1 1 SACRAMENTO, CALIFORNIA 2 WEDNESDAY, JANUARY 7, 1998, 1:30 P.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. CLYMO: Your Honor, Kevin Clymo present in my 9 limited capacity representing Mr. Kaczynski. 10 THE COURT: Thank you. 11 MS. CLARKE: Judy Clarke, Quin Denvir, and Gary Sowards 12 on behalf of Mr. Kaczynski. 13 THE COURT: Thank you. What's the status of the 14 matter? 15 MR. CLYMO: Your Honor, where we are, as I understand 16 it, is the issue with regard to the letter that was filed with 17 the Court on Monday indicating that Mr. Kaczynski wished to 18 arrange, if possible, that Mr. Serra represent him I believe 19 is withdrawn at this point. 20 Is that correct? 21 THE DEFENDANT: Yes, your Honor. (Redaction for 22 attorney-client privilege and representation matters.) 23 MR. CLYMO: With regard to the issue the Court asked me 24 to deal with, I've spent quite a bit of time talking with 25 Mr. Kaczynski. I've spent quite a bit of time talking with KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 2 1 counsel, and there are polarized points of view regarding 2 control of the presentation of the defense. And I've done the 3 best I can to advise Mr. Kaczynski mutually of the law and 4 what his options are. And it's my understanding that 5 Mr. Kaczynski at this point, in recognition that he has 6 limited options legally, wishes to go forward with the trial. 7 And I don't believe there is a -- well, wishes to go forward 8 with the trial. 9 However, he feels that he needs help almost, in essence, 10 in maybe arguing his point of view or presenting his point of 11 view or having someone to only be concerned about expressing 12 his point of view with his lawyers, and he has asked me to ask 13 the Court that, among all the alternatives, the one he wants 14 is to go forward with the trial with counsel intact, and he's 15 asked me to ask the Court if you would allow me to remain, in 16 essence, as his perhaps personal counsel so that he feels 17 comfortable that his position, personal position, is advocated 18 within the context of the limits that the law places on a 19 client and the amount of control the client can have with the 20 presentation of the defense. 21 So I think that's where we are. So he would like to go 22 forward with Mr. Denvir and Ms. Clarke and Mr. Sowards and 23 pick up where this left off on Monday, but to allow me to 24 continue to speak for him, in essence, without having to, you 25 know, be legally responsible for his representation in court KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 3 1 and without -- because of my limited role right now, I don't 2 have to really, you know, be responsible for the ultimate 3 tactics of the case and what's best for the tactics of the 4 case, and I can be pure to Mr. Kaczynski's need for 5 clarification of sometimes legal limits and issues and 6 sometimes to perhaps argue with his lawyers his personal 7 position and how he wants things done, quite frankly. 8 So that's where we are. 9 THE COURT: I'm not sure I'm inclined to do that. A 10 criminal defendant is entitled to appointment of counsel, and 11 a capital criminal defendant is entitled to the appointment of 12 two counsel, which I've done. I've appointed two lawyers. 13 I only brought in Mr. Clymo for the limited purpose of 14 representing you, should you need representation, on what I've 15 characterized as a potential conflict issue. 16 There are a number of things I was required to cover and 17 still am, if I have to, concerning the representation issue 18 that interrupted the trial. I'm not in favor of keeping a 19 lawyer that I only appointed to deal with specific conflicts 20 that I thought could arise definitely in the case. 21 I've got options. At this point I probably need to hear 22 from your trial counsel, but I'm going to tell you my 23 options. 24 One option is something I have to do. If the conflict 25 is not resolved, we've got to cover it. I have to know what KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 4 1 it is and whether it is the type of a conflict that could 2 reasonably be characterized as one capable of interfering with 3 the attorney-client relationship in such a way that it causes 4 a breakdown in communications. 5 Some conflicts, in my opinion, will arise no matter what 6 lawyer you bring into the case. And that's why a judge really 7 has to evaluate the conflict, because if the conflict is one 8 that a criminal defendant is likely to have with any lawyer 9 appointed in the case, it makes no sense to appoint another 10 lawyer. 11 A criminal defendant at that point in time would have to 12 choose between representing him or herself or going with 13 existing counsel. 14 We need to cover the issue -- well, does the issue 15 continue to present a problem that interrupted my trial on 16 Monday? 17 THE DEFENDANT: Is that a question you want me to 18 answer, your Honor? 