
16 there might be some overriding major neurological impairment
17 or organic problem explaining psychotic-like behavior, like a
18 brain tumor. If they can, they may administer that kind of a
19 personality screening.
20 But where you have this kind of history -- and this is
21 what all of the experts tell us we have -- this kind of a
22 history, neurological data and, you know, his writings and his
23 behaviors and everything else, the MMPI would be wholly
24 superfluous, would not be indicated.
25 THE COURT: So your position, then, is that the
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1 neuropsychological test is material to Mr. Kaczynski's case?
2 MR. SOWARDS: That would be my position; yes, Your
3 Honor.
4 THE COURT: Then if it's material would you explain why
5 the Government would not be prejudiced if I allowed that
6 evidence to be admitted before the jury?
7 MR. SOWARDS: Sure. Because of the standardized testing
8 procedures that are followed. Unless their concern is that
9 the individual administering the examination intentionally
10 fudged the results -- I mean, was result-oriented -- and I
11 should say that the information that they have available to
12 them includes multiple testers with congruent data. And one
13 of the individuals which they've spoken to at great length is
14 the leading researcher and diagnostician in schizophrenia and
15 neurological impairments in the country.
16 So unless they're concerned that the results of the
17 examination are essentially fraud, the standardized results
18 are standardized results. There's just no two ways about
19 them. If their concern is they want to cross-examine the
20 person, say, "Wasn't it true he was frustrated, angry, sleepy,
21 he was on medication?", all of that is part of the protocol,
22 to make those observations. One of the things the person
23 assesses is that, you know, the person isn't on medication or
24 hasn't been drugged. And so that information can be gleaned
25 from the examiner.
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1 But again -- and I think that Your Honor also touches on
2 an important point, which is: we have repeatedly asked them
3 to speak with their neuropsych expert and tell us, in addition
4 to the additional exams that they may want to administer, tell
5 us whether they have any concerns at all for the reliability
6 of the data in the way it was administered or the clinicians
7 who administered it. And to date we have heard absolutely not
8 a peep out of their expert regarding any reason at all for
9 doubting the objective reliability of the test data we
10 provided.
11 THE COURT: Okay.
12 MR. SOWARDS: So I don't think there is a significant
13 risk of -- that's why I say it really is like the X-ray that
14 both sides have access to and they can draw the inferences or
15 arguments they want to from that. And certainly their
16 psychiatric experts would have access to them.
17 THE COURT: I want you to tell me -- and I'm asking you
18 to tell me this because this is a sanctioning hearing on the
19 guilt phase issue.
20 MR. SOWARDS: I understand.
21 THE COURT: And if I already told me, I don't remember
22 it. I want to know what experts the defense plans on calling
23 for the guilt phase portion of the trial.
24 MR. SOWARDS: And that would be, Your Honor, the two
25 neuropsychologists who administered and interpreted the data
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1 that we provided to the Government.
2 THE COURT: And can you specify what you mean by
3 "data"? Is that --
4 MR. SOWARDS: Right. All the test results; I'm sorry.
5 THE COURT: -- the neuropsychological tests?
6 MR. SOWARDS: Correct.
7 THE COURT: Okay.
8 MR. SOWARDS: And it would be a psychiatrist with a
9 specialty in schizophrenia.
10 May I have just one moment, Your Honor, to make sure I'm
11 not leaving anyone out. Thank you.
12 (Discussion off the record among the defense
13 attorneys.)
14 MR. SOWARDS: Yes, Your Honor. I just wanted to confirm
15 that the one psychiatrist with the expertise in schizophrenia
16 is the person who had observed Mr. Kaczynski for approximately
17 an hour. It would be that individual.
18 THE COURT: What do you mean, observed him for about an
19 hour?
20 MR. SOWARDS: Observed him while he was being
21 interviewed regarding his insomnia by another -- a sleep
22 disorder specialist.
23 And then finally -- I'm sorry, Your Honor -- was a
24 forensic psychiatrist who had not met Mr. Kaczynski at all and
25 had only access to the written information.
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1 THE COURT: My understanding of the sanction the
2 Government requests -- first, the Government requests the
3 ultimate sanction.
4 MR. SOWARDS: Correct.
5 THE COURT: As a fallback position, the Government has
6 requested that I would exclude all experts except for the last
7 one you mentioned.
8 MR. SOWARDS: Right.
9 THE COURT: You haven't discussed, I don't believe, the
10 materiality of the psychiatrist with the specialty in
11 schizophrenia.
12 MR. SOWARDS: Yes, Your Honor. And I'd be prepared to
13 do that now, if the Court wishes.
14 THE COURT: Okay.
15 MR. SOWARDS: We believe, Your Honor, that that
16 individual is -- and her testimony would be material to the
17 defense because of the unique clinical picture presented by
18 Mr. Kaczynski. And that is, in particular, that he is what is
19 regarded as a high-functioning schizophrenic.
20 The clinical literature shows, and this witness would be
21 able to explain to the jury, a number of important factors:
22 first, that schizophrenia accounts or applies to approximately
23 one percent of the population of the United States; that among
24 schizophrenics, violent behavior or criminality, violent
25 criminality occurs at the same rate as in the general
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
23
1 population but goes up dramatically when the individual has
2 paranoid delusions because of the persecutory nature of those,
3 they tend to give rise to violent criminality at much, much
4 higher rates than among the general population or among
5 patients suffering from schizophrenia in general.
6 Mr. Kaczynski is further distinguished in that small
7 percentage of a small percentage of the population by the fact
8 of his superior verbal I.Q., vastly superior verbal I.Q. when
9 measured against the general population, which, in the case of
10 schizophrenia, causes his delusional world to in fact take in
11 the entire world. It's a very elaborate, a very well-
12 organized system of delusion which marks him from -- I
13 wouldn't say more typical but more, perhaps, recognized
14 instances of paranoid schizophrenia that gives rise to violent
15 behavior.
16 And I don't mean at all to trivialize it but, in fact,
17 the classic example is the individual who works in a warehouse
18 or a postal storage facility or something like that where they
19 don't have contact with the public; they have a routinized,
20 routine job that they can just do by themselves sort of unseen
21 by anyone else. But all the time their paranoia and their
22 delusions are at work until one day they show up with a gun
23 and injure or kill co-workers.
24 Those sorts of folks, when they are diagnosed to have to
25 have paranoid schizophrenia, typically have I.Q.'s in the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
24
1 ninety to hundred range. Mr. Kaczynski is far above that, and
2 it is confirmed; it's documented in the literature by
3 researchers with this expertise that that in part explains the
4 elaborate nature of his delusions as expressed in his
5 writings. That is part of it and that is expressed in his.
6 The other important thing, I think, that a jury of lay
7 individuals, certainly lay lawyers in this area missed the
8 fact that an individual of Mr. Kaczynski's verbal intelligence
9 nevertheless suffers these right-hemisphere neurological
10 impairments which give rise to the schizophrenia, so that it
11 explains the -- or argues against the commonly held notion
12 that you can't have a debilitating mental illness, you can't
13 be psychotic and have a delusional view of reality if, in
14 fact, you're so smart.
15 And so what happens a lot with these individuals, and
16 this is addressed in Dr. Froming's declaration that was filed
17 with our supplemental response, is that they mask the mental
18 illness, because the people that they encounter on a casual
19 basis know them only by their verbal abilities which, as long
20 as they don't relate to anything that's part of their
21 delusional structure, come off as, you know, very mentally
22 sound individuals.
