3542

1     SACRAMENTO, CALIFORNIA

2 MONDAY, JANUARY 5, 1998, 8:02 A.M.

3  -- oOo --

4THE DEFENDANT:  Your Honor, before these proceedings

5   begin, I would like to revisit the issue of my relations with

6   my attorneys.  It's very important.  I haven't stood up

7   because I am under orders from the marshals not to stand up.

8(Pause in the proceeding.)

9THE COURT:  I want to talk to the marshal.

10(Discussion off the record between the Court and a

11   marshal.)

12THE COURT:  Since my courtroom is full of people, my

13   inclination is to invite the defense side to my chambers with

14   the reporter.

15Government?

16MR. CLEARY:  Can I have one minute, Your Honor?

17THE COURT:  Yes.

18(Discussion off the record among the Government's

19   counsel.)

20MR. CLEARY:  No objection, Your Honor.

21(An ex parte and in camera discussion, consisting of

22   pages 3543-3602, was held and reported under seal by order of

23   the Court.)

24

25



SUSAN VAUGHAN, CSR No. 9673 -- (916) 446-1347  3603

1  SACRAMENTO, CALIFORNIA

2  MONDAY, JANUARY 5, 1997

3-- oOo --

4  (Open court.)

5  THE CLERK:  Court is now in session.

6  Criminal S-96-259, United States versus

7     Theodore Kaczynski.

8  THE COURT:  Please state your appearances for

9     the record.

10  MR. CLEARY:  Robert Cleary, Steven Lapham and

11     Stephen Freccero for the government.

12  MR. DENVIR:   Quin Denvir, Judy Clarke and

13     Gary Sowards for Mr. Kaczynski, Your Honor.

14  THE COURT:  Thank you.  As you know, the trial

15     in this matter was scheduled to commence this

16     morning at 8:00 a.m.  But in lieu of the trial

17     commencing, I conducted proceedings ex parte and in

18     camera, which have not been completed.  We hope that

19     those proceedings will be completed or resolved by

20     Wednesday morning.

21  There's a possibility that the proceedings

22     will not be resolved by Wednesday morning and that

23     the Court would have to conduct other types of

24     proceedings.  So I thought I should take the bench

25     and explain the status of the matter and get input





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3604

1     from the government.

2  But let me say something before the government

3     provides input.  I realize the government is

4     prepared to go forth with witnesses, and you have

5     made arrangements.  We could proceed as though the

6     trial is to commence on Wednesday with the

7     understanding that there's a possibility that it

8     won't commence on Wednesday.  Or we could proceed

9     with the understanding that it will commence on

10     Thursday.

11  If we proceed in that vein, the trial should

12     commence on Thursday.  Otherwise, we will be

13     involved in other types of procedures.

14  Have I said anything that causes the defense

15     to want to respond before I get the Government's

16     input?

17  MR. DENVIR:  No, Your Honor.

18  MR. CLEARY:  Your Honor wants input from the

19     government as to whether we would prefer to schedule

20     for Wednesday or if we would rather schedule for

21     Thursday, is that the question?

22  THE COURT:  That is the question.  I think

23     that the government perhaps understands the problem.

24  MR. CLEARY:  We do, Your Honor.

25  THE COURT:  All right.





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3605

1  MR. CLEARY:  If I can have one minute to

2     consult with some people in the courtroom?

3  THE COURT:  That would be fine.

4  (Informal recess.)

5  MR. CLEARY:  Thank you, Your Honor.  From the

6     Government's perspective, given that we have flown

7     witnesses here from the East Coast, it creates some

8     scheduling difficulties for us, as I think you can

9     appreciate.

10  If I could suggest this.  The government would

11     be prepared to proceed on either Wednesday or

12     Thursday, at the Court's convenience, with the

13     understanding that for the convenience of witnesses

14     who traveled a great distance, that after a handful

15     of witnesses, probably seven or eight or nine

16     witnesses, somewhere in there, we might not be able

17     to pick up again until the following Monday, until a

18     week from today.

19  Would that be acceptable to the Court?

20  THE COURT:  How about the defense?

21  MR. DENVIR:   That's certainly acceptable,

22     Your Honor.

23  THE COURT:  Should I have my staff communicate

24     with the jurors to ascertain whether the jurors are

25     available for a longer trial day?  If the jurors are





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3606

1     available for a longer trial day, then we can extend

2     the trial day.

3  I recognize that during voir dire I promised

4     the jurors that they would only be in trial until

5     1:00 o'clock daily.  However, since they won't be in

6     trial for a couple of days, maybe there won't be any

7     objection to a longer trial day, at least for

8     Wednesday and Thursday, or if it turned out to be

9     Thursday, then Thursday and Friday.

10  Is that a viable option?

11  MR. CLEARY:  That would be fine with the

12     government, Judge.  We'll do, obviously, whatever

13     you want on that.  My only concerns about that are

14     twofold.

15  One, during the voir dire, we did ask a number

16     of jurors about job problems that they may have.

17     I'm not sure if those jurors are now in the pool,

18     but there were some who were planning on going to

19     work.  So we want to find that out, number one.