19 THE COURT: Let me respond to you this way, 20 Mr. Kaczynski. Since I have appointed at this moment three 21 lawyers to assist you, I will allow you the option of allowing 22 one of the lawyers to respond, if you prefer, or you can 23 personally respond. It is up to you, sir. 24 THE DEFENDANT: Your Honor, I'd let Mr. Clymo respond 25 for me. KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 5 1 MR. CLYMO: The issue that presented itself Monday to 2 the Court and the issue -- this very, very narrow, specific 3 issue that I was asked to address and that was contained in 4 the multi-page letter and the single page handwritten document 5 that the Court provided me, I believe that conflict has been 6 resolved, if it ever was a conflict. I don't know that it 7 ever was really a legal conflict. But if it was, I believe 8 it's resolved. 9 (Redaction for attorney-client privilege and 10 representation matters.) 11 THE DEFENDANT: Your Honor, it appears that I don't have 12 much choice as to what I want to do. Mr. Clymo has agreed 13 with you that other counsel would probably do the same thing 14 as my present counsel and, consequently, it seems that I have 15 no other alternatives, and so far I may as well go ahead with 16 the present counsel, not because I want to but simply there 17 are no better alternatives. 18 THE COURT: You don't want to represent yourself? 19 That's an alternative. I don't advise it, but if you want to, 20 I've got to give you certain rights. 21 THE DEFENDANT: Your Honor, if this had happened a year 22 and a half ago, I would probably have elected to represent 23 myself. Now, after a year and a half with this, I'm too 24 tired, and I really don't want to take on such a difficult 25 task. So far I don't feel I'm up to taking that challenge at KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 6 1 the moment, so I'm not going to elect to represent myself. 2 THE COURT: I'm going to make some findings for the 3 record, unless counsel have other things to cover. 4 MR. DENVIR: No, your Honor. 5 THE COURT: Okay. Generally, a criminal defendant's 6 communications during a court proceeding are expressed through 7 counsel. This past Monday, Mr. Kaczynski directly 8 communicated with me asking me to revisit a very important 9 attorney relationship matter. I'm going to say something 10 before I make a finding. (Redaction for attorney-client 11 privilege and representation matters.) 12 THE COURT: I'm going to say something else. You need 13 not respond, Mr. Kaczynski. I'm just going to make a 14 statement to you. The government does not agree with my 15 ruling on who controls the defense. I'm just telling you 16 that. I do not agree with the government. I think my ruling 17 is correct. 18 At the time Mr. Kaczynski interrupted the commencement 19 of the trial, I intuitively thought I knew the essence of his 20 concern based on my memory of what occurred when we met ex 21 parte and in camera on December 22, plus I had in mind the 22 government's motion to exclude a mental state defense based on 23 what it expects Kaczynski's counsel to state during opening 24 statement. 25 Based on all that, I recall determining whether the KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 7 1 government had an objection to the meeting in camera, and I 2 immediately adjourned and met with Mr. Kaczynski in camera. 3 By doing so, the trial was adversely affected. Jurors were 4 left waiting in the jury deliberation room until I released 5 them about three and a half hours later. Witnesses and the 6 public were doing the same thing in the courtroom. 7 Because of my suspicions that we needed to devise a 8 vehicle to reach the heart of the attorney representation 9 problem and to do that quickly so the trial could commence 10 this week, I received the approval of trial counsel for 11 Mr. Kaczynski to contact what I would characterize as a 12 conflicts attorney, and I contacted Mr. Clymo to personally 13 assist Mr. Kaczynski as a conflicts attorney. And I did this 14 because I saw the possible need for his assistance under the 15 rationale of Ninth Circuit decisions in Mason, 5 F.3d 1220, 16 and Gonzalez, 113 F.2d. Actually, I think that should be F.3d 17 1026. 18 Mr. Clymo's function as a conflicts attorney was to 19 assist Mr. Kaczynski to possibly work through any difficulties 20 interfering with the attorney-client relationship, and, if 21 necessary, to express Mr. Kaczynski's position on any issues 22 Mr. Kaczynski desired him to assist with during any 23 proceeding. 24 I thought this advisable because, frankly, I am 25 confident in Mr. Kaczynski's abilities, (Redaction for KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 8 1 attorney-client privilege and representation matters.) and I 2 felt that he needed to have a lawyer that represented his 3 position solely. Not to say that his trial counsel are not 4 assigned to that task, but I wasn't positive that we were 5 going to reach a point where there would be -- whether or not 6 we would reach a point where there would be a conflict in 7 positions. 