23 So she is material, this particular witness is material
24 to explaining not only the general phenomenon of the
25 high-functioning schizophrenic and its relationship to this
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
25
1 case but she will then also be prepared to take the jury
2 through Mr. Kaczynski's life and his writings and his decline
3 in functioning, to show how all of that information is wholly
4 consistent with the diagnosis.
5 THE COURT: But part of her analysis is based upon
6 clinical observations of Mr. Kaczynski. That's what you said.
7 MR. SOWARDS: Well -- and if I said that, Your Honor, I
8 misspoke, because what -- I said she had had that exposure;
9 she is prepared to -- essentially what happened, if I can
10 relate some of the history --
11 THE COURT: You said "clinical picture."
12 MR. SOWARDS: A picture; yes, I'm sorry. And by that I
13 mean the best clinical picture basis for diagnosing
14 schizophrenia, and this is addressed in Dr. Amador's
15 evaluation, is what they call a longitudinal evaluation of the
16 individual, as much information you can get on that individual
17 from birth or even prebirth through the time they're seen.
18 And what Dr. Amador also explains, either paradoxically
19 or ironically enough, is that the clinical -- meaning in a
20 clinic setting -- exposure to the patient is probably the
21 least important when you have all that information,
22 particularly with paranoid schizophrenics, because their
23 tendency is to deny any symptomatology; they want to hide the
24 illness. They lack insight and they also deny
25 symptomatology.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
26
1 So, for instance, Dr. Amador's studies with the NIMH
2 provide a protocol for rendering diagnoses of schizophrenia
3 without ever seeing the patient, and this is funded by the
4 federal government when they're looking at the neurological
5 and historical incidence of schizophrenia as caused by
6 different neurological conditions. They diagnose
7 schizophrenia multigenerational without ever meeting the
8 individuals, based on, you know, much less information than we
9 have in this case.
10 But the psychiatrist that we had in mind was essentially
11 being introduced to Mr. Kaczynski in the hopes that he would
12 find the presence or the company or her demeanor, whatever,
13 sufficiently comfortable to allow further interviews. And as
14 events turned out, she was not able to conduct those or talk
15 to him.
16 So what she was prepared to inform the Court under oath
17 is that any observation or any opinion that she provided to
18 the jury would be made with a conscious exclusion of any
19 observations, any physical in-person observations she made of
20 Mr. Kaczynski.
21 MR. DENVIR: (Indicates document.)
22 MR. SOWARDS: Thank you very much.
23 Message from the front, Your Honor. I'm sorry.
24 (Pause in the proceeding.)
25 MR. SOWARDS: And I think the other important part of
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
27
1 this, Your Honor, in terms of assessing the materiality of
2 this particular witness we're now describing, is that she
3 would be called instead of other psychiatrists with expertise
4 in the area of schizophrenia who had multiple hours of
5 exposure to Mr. Kaczynski, so that we do put ourselves on an
6 equal footing with the Government.
7 THE COURT: I'm trying to gauge what footing you are
8 referencing. You indicated that the psychiatrist had made
9 personal observations of Mr. Kaczynski while he was examined
10 by someone else --
11 MR. SOWARDS: Correct.
12 THE COURT: -- for insomnia.
13 MR. SOWARDS: Correct.
14 THE COURT: And I assume you told me that because it was
15 important to your position. And then you also mentioned a
16 clinical picture. And typically you think of clinical
17 pictures as referencing hands-on type of interactions between
18 a physician and a patient, where observations are made and are
19 used in formulating opinions. And then at the very end of
20 your argument, you seemed to indicate that we should forget
21 all that because the witness is not going to rely upon any of
22 that information. If that's so, I'm wondering why you told me
23 what you've told me in the first place.
24 MR. SOWARDS: All right. And I apologize, Your Honor,
25 for the lack of clarity. When I used the term "clinical
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
28
1 picture," what I meant was all of the information that is
2 revealed primarily on the basis of the historical data -- what
3 I'm saying is everything that's available to the Government:
4 the writings; the family history records; social-medical
5 history records; and the neuropsychological test results from
6 the two neuropsychologists.
7 What I was also explaining to the Court and frankly
8 acknowledging is the problem we had is that there was this
9 period of observation when someone else was talking to
10 Mr. Kaczynski about his sleep disorder and we thought it was a
11 good opportunity for this doctor to just make his
12 acquaintance. So she was not involved in the assessment or
13 evaluation; she was -- but I could not, obviously, suggest
14 that she wasn't, in a sense, laying eyes on him and observing
15 him, but that her diagnosis and her opinion that she would be
16 presenting to the jury would not rely on her visual
17 observation of Mr. Kaczynski. She would limit herself to
18 rendering an opinion based on her review of the written data
19 that we had to provide to her.
20 THE COURT: I need to have you repeat what you've just
21 said.
22 MR. SOWARDS: Sure.
23 THE COURT: Did you tell me that the doctor will not
24 rely on the physical observations? Is that what you said?
25 MR. SOWARDS: Correct.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
29
1 THE COURT: Okay.
2 MR. SOWARDS: And I'm sorry for blending all that
3 together initially when I used the term "clinical picture."
4 And then what I was also saying was so that would be
5 in -- she would be in distinction to the doctors who had been
6 able to -- the psychiatrists who had been able to conduct more
7 extensive interviews, or extensive interviews, with
8 Mr. Kaczynski, those individuals who were referenced in our
9 opposition and whose declaration, one of them, Dr. Foster,
10 that we appended to our opposition to the sanction motion.
11 Because of his interview with Mr. Kaczynski, we were willing
12 to forgo his participation.
13 THE COURT: I'm going to look at all of the written
14 material again when I sit down to write my order. When I look
15 at that written material, will I see any opinions by
16 physicians or psychologists that support the arguments you are
17 now making?
18 MR. SOWARDS: Yes. In particular, Your Honor, I would
19 invite the Court's attention to the declaration of Dr. Xavier
20 Amador. If I may reference that for you.
21 (Pause in the proceeding.)
22 MR. SOWARDS: That, Your Honor, was filed as Exhibit A
23 to the defendant's supplemental brief in opposition to the
24 Government's motion filed with the Court on, I believe,
25 November 18th. I'm correct; November 18th.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
30
1 THE COURT: I have that exhibit. What aspect of this
2 exhibit -- do you know what paragraph supports what you're
3 telling me orally here?
4 MR. SOWARDS: (Examines document.)
5 If I may just take a moment, Your Honor. I apologize
6 for this. There was a reference to the clinical interview.
7 (Examines document.)
8 THE COURT: Do you understand that I'm seeking to
9 determine --
10 MR. SOWARDS: Yes.
11 THE COURT: -- if this declaration supports your
12 position on materiality?
13 MR. SOWARDS: Correct.
14 THE COURT: All right.
15 MR. SOWARDS: Beginning, Your Honor, with paragraph 11.
16 THE COURT: (Examines document.)
17 MR. SOWARDS: And paragraph 12.
18 THE COURT: I don't see anything in paragraph 11 that
19 supports that proposition. Looking at paragraph 12, there's
20 information that seems counter to the proposition.