20  In my own view, for whatever it's worth, I

21     think it would be good to give the jurors a very,

22     very set schedule.  Try to start them at 8:00

23     o'clock each day and finish at 1:00 o'clock.  I'm

24     concerned a little bit if we start telling them that

25     for a few days we'll be going a little later.  They





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3607

1     may get the wrong message of what's going on here.

2  But that's our concern.  Whatever the Court

3     wants to do is fine.

4  THE COURT:  Well, it wasn't a question as to

5     what I wanted to do.  I was only suggesting an

6     alternative.  But if you are not in favor of that

7     alternative, I won't pursue it, because it is clear

8     that I did make a promise to the jurors that we

9     would be out of here by 1:00 o'clock daily.  If that

10     indicates to you that perhaps I shouldn't approach

11     the jurors, I won't.

12  MR. CLEARY:  I think it would be best not to

13     approach them, Your Honor.

14  THE COURT:  Okay.  Anything further to cover

15     then?

16  MR. CLEARY:  Just one request.  From the

17     Government's perspective, Your Honor, we seem to be

18     in the same position or an analogous position to

19     where we were a week or so ago with ex parte

20     conferences going on.  I would ask the Court again

21     to keep our request in mind as you decide what

22     portions if any of the ex parte conference

23     transcripts to disclose to the government.

24  To emphasize, as we said before, our interest

25     is not in getting or obtaining any attorney-client





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3608

1     communications or seeing any sort of strategy

2     sessions that went on in chambers.  But we do have a

3     very real and a very serious interest in protecting

4     the record in this case for appeal, and also to

5     discharge our obligation to advise the Court as to

6     what steps the Court should take, which may include

7     advice from the Government that the Court needs to

8     question the defendant personally, and we may be

9     able to suggest some questions that you should pose

10     to the defendant or his counsel.

11  I only state that so the Court will keep that

12     in mind as you decide which portion if any to

13     disclose to us.

14  Thank you.

15  THE COURT:  I am aware of the Government's

16     interest, and I understand it.  But should the

17     Government have questions it believes the Court

18     should present to the defendant, I think you should

19     present those questions to me.

20  MR. CLEARY:  We will, Your Honor.  I think it

21     preferable to do it in writing, is that correct?

22  THE COURT:  Right.

23  MR. CLEARY:  In order to guide what our

24     suggestions are -- and I don't want to tread where

25     I'm not wanted, but can I ask a couple of questions





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3609

1     about what has happened in chambers over the last

2     few hours?

3  THE COURT:  Did you just ask a question?

4  MR. CLEARY:  Well, was it about the scope of

5     the defendant's concern with the representation by

6     his counsel?

7  THE COURT:  I am going to let the defense

8     respond to your questions.

9  MR. DENVIR:  Your Honor, we don't think it

10     would be inappropriate for the Court to answer those

11     questions or for us to go any further than we

12     already have.

13  If the government feels that they have

14     questions that would be helpful to the Court, they

15     certainly can look at the record up to now and the

16     record today and frame any questions and submit them

17     to the Court.  But we feel what was discussed,

18     attorney-client matters, the Court has previously

19     treated ex parte and confidential and should stay

20     that way.

21  MR. CLEARY:  It does make it a little

22     difficult to advise the Court.  Let me ask this.  Is

23     the discussion that happened today consistent with

24     what the Court has previously disclosed vis-a-vis

25     the prior ex parte conferences?





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3610

1  MR. DENVIR:   We would answer that, Your

2     Honor.  It is consistent with the previous

3     proceedings, we believe.

4  MR. CLEARY:  That may give us a basis to

5     provide some additional guidance to the Court, and

6     we'll try to do that as soon as possible.

7  THE COURT:  Based upon everything that has

8     been stated, it is my impression that the Government

9     desires the Court to have the jury here for the

10     commencement of trial at 8:00 a.m. on Wednesday.

11  MR. CLEARY:  If I may have one minute, Your

12     Honor?

13  THE COURT:  Yes.

14  MR. CLEARY:  Your Honor, that is our request.

15     However, just so the Court knows, for planning

16     purposes, it's going to be the Government's request

17     that this issue that has been discussed ex parte get

18     firmly and finally resolved before this jury gets

19     sworn.

20  Understanding that, and if the Court agrees

21     with the Government's view, maybe it would be better

22     to put it over until Thursday to give the Court and

23     counsel and the Government a chance to resolve this

24     with finality, if that's possible.

25  THE COURT:  Defendant's response.





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3611

1  MR. DENVIR:  We would agree with that, Your

2     Honor.

3  THE COURT:  As I understand the Government's

4     position, the Government is asking that I wait until

5     Thursday to bring the jury into the courtroom, and

6     that on or before Wednesday, some type of assurance

7     be provided to the Government that allows the

8     Government to know that whatever issues have been

9     resolved in the ex parte in camera communications

10     are firmly and finally resolved.

11  MR. CLEARY:  That's correct, for both phases

12     of the trial, Your Honor.

13  THE COURT:  Any response by the defense?

14  MR. DENVIR:  No.

15  THE COURT:  I will do the best I can.  A

16     criminal proceeding sometimes involves dynamics that

17     a judge has to respond to.  You do your best to make

18     a decision that you think is right in the moment

19     given the circumstances, and you hope that is a

20     correct decision.

