Metropolitan News-Enterprise


Monday, August 20, 2001


Page 1


Ninth Circuit Denies En Banc Review of Bid for New Unabomber Trial


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals yesterday, over a vigorous dissent, denied en banc review of a decision denying Theodore Kaczynski a new trial in the “Unabomber” case.

A three-judge panel ruled in February that the former graduate student was not coerced into pleading guilty to three fatal mail bombings.

Judge Stephen Reinhardt dissented at the time—Judge Pamela Ann Rymer and Senior Judge Melvin Brunetti were in the majority—saying the defendant only pled guilty to forestall his lawyers from presenting a defense questioning Kaczynski’s mental capacity.

Judge Alex Kozinski picked up that theme yesterday.

“It may not seem like much we are sacrificing here—and the result may be an all-around pleasing one—but we unfairly diminish Kaczynski by falsely calling him a manipulator, and we diminish ourselves by acquiescing in what we know is not true,” Kozinski wrote.

Kaczynski claimed in his appeal that he felt pressured to plead guilty as a way to avoid being portrayed as mentally ill by defense attorneys Quin Denvir and Judy Clarke.

Mental Condition

Kaczynski claimed that U.S. District Judge Garland Burrell of the Eastern District of California violated his rights by allowing his lawyers to use his mental condition as a defense, over his objections, and denying his request to represent himself.

The Justice Department initially sought a death sentence but accepted the life term as a condition of a negotiated plea after a court-ordered psychiatric examination, conducted over the defendant’s objections, concluded he was a paranoid schizophrenic.

Kaczynski pled guilty to indictments covering the mailing or placement of 16 bombs in California and New Jersey. Before doing so, however, he clashed openly with his attorneys as to whether, and what, evidence of his mental state would be offered in his defense.

Quin Denvir and Judy Clarke had given notice of intent to present an insanity defense prior to jury selection, which began in mid-November 1997 and lasted six weeks. But on Jan. 5, 1998, when oral arguments were to begin, Kaczynski protested their plan in open court.

Following an in-camera discussion among Burrell, Kaczynski, and the defense lawyers, a compromise was reached: No expert testimony about the defendant’s mental health would be presented in the guilt phase, but Clarke and Denvir would be otherwise free to present testimony from witnesses they deemed appropriate, including the calling of experts, in the penalty phase.

Non-Expert Witnesses

Before the trial resumed, however, Kaczynski objected to his lawyers’ plans to call non-expert witnesses to testify about his mental state. Denvir and Clarke explained that they intended to show through observations of Kaczynski by others, and through the defendant’s writings, that his mental condition had deteriorated during the 25 years he had lived as a near-recluse in Montana.

After a few days’ delay, Clarke reported that Kaczynski had decided that he could not “endure” a mental status defense and wanted to represent himself. At that point, the lawyers for both sides raised the question of competency, and the trial was further delayed for a psychiatric exam resulting in a determination that the defendant was able to stand trial.

Burrell then denied Kaczynski’s request for self-representation, finding that it was untimely and made for purposes of delay. Although Kaczynski did not request a continuance, the judge found that it was “impossible to conceive” that he would be able to take over his defense without a delay in the proceedings.

Since Kaczynski had earlier agreed to permit a mental-state defense to be presented in the penalty phase, Burrell added, his request for self-representation wasn’t being made in good faith.

Denvir then announced that Kaczynski would plead guilty to all counts of the indictments if the government would drop its request for the death penalty. A written plea agreement was drawn up and signed by Kaczynski, who reaffirmed the agreement in open court and was sentenced to four consecutive life terms plus 30 years in prison and ordered to pay more than $15 million in restitution.

He subsequently moved to vacate the conviction, which Burrell denied.

Rymer, writing for the panel, said the guilty plea was voluntary as a matter of law.

“While Kaczynski does contend that his attorneys deceived him about their intentions to present a mental status defense, he knew what they planned to do before deciding to plead guilty, and he does not claim that he was persuaded to plead guilty by threats or misrepresentations of his attorneys, the government, or the court,” Rymer wrote.

Kozinski emphatically disagreed, saying the defense lawyers and the district judge, while well-meaning, had robbed Kaczynski of his right of self-representation, bringing “the integrity of the judicial process” into question.

Kozinski wrote:

“The opinion affirms the finding that Kaczynski made his Faretta motion for purposes of delay, even though he said he was asking for no delay. Is this 1984, or what? If a defendant tells the court he is willing to go to trial right then and there, how can the district court possibly find the opposite? After all, the district judge need not delay; he can take defendant at his word and go forward with the trial. Defendant’s secret intentions and reservations—whatever they be—are of no consequence. If the district judge doubts the defendant’s sanity for making that choice, he can order a competency hearing, as he did here. But having found Kaczynski competent, how can the district judge penalize him for delay that he does not seek?”

The case is United States v. Kaczynski, 99-16531.


Copyright 2001, Metropolitan News Company