21 MR. SOWARDS: I was referencing, Your Honor, with
22 respect to paragraph 12, the last two sentences, explaining
23 that a patient with the same symptoms as Mr. Kaczynski would
24 not be given the diagnosis of schizophrenia, continuous
25 paranoid subtype, if he had not evidenced signs of illness for
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
31
1 at least six months, and then the differential diagnosis that
2 would have to be given just based on if he'd been evaluated in
3 a clinic, and that the better information is the longitudinal
4 information, which is referenced in paragraph 11.
5 THE COURT: I'm looking at the second sentence.
6 MR. SOWARDS: Where is that, sir? I'm sorry. In
7 paragraph 12?
8 THE COURT: Paragraph 12.
9 THE COURT: Because schizophrenia --
10 MR. SOWARDS: Right.
11 THE COURT: -- longitudinal based diagnosis, other
12 sources of information, such as a patient's writing and work
13 history can carry more weight than information gleaned from
14 direct clinical interview.
15 MR. SOWARDS: Right. That's actually probably a better
16 phrase -- a better portion of the paragraph. That, and then
17 in an earlier, Your Honor, in paragraph 8.
18 THE COURT: You understand that I'm trying to determine
19 why the defense opines that the clinical interview involved
20 with the administration of the neuropsychological test is
21 material evidence. And I understand that counsel for the
22 parties have been arguing their client's respective positions
23 in regard to the matter, but I'm trying to see if the argument
24 is supported by medical evidence.
25 MR. SOWARDS: Okay. And let me, then, also, Your Honor,
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
32
1 correct if I again have blended these two together -- our
2 neuropsychological evaluation, or the testing, the objective
3 neuropsychological testing, was not accompanied by anyone
4 conducting at that time a clinical interview. No one who has
5 attempted a clinical interview of Mr. Kaczynski would be
6 someone who we were calling. We offered the opportunity --
7 THE COURT: Why do you need two neuropsychologists,
8 then?
9 MR. SOWARDS: Oh, it's only because one did the -- when
10 we talked earlier, one did a more general screening battery
11 and testing, and then based on the test results when
12 Mr. Kaczynski was transferred down to California, someone
13 locally did some more fine tuning of the information. But all
14 they did was administer the tests in the standardized format.
15 We were hoping for the benefit of their experts, if they
16 wanted to hear Mr. Kaczynski answer --
17 THE COURT: But why do you need them?
18 MR. SOWARDS: We don't. We thought that was responsive
19 to their concern that they had no one, no psychiatrist who had
20 actually been able to gauge or observe Mr. Kaczynski just
21 answer questions or view his manner of speaking or
22 responsiveness to questions. We thought if that was important
23 to them, we would give them that opportunity.
24 THE COURT: You have opined that the test results are
25 material?
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
33
1 MR. SOWARDS: Correct.
2 THE COURT: Can we view the test results in a vacuum,
3 apart from the clinicians who administered the tests? Are the
4 clinicians or neuropsychologists material?
5 MR. SOWARDS: The neuropsychologists are material in the
6 sense of explaining to the jury what the tests are and what
7 they measure and what the results mean. Perhaps if the
8 Government -- I don't know if they would be willing to reach a
9 stipulation on that; it sounds like they want to do the
10 opposite, and I can understand that, from their perspective.
11 But I think what they would have to -- absent a stipulation
12 that the test results are accurate and mean what our experts
13 say -- I think they would have to present as live witnesses
14 subject to cross-examination, which is why we wanted to call
15 them.
16 THE COURT: Okay. I think I understand your position.
17 MR. SOWARDS: Okay. Unless Your Honor has other
18 questions on that --
19 THE COURT: I do.
20 MR. SOWARDS: You do. Okay. Good.
21 THE COURT: On a different issue. We can revisit this
22 issue if the Government wants to respond, but since you're at
23 the podium, I'm going to ask you another question.
24 MR. SOWARDS: Fair enough.
25 THE COURT: The sentencing phase issue -- I read your
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
34
1 brief, and I realize that you opine that notice is needed
2 before I order an examination.
3 MR. SOWARDS: Correct.
4 THE COURT: I agree with you. But notice is probably
5 not needed if it's clear that a criminal defendant has, in
6 fact, placed his mental status in issue. And the argument you
7 made earlier -- but that was in connection with what I assumed
8 was a breakdown of the parties' negotiations to try to resolve
9 an issue.
10 MR. SOWARDS: Correct.
11 THE COURT: And so maybe that argument doesn't apply to
12 the sentencing phase issue I'm now addressing.
13 MR. SOWARDS: Right. And what I meant to indicate, Your
14 Honor, was that --
15 THE COURT: Well, let me tell you what I'm thinking.
16 I'm trying to determine whether your client has already
17 decided to place in issue a mental status type of a defense as
18 a mitigating factor in connection with the sentencing phase of
19 the proceeding, should it reach that phase.
20 And I had discerned that you indicated that in your
21 earlier comments, but I'm not sure that you intended me to use
22 those comments in the manner in which I'm indicating I'm
23 contemplating using them, and I'm trying to get some
24 clarification from you on it.
25 MR. SOWARDS: And not only had I not intended, Your
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
35
1 Honor, but I'd hoped I had actually reserved the right to
2 disclose to you the status of the negotiations just so you
3 knew where things were, but without prejudice to or waiver of
4 our ability to litigate whether notice and an examination
5 could be ordered. So no, I did not mean to -- that
6 clarification or bringing the Court up to date to amount to
7 either a judicial admission or otherwise concede the issue of
8 the notice requirement.
9 THE COURT: Okay. That's one of the points that's
10 raised by the Government. The Government does raise the
11 question of judicial admission.
12 MR. SOWARDS: Correct.
13 THE COURT: They raise it in connection with a
14 proceeding before Magistrate Judge Hollows.
15 MR. SOWARDS: Correct.
16 THE COURT: And you disagree with the Government on that
17 point?
18 MR. SOWARDS: I do, Your Honor, for the reasons that we
19 addressed in our brief responding to the Court's questions,
20 and in particular -- this is at pages 5 through 10 -- that
21 under the Ninth Circuit definition of what constitutes a
22 judicial admission, the discussion with Judge Hollows, both in
23 the moving papers and the hearing before him last summer, did
24 not constitute a forthright acknowledgment or admission of a
25 factual matter. And I would almost -- or also suggest, as
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
36
1 illuminated by the Ninth Circuit authority, the concept of
2 judicial admission, sort of the hallmark of that is the sort
3 of intentional, forthright statement of a factual situation.
4 And the briefing and argument before Judge Hollows was
5 more in the nature of, given the conceivable scope of
6 mitigating evidence and aggravating evidence that could be
7 introduced at the penalty phase, what are the affirmative
8 obligations of disclosure by the Government? So it was all
9 Government disclosure, not defense showing at that phase.
10 THE COURT: As far as the penalty phase issue is
11 concerned, I have a tentative ruling.
12 MR. SOWARDS: Okay.
13 THE COURT: But before I give that, I'm going to ask you
14 another question. The tentative ruling will have aspects of
15 it that favor the defense as far as the notice issue is
16 concerned. And it will favor the Government as far as --
17 well, I'm not sure that it will favor the Government.