21  So I am a little concerned about your choice

22     of words, but I understand your position about

23     firmly and finally resolving something.  But I will

24     do my best to apprise the government and the public,

25     to the extent I believe I can do so, of what the





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3612

1     issues are, and then try to get the Government's

2     input as to whether the Government is satisfied as

3     to the resolution of those positions.

4  I think that's about all we should cover.  If

5     there's nothing further to cover, I'm going to

6     adjourn.

7  MS. CLARKE:  Thank you, Your Honor.

8  MR. DENVIR:   Thank you, Your Honor.

9  MR. CLEARY:  If I could ask.  There is a bunch

10     of legal issues that still need to be resolved.  Do

11     you want to resolve those now or wait until sometime

12     prior to Thursday to resolve them?  They have to do

13     with various statements.  We discussed this with the

14     Court last week.

15  THE COURT:  I am aware of the legal issues.

16     Let me get the defense's input.

17  MR. DENVIR:   I think that given the nature of

18     the problems, we ought to wait on that to see where

19     we are.  Meanwhile, I do intend to talk to the

20     Government about the statements question.  We may

21     have a solution to part of that.

22  THE COURT:  You heard what Mr. Denvir said.

23  MR. CLEARY:  I did, Your Honor.

24  THE COURT:  What is your response?

25  MR. CLEARY:  Well, I can only tell you that





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3613

1     the Government was prepared last week to argue this,

2     we are prepared today to argue it.  I can't really

3     respond very well given that there was a reference

4     to what's happened ex parte, so I really don't know

5     how the respond.  We leave it up to you, Your Honor.

6  THE COURT:  I am prepared to decide, but I'm

7     going to wait and get input from the parties before

8     I render a decision.  And in view of what the

9     defense just stated, I think we'll wait until

10     Thursday morning.  I am willing to come in earlier,

11     though.  Maybe we should consider that.

12  Let me talk to the marshal.

13  (Short discussion off the record.)

14  MR. CLEARY:  May I make a suggestion, Your

15     Honor?

16  THE COURT:  Yes.

17  MR. CLEARY:  Since these issues relate in most

18     instances to what the Government's going to be able

19     to open on and what the defense is going to be able

20     to open on, if it's at all possible with your

21     schedule, could we come in and have the argument on

22     Wednesday so we will have at least overnight to

23     change our prospective openings if the Court rules

24     in a way that will require us to change our opening,

25     rather than doing it first thing in the morning and





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347  3614

1     have to get right up and start opening to the jury?

2  THE COURT:  Let me get the defense's input on

3     that.

4  MR. DENVIR:  Your Honor, if the Court wants to

5     hear it late on Wednesday, we can do it Wednesday

6     afternoon.  We can see where we are at that point.

7  THE COURT:  Is 1:00 o'clock late enough?

8  MR. CLEARY:  Fine for the Government.

9  MR. DENVIR:   We were thinking more about 4:00

10     o'clock to be sure we have all these matters

11     resolved.  I don't think it's going to be a lengthy

12     argument.

13  THE COURT:  4:00 o'clock.

14  MR. CLEARY:  Fine with the Government, Your

15     Honor.

16  THE COURT:  Okay.  4:00 o'clock Wednesday.

17  MR. DENVIR:   Thank you, Your Honor.

18  MR. CLEARY:  Thank you, Your Honor.

19  ---oOo---

20

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22

23

24

25





DENNIS F. McKINNON, CSR No. 2223  -- (916) 446-1347 




1 IN THE UNITED STATES DISTRICT COURT

2FOR THE EASTERN DISTRICT OF CALIFORNIA

3 -- oOo --

4BEFORE 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

14

15    -- oOo --

16    REPORTERS' DAILY TRANSCRIPT

17  JURY TRIAL

18    VOLUME 22, pp. 3542-3614

19     MONDAY, JANUARY 5, 1998

20    -- oOo --

21

22   Reported by:   SUSAN VAUGHAN, CSR No. 9673

23KELLY O'HALLORAN, CSR No. 6660

24DENNIS McKINNON, CSR No. 2223




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 4650 Capitol Mall Sacramento, CA  95814 5BY:  ROBERT J. CLEARY STEPHEN P. FRECCERO 6     R. STEVEN LAPHAM Special Attorneys to the 7 United States Attorney General

8   For the Defendant:

9OFFICE OF THE FEDERAL DEFENDER 801 "K" Street, Suite 1024 10Sacramento, CA  95814 By:   QUIN A. DENVIR 11Federal Defender, Eastern District of California JUDY CLARKE 12Executive Director, Federal Defenders of Eastern Washington and Idaho 13 STERNBERG, SOWARDS & LAURENCE 14604 Mission St., 9th floor San Francisco, CA  94105 15BY:  GARY D. SOWARDS

16 Also Present:  TERRY TURCHIE, Assistant Special Agent, 17F.B.I. Unabom Task Force ROBERT ROLFSEN, JR., Special Agent, F.B.I. 18

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