18 I think I have the authority to require notice. I also
19 believe I have the authority to allow an examination in the
20 appropriate circumstances. And defining what's meant by
21 "appropriate circumstances" may end up not favoring the
22 Government, and I haven't defined that yet.
23 But if I decide that notice is appropriate, from the
24 defense's perspective when should I require notice? I'm
25 talking about a sentencing phase issue.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
37
1 MR. SOWARDS: Well, because I had been proceeding on the
2 assumption I'd be arguing to the Court that notice was not
3 appropriate to order --
4 THE COURT: You can reflect on that. I'm going to give
5 my tentative on that issue.
6 MR. SOWARDS: Okay. Thanks.
7 THE COURT: My discernment as far as the guilt phase
8 issue is concerned, I'm going to hear further argument on it,
9 and then I'm just going to write an opinion that resolves that
10 issue. I cannot rule from the bench. I want to analyze all
11 arguments, plus the arguments made today.
12 But on the sentencing phase, I'm going to see if we can
13 resolve that issue today.
14 Okay. You don't have to stand.
15 MR. SOWARDS: I can go sit down. All right.
16 (Complies.)
17 THE COURT: On November 5, 1997, the Government moved
18 for an order compelling Kaczynski to submit to a mental
19 examination to assist the Government in preparation for the
20 penalty phase of the trial. At the hearing on the motion on
21 November 21, I requested both parties to address whether
22 obtaining notice from Kaczynski of his intent to introduce
23 evidence of his mental status in the penalty phase was a
24 prerequisite to ordering the examination and whether I had the
25 authority to require such notice.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
38
1 The Government argued that it did not -- and I'm now
2 quoting from the transcript at 1215, lines 3 to 5: it did
3 not "believe it's necessary for the Court to require
4 [Kaczynski] to provide notice before he is required to undergo
5 a mental examination." And, alternatively, the Government
6 asserted that if it was required, Kaczynski had given
7 sufficient notice through representations made during
8 proceedings before Magistrate Judge Hollows. That's in the
9 transcript, 1214, lines 19 to 22. Kaczynski countered that
10 notice was required and had not yet been given, although I
11 think I raised that issue sua sponte, on my own motion, at
12 that hearing, and Kaczynski agreed with my analysis.
13 Because a criminal defendant may invoke the Fifth
14 Amendment privilege against self-incrimination during the
15 penalty phase of a capital trial, the Supreme Court has held
16 that -- I'm now quoting: "A criminal defendant who neither
17 initiates a psychiatric evaluation nor attempts to introduce
18 any psychiatric evidence may not be compelled to respond to a
19 psychiatrist if his statements can be used against him at a
20 capital sentencing hearing," close quote, Estelle vs. Smith,
21 451 U.S. at 468.
22 However, the Supreme Court recognized that "a different
23 situation arises where a defendant intends to introduce
24 psychiatric evidence in the penalty phase." At 472. This is
25 because "by indicating that he intends to introduce
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
39
1 psychiatric testimony," a criminal defendant essentially
2 "waives his right to remain silent." Savino vs. Murray,
3 82 F.3d at 604 (4th Cir. 1996).
4 Absent such a waiver, however, a defendant retains his
5 Fifth Amendment right to refuse to participate in a
6 psychiatric interview. The three district court opinions
7 cited by the Government in support of its motion for a penalty
8 phase examination all declined to order a mental examination
9 until the defendant provided notice of his intent to rely on
10 mental health expert testimony in the penalty phase. See
11 United States vs. Haworth, 942 F. Supp. at 1408, where the
12 Court states, "The Government will not be entitled to a
13 court-ordered independent examination unless and until the
14 defendants give notice that they intend to introduce
15 psychiatric evidence at the penalty phase"; United States vs.
16 Beckford, 962 F. Supp. at 761, where the Court states
17 the "balance between securing a defendant's Fifth Amendment
18 rights and affording the Government a meaningful right of
19 rebuttal on mental health issues. . . is best struck
20 by . . . requiring reasonably early notice by the defendants
21 that they intend to rely on mental health or mental conditions
22 in mitigation of death in the penalty phase. . . . ";
23 United States vs. Vest, 905 F. Supp. at 653, where the Court
24 states, "The Court will not order an examination unless a
25 defendant first indicates that he plans to introduce mental
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
40
1 health testimony. . . . "
2 Therefore, each of the cases the Government cited in
3 support of an examination all required notice, and I agree
4 with those decisions. And I believe that the Fifth Amendment,
5 as interpreted by Smith and its progeny, prohibits ordering a
6 defendant to submit to a mental examination unless he first
7 provides notice of his intent to rely on mental health expert
8 testimony in the penalty phase.
9 The Government argues alternatively that the Court need
10 not require notice to satisfy the Fifth Amendment requirements
11 in this case because Kaczynski has already indicated his
12 intent to introduce psychiatric testimony in the penalty
13 phase.
14 I don't find that argument persuasive. That argument,
15 in essence, relies on the judicial estoppel doctrine. That's
16 a doctrine that involves the discretion of the Court, and the
17 Court makes a determination as to whether a fact has been
18 proved or based upon statements made by a party in the lawsuit
19 and whether, as a matter of fairness, a party should be bound
20 by that fact. See American Title Insurance Company vs.
21 Lacelaw, 861 F.2d 224, 227 (9th Cir. 1986). I'm not going to
22 invoke that doctrine in a capital case like this one.
23 I distilled these as the issues to be argued here today,
24 and on December 16, 1997, I in essence reflected this
25 conclusion by asking you to be prepared to argue whether the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
41
1 Court has the inherent authority to require Mr. Kaczynski to
2 provide notice of his intent to rely on mental health expert
3 testimony in the penalty phase.
4 At the time I issued that order, I had not completed my
5 analysis. Since issuing the order, I now have a view on the
6 issue which I will give you, because you should have this view
7 in mind when you argue, because unless your arguments change
8 the view, I will adopt what I'm now stating as my ruling in
9 this case.
10 No rule or statute explicitly provides the Court with
11 authority to order Kaczynski to give notice of his intent to
12 rely on mental health experts in the penalty phase or to
13 submit to a mental examination for that phase. However, the
14 Supreme Court has recognized district courts "may, within
15 limits, formulate procedural rules not specifically required
16 by the Constitution or Congress." Carlisle vs. United States,
17 116 S.Ct. 1466 (1996); see Federal Rule of Criminal Procedure
18 57(b), providing that where no law or rule is directly
19 applicable, "[a district] judge may regulate practice in any
20 manner consistent with federal law, [the federal] rules and
21 local rules of the district." "Confronted with situations in
22 which the Federal Rules of Criminal Procedure were not
23 applicable, courts historically have invoked inherent judicial
24 powers" to address problems and to craft appropriate solutions
25 for them. Beckford, 962 F. Supp. at 754.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
42
1 However, a court may not exercise its inherent authority
2 in a manner inconsistent with rule or statute. Heileman,
3 871 F.2d 648, 652 (7th Cir. 1989); it's an en banc decision by
4 the Seventh Circuit. Therefore, the Court's inherent
5 authority should be invoked, if at all, in a manner that is in
6 harmony with the procedures prescribed by Congress for cases
7 involving the death penalty statute.
8 Kaczynski argues that ordering him to provide notice of
9 his intent to rely on mental health expert testimony during
10 the penalty phase would be inconsistent with the statutory
11 scheme reflected in Title 18 United States Code Section 3593.
12 That section, at least Part (a) of that section, is
13 titled "Notice by the Government," and it specifically
14 provides that if the Government believes that the death
15 sentence is appropriate, it shall file and serve on the
16 defendant a notice stating its belief that the death penalty
17 would be justified if the defendant is convicted. The notice
18 is required to set "forth the aggravating factor or factors
19 that the government . . . proposes to prove as justifying a
20 sentence of death."
21 Since the statute is silent on whether a defendant is
22 required to provide the Government with notice of the
23 mitigating factors on which he will rely in the penalty phase,
24 Kaczynski argues that "absence of any defense notice
25 obligations in [the statute] necessarily gives rise to the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
43
1 'negative implication' that Congress did not intend to impose
2 such obligations." However, as stated in Heileman, the mere
3 absence of language in a federal statute specifically
4 authorizing or describing a particular procedure does not
5 necessarily give rise to "a negative implication or
6 prohibition." At 871 F.2d 652.
7 Kaczynski supports his position by pointing to failed
8 post-enactment attempts to amend the statute to include a
9 notice provision for mitigating factors. And then he cites
10 such failed attempts.
11 I cited in the order which I gave the parties so that
12 they would be prepared to brief issues a Ninth Circuit opinion
13 that indicates if there's a failed attempt to amend existing
14 legislation, that's not significant evidence of the intent of
15 Congress.
16 Kaczynski argues that the plain terms of Section 3593
17 and the post-enactment legislative history preclude the Court
18 from exercising its inherent authority to order notice, citing
19 the Ninth Circuit decision in Hicks as support for his
20 position. In Hicks, the Ninth Circuit held that the district
21 court had acted beyond its authority when it required the
22 parties to exchange witness lists in advance of trial. The
23 Ninth Circuit reasoned that there was no authority for the
24 order because neither the rule itself nor its legislative
25 history authorized the exchange of witness list. In fact, the
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
44
1 Ninth Circuit cited the legislative history of Rule 16 that
2 demonstrated that Congress had considered enacting a version
3 containing a provision for the exchange of witness lists but
4 had explicitly rejected it in favor of a version without the
5 provision. Thus, Hicks reveals the Ninth Circuit's agreement,
6 although it didn't state this, that "inherent power is not a
7 license for federal courts to do whatever seems necessary to
8 move a case along." That was stated by Heileman, 871 F.2d at
9 666.
10 But the legislative posture in Hicks is different than
11 that in this case. Here, the exercise of inherent authority
12 to require notice is not inconsistent with congressional
13 intent. There is no inconsistency here, since Congress
14 explicitly provided the Government with a statutory right to
15 rebut any mitigating information provided by a defendant,
16 18 U.S.C. Section 3593(c).
17 As recognized in the cases cited by the Government, at
18 least in Beckford and Wabash, that type of language in the
19 statute does provide the Government with the opportunity --
20 should provide the Government with the opportunity to, at
21 least in the mental health area, receive notice of what a
22 defendant contemplates presenting.
23 I think there's other things I could say, but I think
24 I've said enough. It is clear to me that I have the inherent
25 authority to require notice. And my inclination is to require
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1 notice. The Government, however, didn't move the Court for an
2 order requiring notice; it moved the Court for an order
3 requiring an examination.
4 I think that we need to decide the notice question
5 first. And I need to look at the notice to determine whether
6 an examination will be required and the scope thereof.
7 That's my tentative ruling. Who wants to argue first?
8 MR. CLEARY: Your Honor, do you want us to go back and
9 reply to the guilt phase argument first, or do you want to
10 deal with the sentencing?
11 THE COURT: I want to deal with the sentencing phase and
12 get it out of the way; then we can move back to the guilt
13 phase, unless you want to break and return after lunch.
14 MR. CLEARY: Whatever's convenient with the Court.
15 THE COURT: Let's -- can you do that? Do you want to
16 break and return after lunch?
17 MR. DENVIR: Whatever the Court wants. We can
18 continue. Whatever the Court's pleasure is.
19 THE COURT: I can continue, but let me talk to my staff.
20 (Discussion off the record.)
21 THE COURT: My staff is willing to proceed.
22 MR. WILSON: Your Honor, I think we agree with much of
23 the Court's analysis this morning, and if the issue is whether
24 the Government has moved for notice or needs to move for
25 notice, if it's a necessary prerequisite that the Government
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 move for notice, then we would move for notice now and, if
2 necessary, file a document saying so today, if that's the only
3 bar to the Court's requiring notice.
4 And then we would be willing to proceed with the Court's
5 analysis to -- after receiving the notice -- determine,
6 litigate or however determine that the scope of the
7 examination that would follow.
8 THE COURT: Why don't you respond to the question I
9 asked the defense: when do you think notice should be given?
10 MR. WILSON: We think notice should be given immediately
11 after ordered by the Court. In the three district court cases
12 that have been discussed throughout this proceeding, it was
13 ordered prior to trial. There's no particular reason why it
14 can't be ordered prior to trial in this case. And it would
15 serve the purposes of the notice, obviously, for the
16 Government to know sooner rather than later and for the Court
17 to know sooner rather than later whether the defendant intends
18 to put on mental health testimony at the penalty phase.
19 THE COURT: Okay. All right.
20 MR. WILSON: Thank you.
21 MR. SOWARDS: Thank you, Your Honor for the
22 opportunity. I just wanted to address a few observations with
23 respect to the case law cited by the Court for the Court's
24 consideration to the extent you do wish to reconsider the
25 issue about notice.
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1 And that is just, very, very quickly -- the Court had
2 drawn our attention to Tahoe Regional Planning vs. McKay,
3 which is the Ninth Circuit case that said under certain
4 circumstances the failure to amend a previously adopted
5 enactment wasn't really dispositive about what was and wasn't
6 required by the enactment. The thing I would point out that I
7 think is interesting about this case is in Tahoe Planning what
8 they were talking about was a 1960 statute, a public meeting
9 statute, and the question was whether there should be an
10 attorney-client exception for meetings between the Nevada
11 Attorney General and the Tahoe Commission, I guess. And the
12 rejected amendments arose in 1977, seventeen years after the
13 attempted enactment, so that ruling wasn't that dispositive of
14 what was intended by the legislature.
15 THE COURT: What proposition are you advancing?
16 MR. SOWARDS: I'm advancing the proposition, Your Honor,
17 that the Court was correct in being disturbed by the
18 legislative history of the federal death penalty act which was
19 adopted in 1994 and immediately thereafter the Justice
20 Department tried in two successive legislative sessions to get
21 the Court them to adopt the notice provision that the Court is
22 now considering.
23 And what I'm suggesting there with respect to Tahoe
24 Planning is that there was an immediate adoption by the
25 statute, and in fact what we're talking about with all these
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 cases, with Beckford, Haworth and Vest, is the predecessor to
2 the 1994 statute. So that also did not include a notice
3 provision when it was included in the current form of 1993.
4 There still isn't a defense notice proposition. As Mr. Wilson
5 explained to the Court, that was still of some concern to the
6 Department of Justice.
7 THE COURT: I still don't see the proposition. Are you
8 indicating that because of the closeness, of proximity to the
9 enactment and the amendment, this situation should be viewed
10 differently?
11 MR. SOWARDS: Correct, Your Honor. I'm distinguishing
12 that from Tahoe Planning because it was immediately after --
13 because not only is it immediately after the enactment that
14 they tried to amend it, but also what we have is an adoption
15 of a second statute and Congress' continued failure, whether
16 conscious or not, to -- failure to include the defense notice
17 requirement.
18 THE COURT: But "whether conscious or not" is important,
19 isn't it? Because if it's conscious, that could give rise to
20 the negative implication doctrine. But when you say "or not,"
21 if it's not conscious, then that probably does not give rise
22 to the negative implication doctrine. And that's my
23 discernment: that it doesn't give rise to it.
24 MR. SOWARDS: Right. And my suggestion was, Your Honor,
25 that it wasn't because of the reason given in Tahoe Regional
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1 Planning that the Court should go one way or another on that,
2 especially in finding that it wasn't a conscious decision. I
3 would agree that that fact alone is not dispositive of what
4 Congress intended.
5 I think when you then look at it as part of the overall
6 legislative scheme, you do see that the balance tips in favor
7 of finding a congressional intent to exclude it. And those
8 two things that I would ask the Court to reflect upon are the
9 analysis undertaken by the United States Supreme Court in
10 Lindh vs. Murphy, which was discussed in our pleadings, again
11 with the federal death penalty habeas corpus statute, where,
12 again, they used the analysis that Your Honor mentioned
13 earlier, that where the legislature has specifically included
14 a provision as to one set of circumstances and hasn't to the
15 other, that is more reflective of a conscious choice and
16 decision than it is just mere oversight. So that is an
17 additional factor which would weigh in favor of a conscious
18 decision not to require the defense notice.
19 THE COURT: Three district courts disagree with you.
20 MR. SOWARDS: Sure. And let me, then, if I may, just
21 very briefly address those.
22 The three district courts -- the way we started out on
23 this was, again, with Your Honor illuminating the parties that
24 the three district courts in question were not within the
25 Ninth Circuit and that, in particular, Your Honor pointed out
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1 the distinction between the Ninth Circuit's analysis and the
2 Fourth Circuit's analysis.
3 THE COURT: Right.
4 MR. SOWARDS: When we look at Hicks, I think, correctly
5 read, there are two parts to Hicks. One is the part Your
6 Honor referred to a moment ago: that the intervening
7 legislative history over 20 years was very consistent with a
8 conscious rejection of exchange of witness list under
9 Rule 16. What I would invite the Court's attention to is the
10 fact that Hicks also pointed out that the Ninth Circuit had
11 addressed the issue 20 years before in the Seymour case, which
12 we discussed in our brief. Therefore, it's 20 years before;
13 they didn't have the 20-year legislative history. And the
14 point, the sort of straightforward point was Rule 16 doesn't
15 contain it; the district court isn't authorized to order it;
16 end of inquiry.
17 Then what they said in Hicks was perhaps folks thought
18 because in Seymour where there was sort of "no harm, no foul,"
19 because the defendant, I guess, didn't comply the order; we
20 were just sort of speaking in dictum and it really wasn't
21 essential to our holding. So in Hicks they said, We're now
22 making explicit what folks may have thought we were making
23 implicit in Seymour: that rule 16 doesn't authorize it.
24 Clearly they were buttressed by the intervening history. But
25 it in no way undercut the Ninth Circuit, the controlling
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51
1 authority in Seymour's observation that we look at the rule,
2 if it doesn't have it in there, then the district court isn't
3 authorized to order it.
4 And I think in this case, again echoing Your Honor's
5 observation, in a death case, where the issue is what should
6 the Court do in proceeding cautiously in a death case or
7 capital case to exercise its discretion, whether inherent
8 authority is appropriate -- when we look at the scheme in
9 3593, we see great congressional sensitivity to the disparate
10 position of the parties. In a capital case, particularly with
11 respect to the presentation of mitigating evidence, what the
12 long line of U.S. Supreme Court cases has shown is there
13 should be no burdening the defendant's right to present an
14 unrestricted scope of mitigating evidence --
15 THE COURT: This doesn't burden the defendant's right.
16 This only requires the defendant to give notice of a
17 mitigating factor, not all mitigating factors, just a single
18 mitigating factor.
19 MR. SOWARDS: Right. And then the -- but then what
20 occurs, as observed by the Fourth Amendment, is once the
21 notice is given, that constitutes a waiver of Fifth and Sixth
22 Amendment rights.
23 So in pursuit of the Eighth Amendment right to present
24 mitigating evidence as it relates to mental health evidence,
25 there is a corresponding burden on the Fifth and Sixth
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 Amendment rights; those have to be weighed because the notice
2 is given.
3 And the only thing I'm suggesting to Your Honor is that
4 it may well be that may explain why Congress was troubled or
5 stayed its hand consciously in not ordering that up, with
6 respect to 3593, but that, particularly given the absence of
7 an explicit provision for defense notice, it would be
8 appropriate for the Court to stay its hand with respect to
9 inherent power.
10 THE COURT: I saw nothing in the legislative history
11 indicating that Congress made a conscious decision, and the
12 parties haven't cited anything to me that indicates that.
13 MR. SOWARDS: Okay.
14 THE COURT: So I see no support for the argument that it
15 was a conscious decision by Congress. In fact, the statute
16 that gives the Government right to present rebuttal evidence
17 against the mitigating factors asserted by the defense would
18 indicate that Congress contemplated that the Government would
19 in fact have a meaningful right to rebut certain mitigating
20 factors.
21 In light of other congressional enactments such as
22 Rule 12.2(a) and (b), where Congress saw fit to give notice in
23 that particular -- as to this particular matter, mental status
24 defense type matters, and the fact that the Government has a
25 right to rebut the defense's case on mitigating factors, it
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53
1 seems that there may not be anything expressly approving it,
2 but there's nothing that indicates Congress sought to take
3 away a district judge's inherent authority as to this
4 procedural type of a matter. It seems that Congress was
5 focused, when it enacted the death penalty act, on
6 constitutional concerns, not discovery matters, and that's why
7 I think it required the Government to give notice of the
8 aggravating factors, because it wanted to make certain that a
9 defendant received that type of notice as a matter of due
10 process.
11 But I don't see anything in the statute or anything in
12 the legislative history that evinces a congressional intent to
13 take away the district judge's authority to enact a procedure
14 to effectuate discovery. And that's really all this is. And
15 so I don't see it. Unless you can point it to me, I think I'm
16 going to affirm my tentative.
17 MR. SOWARDS: Well, I appreciate the opportunity, Your
18 Honor, to be heard. Thank you very much.
19 THE COURT: Okay. Well, don't leave, though.
20 MR. SOWARDS: I'm not leaving.
21 THE COURT: Because I am going to affirm the tentative.
22 Let's focus on timing. The Government wants notice
23 immediately. What's your position?
24 MR. SOWARDS: As to the nature and timing, I would
25 assume the nature of the notice would be similar to that that
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 we discussed with respect to 12.2(b). Am I presuming too
2 much?
3 THE COURT: I think you may be.
4 MR. SOWARDS: Perhaps if we could discuss the nature --
5 THE COURT: I have a note. I've thought through this,
6 and I'm going to look at my note.
7 MR. SOWARDS: Thank you.
8 (Pause in the proceeding.)
9 THE COURT: Because of the problem experienced in the
10 guilt phase as to the notice issue, I'm inclined to order that
11 Kaczynski state in the notice whether any of the experts
12 offered during the penalty phase will base their opinions on
13 having examined, tested or otherwise interfaced with
14 Kaczynski. The notice would be in the nature of discovery and
15 thus would be served on the Government and not filed. If
16 Kaczynski serves the notice of his intent to rely on mental
17 status mitigating factors in the sentencing phase, the
18 Government could move for an examination at that time if it
19 deems one is necessary for rebuttal.
20 MR. SOWARDS: Then, Your Honor, if we may have -- within
21 10 days of the Court's order we could provide the Government
22 with that notice.
23 THE COURT: Okay. Let me get the Government's response.
24 MR. SOWARDS: You want me to leave or remain here?
25 THE COURT: I think we're done, unless you have
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1 something else you want to cover.
2 MR. SOWARDS: No, that's fine. I don't think so. Thank
3 you very much.
4 THE COURT: All right.
5 MR. WILSON: Your Honor, 10 days after the Court's order
6 would be fine with us.
7 THE COURT: You just received my order.
8 MR. WILSON: Okay.
9 MR. SOWARDS: Thank you.
10 THE COURT: So it would be 10 days from today's date.
11 MR. DENVIR: Your Honor, I want to make sure I
12 understand. You want a statement of the defense intent to
13 present mental status evidence by way of experts or --
14 THE COURT: This is experts.
15 MR. DENVIR: So it's to call experts regarding mental
16 state as a mitigating factor and to state whether those
17 experts will base their opinions on testing, interviewing or
18 otherwise interfacing with Mr. Kaczynski, and you want it
19 specified as to which experts, if that's true, that will be
20 true?
21 THE COURT: Right. And in light of what you just said,
22 I will issue an order so that it's clear.
23 MR. DENVIR: Thank you, Your Honor.
24 THE COURT: Okay. We're now ready to return to the
25 guilt phase issue. Does the Government want to respond?
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 MR. CLEARY: Thank you, Your Honor.
2 If I could start first with the question of
3 materiality. You put that question to Mr. Sowards, and his
4 response dealt almost exclusively with the diagnosis of
5 schizophrenia.
6 And the real issue, as we see it, Your Honor, is not
7 what the diagnosis is. That's the starting point. But the
8 question of relevance to that defense is, does the mental
9 disease or defect interfere with the defendant's capacity to
10 form intent? If it doesn't, it's not a viable defense and
11 should be inadmissible.
12 So in Mr. -- Dr. Amador's declaration, he likewise never
13 makes the link between the alleged mental disease and the
14 capacity to form intent. And without that link, that evidence
15 is non-material and, we'll argue, inadmissible. And I think
16 in assessing what the materiality is, that's what the Court
17 needs to look at. And from what we know and from what we've
18 heard and from what we've read, the defense has never made
19 that most material connection.
20 Moving backwards to the beginning part of Mr. Sowards'
21 presentation, he said that both sides would have access to the
22 same material and therefore there is no prejudice to the
23 Government. But there is in fact a prejudice to the
24 Government even if we both have the same material, and that's
25 because the Government has the burden of proof on this issue,
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1 and it's a thorny issue. It's not -- it's psychiatric
2 testimony. It's not a science; it's an art. And how that
3 relates to the capacity to form intent is a difficult question
4 that experts are going to have to deal with and explain to a
5 jury. We bear the burden on that. It would be very much in
6 the defense's interest to use the least reliable, least valid
7 forms of proof, because we have to prove intent. We have to
8 prove the defendant had the capacity and, in fact, did form
9 the requisite intent to kill or to injure in this case.
10 So that's where the prejudice is. The prejudice is
11 borne of the notion that the Government has to prove this
12 issue in the case, and therefore we need the most reliable,
13 most valid form of evidence.
14 Mr. Sowards also suggested that there be relative
15 deficits --
16 THE COURT: Before you move on, Mr. Sowards argued --
17 this is not the first time he's made the argument, but he's
18 arguing that the neuropsychological tests are material to
19 Mr. Kaczynski's case and that it's an objective type of a
20 test. And he's indicating that I should revisit Exhibit A and
21 I will find medical support for the argument he made.
22 What is your response to that argument? I understand
23 that you have argued, as a lawyer, that there are a number of
24 things that could have affected the test. But I don't know
25 that. And so what is your response?
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1 MR. CLEARY: My response, Your Honor, is that the tests,
2 although they may be objective, don't cover, in our view, the
3 grounds that you need to make a conclusive, objective
4 diagnosis, and I'll give you an example.
5 Mr. Sowards talks about the consistency, that there's a
6 constellation of consistency, the test scores are consistent;
7 I assume that meant consistent with schizophrenia. Our
8 research reveals, and just the use of the word "consistent"
9 suggests, that it is not dispositive of schizophrenia. It
10 could be consistent and indeed our research reveals is
11 consistent with other mental illnesses or personality
12 disorders, which is kind of a lower form of a defect.
13 And the tests we want to do are designed to probe that
14 very issue, is the relative deficits that Mr. Sowards claims
15 or the disparity in test scores, the fact that the defendant
16 scored average on some scores and very high on others. They
17 would argue, if I understand their argument, that that is
18 consistent with schizophrenia. What we want to be able to
19 show is that it is a -- if this is true, we want to probe that
20 and see if that disparity in test scores is attributable not
21 to schizophrenia but to depression, anxiety and some of the
22 other factors I mentioned to Your Honor.
23 And that's what the essence of our request is. That's
24 why this is important. And what the defense has done is
25 actually suggest that what we're asking to do is a reasonable
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
59
1 request. They told you that they themselves had had two
2 neuropsychologists administer a battery of tests to fine-tune
3 the results they got the first time.
4 THE COURT: Let me ask a question about the record. I
5 want you to pick up on your argument, but I want to know what
6 constitutes the record for purposes of my decision.
7 I asked Mr. Sowards that, in a roundabout way, because I
8 wanted to know whether statements made by Mr. Sowards during
9 the portion of this proceeding where he was explaining a
10 breakdown of the parties' communications where you were trying
11 to negotiate something and I decided that I didn't want to
12 hear a lot about that because it was my impression -- and
13 perhaps I shouldn't have the impression -- it was my
14 impression that were almost inviting me to participate as a
15 settlement type of a judge, and you know that Rule 11 deals
16 with that in another context, and I just assumed that the
17 rationale of that prohibition would extend to this context
18 too. So that's why I backed out of that.
19 But statements that were made when you were
20 communicating on that topic, and Mr. Sowards has indicated
21 that from the defense's perspective I shouldn't use any of
22 those statements for substantive purposes or, I guess, for
23 purposes of my record when I render a decision ultimately in
24 this case on either the guilt phase or the penalty phase
25 issue.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
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1 What's the Government's position on it?
2 MR. CLEARY: Your Honor should not be so constrained.
3 If representations are made in court by either side, you
4 should be allowed -- you are allowed to rely on those
5 representations and issue your rulings, make your rulings
6 based on those representations.
7 THE COURT: So your position is that everything stated
8 during this proceeding constitutes the record, part of the
9 record on which I can base a decision?
10 MR. CLEARY: That's correct, Your Honor.
11 THE COURT: Okay.
12 MR. CLEARY: If I can just move on to one final -- I
13 believe it's just one final point in Mr. Sowards' guilt phase
14 argument.
15 He says that one of the tests we want to take is the
16 MMPI; he says that that is wholly superfluous. I don't know
17 that that's a decision for him to make. That's what our
18 experts tell us they want. They say it is probative; they
19 would like to take the MMPI. And the claim that it's wholly
20 superfluous flies in the face of the defense reliance of a
21 30-year-old MMPI. We should not be required to rely on a
22 30-year-old MMPI when some of the crimes in this case are as
23 recent as a year and a half old. We should be able it to take
24 an MMPI currently.
25 The fact that counsel views the MMPI as superfluous --
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
61
1 well, that's something they could cross-examine our experts on
2 in trial, but their view should not be a factor for the
3 Court. Our experts want to do it. They tell us it's
4 consistent with professional standards applicable to their
5 profession, and we've looked ourselves at some of the research
6 in the area which suggests that the MMPI is quite frequently
7 given in connection with a battery of neuropsychological
8 tests, and indeed the psychological battery that was given,
9 neuropsychological battery in this case, I understand, is a
10 Halstead-Reitan battery. Dr. Reitan himself has said,
11 acknowledged that the MMPI is generally or frequently given
12 with his battery of neuropsychological tests.
13 And that's what we're asking to do here. And we think
14 we are entitled to that rather than having to rely on a --
15 their interpretation of a 30-year-old MMPI that we've never
16 seen.
17 And that's all I have on that, Your Honor. Thank you.
18 MR. SOWARDS: Your Honor, unless the Court had any
19 particular questions raised by Mr. Cleary's comments, I was
20 prepared to submit the matter.
21 THE COURT: Okay. I'm going to deem it submitted, but
22 before you leave I wanted to talk with my reporter for a
23 second.
24 (Discussion off the record between the Court and the
25 court reporter.)
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
62
1 THE COURT: I was communicating with my staff about
2 another matter. It involves the ex parte in camera
3 proceedings. We previously decided that the defense would
4 look at a rough draft of those transcripts concerning the
5 ex parte proceedings and then I would meet with the defense
6 ex parte to get the defense's perspective on whether aspects
7 of the in camera proceedings should be disclosed to the
8 Government and perhaps to the public. And I wanted to know
9 when my court reporter was going to have the rough draft of
10 yesterday's proceeding prepared so that she could give it to
11 defense counsel. And she's indicated that she will be able to
12 give that to defense counsel -- I believe she told me
13 tonight. She's shaking her head in the affirmative, so she
14 did say tonight.
15 THE REPORTER: Yes, Judge.
16 THE COURT: It's a matter I would like to get the
17 Government's and the public's input on before trial starts.
18 And so it is my desire to meet with defense counsel tomorrow,
19 because that would --
20 (Discussion off the record between the clerk and the
21 Court.)
22 THE COURT: -- because that would allow me to get
23 defense counsel's input and should place me in a position to
24 issue an order so that I can get the input of the Government
25 and the public or the media.
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
63
1 Is it feasible to meet with you tomorrow on the topic?
2 And I'm assuming that I need to meet with you because you have
3 an opinion that everything covered was attorney-client
4 communications.
5 MS. CLARKE: (Nods head up and down.)
6 THE COURT: Ms. Clarke is shaking her head in the
7 affirmative. Can we meet sometime tomorrow? Is that
8 feasible?
9 MS. CLARKE: Your Honor -- I sound like a prospective
10 juror with a hardship -- I don't have a nonrefundable ticket,
11 but I have probably a nonrefundable seat on an airplane to go
12 home tonight. And I'm coming back on Sunday. I wonder if the
13 Court would be -- it would be as reasonable to meet on
14 Monday?
15 THE COURT: Are you going to be in a position where you
16 will not be able to use a telephone so we could have a
17 conference call on it? Maybe we could set up a conference
18 call, and I could meet with you telephonically.
19 MS. CLARKE: We could do that, if Mr. Denvir and I would
20 have a chance to speak after we get the transcript so we could
21 have a little bit of time to talk about it ourselves.
22 THE COURT: My chambers can arrange a conference call.
23 We will report it.
24 MS. CLARKE: We do have telephones where I'm going.
25 THE COURT: Okay. Can you give me an approximate time
SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347
64
1 so we can schedule the meeting now?
2 MS. CLARKE: Whatever's good for the Court. Sometime in
3 the afternoon would be fine.
4 THE COURT: Two o'clock?
5 MS. CLARKE: That would be fine.
6 THE COURT: Okay. We'll schedule it for 2:00 o'clock.
7 Please let me deputy clerk know where we can reach you.
8 All right. And thank you.
9 MR. CLEARY: Thank you, Your Honor.
10 (Time noted: 12:56 p.m.)
11
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25
1 REPORTER'S CERTIFICATE
2 -- oOo --
3 STATE OF CALIFORNIA )
4 ) ss.
5 COUNTY OF SACRAMENTO )
6
7 I, SUSAN VAUGHAN, certify that I was the official Court
8 Reporter and that I reported verbatim in shorthand writing the
9 foregoing proceedings; that I thereafter caused my shorthand
10 writing to be reduced to typewriting; and that the pages
11 numbered 1-64 inclusive, constitute a complete, true and
12 correct record of said proceedings:
13 COURT: U.S. District Court
Eastern District of California
14
JUDGE: Honorable GARLAND E. BURRELL, JR.,
15 Judge
16 CAUSE: U.S. vs. Theodore Kaczynski
Case No. Cr. S-96-259 GEB
17
DATE: TUESDAY, DECEMBER 23, 1997
18
19 IN WITNESS WHEREOF, I have subscribed this
20 certificate at Sacramento, California, on the 15th day of
21 January, 1998.
22
23 __________________________________
24 SUSAN VAUGHAN, CSR No. 9673
25
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
3 -- oOo --
4 BEFORE THE HONORABLE GARLAND E. BURRELL, JR., JUDGE
5 -- oOo --
6
7 UNITED STATES OF AMERICA, )
)
8 Plaintiff, )
)
9 vs. ) No. Cr. S-96-259 GEB
)
10 THEODORE JOHN KACZYNSKI, )
)
11 Defendant. )
______________________________)
12
13
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15 REPORTER'S TRANSCRIPT
16 DISCUSSION ON MOTIONS
17 FOR MENTAL EXAMINATION AND SANCTIONS
18 TUESDAY, DECEMBER 23, 1997
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20
21
22
23
24 Reported by: SUSAN VAUGHAN, CSR No. 9673
25
1 A P P E A R A N C E S
2 For Plaintiff UNITED STATES OF AMERICA:
3 OFFICE OF THE U.S. ATTORNEY
650 Capitol Mall
4 Sacramento, CA 95814
BY: ROBERT J. CLEARY
5 STEPHEN P. FRECCERO
R. STEVEN LAPHAM
6 J. DOUGLAS WILSON
Special Attorneys to the
7 United States Attorney General
8 For the Defendant:
9 OFFICE OF THE FEDERAL DEFENDER
801 "K" Street, Suite 1024
10 Sacramento, CA 95814
By: QUIN A. DENVIR
11 Federal Defender, Eastern District of California
JUDY CLARKE
12 Executive Director, Federal Defenders of
Eastern Washington and Idaho
13 JOHN P. BALAZS
Assistant Federal Defender,
14 Eastern District of California
15
STERNBERG, SOWARDS & LAURENCE
16 604 Mission St., 9th floor
San Francisco, CA 94105
17 BY: GARY D. SOWARDS
18
Also Present: TERRY TURCHIE, Assistant Special Agent,
19 F.B.I. Unabom Task Force
ROBERT ROLFSEN, JR., Special Agent, F.B.I.
20
21
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23
24
25
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