8 Now, I know that Mr. Kaczynski perhaps did not need the 9 help. I find him to be lucid, calm. He presents himself in 10 an intelligent manner. In my opinion, he has a keen 11 understanding of the issues. He has always seemed focused on 12 the issues in his contact with me. His mannerisms and his eye 13 contact have been appropriate. I know there's a conflict in 14 the medical evidence as to whether his conduct, at least in 15 the past, has been controlled by any or some mental ailment, 16 but I've seen nothing during my contact with him that appears 17 to be a manifestation of any such ailment. If anything is 18 present, I cannot detect it. 19 I appointed Mr. Clymo before I completed my examination 20 of the extent of the attorney-client problem. Before 21 Mr. Clymo's arrival, I dealt with the possible substitution 22 question that was presented. Frankly, I was forced to deal 23 with that question. Once I found out that Mr. Serra was 24 willing to do work at pro bono, that basically placed him in 25 the category of a retained counsel, and it caused the Court to KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 9 1 have to consider other law in making a decision as to what to 2 do. 3 The record should reflect that I decided to conduct a 4 further investigation of the matter involving Mr. Serra 5 through my secretary yesterday. I had my secretary call 6 Mr. Serra's office to see if the office was at liberty to 7 provide content to the word "conflict" which dissuaded that 8 lawyer from being willing to represent Mr. Kaczynski. I 9 decided to do this to see if there was any merit to what 10 Mr. Kaczynski told me. 11 The law firm responded with two communications. One 12 they don't want me to share on the record because they 13 withdrew it and basically informed me that it was an 14 unauthorized communication. And the other communication was a 15 statement stating, "Tell them," the federal defenders, "that 16 he would keep in confidence the nature of the conflict." 17 I only share this information for purposes of the 18 record. It is clear to me beyond doubt, although 19 Mr. Kaczynski has expressed some communication concerns that 20 he believes he's experienced with his lawyers, I am firmly 21 convinced that his lawyers care about him and have his best 22 interests at heart, and they are doing an exceptional job in 23 his defense. 24 Mr. Clymo, one reason I called you to serve as a 25 conflicts lawyer was because you did a fine job before me in a KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 10 1 complex criminal trial. I know you've had experience in 2 handling capital cases, and I sensed that you would readily 3 develop rapport with Mr. Kaczynski. And I care about 4 Mr. Kaczynski, and I wanted him to speak to someone who could 5 develop rapport with him. 6 Also, I thought you'd be willing to assist our justice 7 system, as you did. I'm mindful that you were even willing to 8 do that on a pro bono basis, if necessary, and I find that 9 gesture commendable. I really appreciate your assistance in 10 this matter. 11 I think Mr. Kaczynski is rather fortunate to have the 12 counsel he has. His trial counsel, in my opinion, are 13 nationally renowned criminal defense lawyers. One of them is 14 the appointed Federal Defender in this district by the Ninth 15 Circuit. 16 I'm going to ask some questions after I finish making 17 some statements, but I do hope that the attorney-client 18 relationship is much better than it was on Monday, and I will 19 probe that question with you. 20 Under law, while ideally a relationship of trust and 21 confidence should exist between the accused and his attorney, 22 the Sixth Amendment, and the Supreme Court has noted, 23 guarantees only competent representation, not a meaningful 24 attorney-client relationship. 25 You do have competent representation, and I do hope that KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 11 1 the attorney-client relationship is one that will not 2 interfere with your defense. 3 I'm now going to scan some questions that the government 4 asked me to cover and see if I think it's appropriate to cover 5 it. They have filed a document asking me to cover certain 6 questions during this proceeding. 7 What's the defense's perspective, trial counsel's 8 perspective, on this question? 9 MR. DENVIR: I guess we'll have to look at them again, 10 your Honor. We're just providing a copy to Mr. Clymo. Your 11 courtroom deputy gave us a copy when we came to court. We had 12 not seen it previously. 13 THE COURT: Do you want me to give you my copy? 14 MR. DENVIR: I imagine it will just take a second for 15 him to look at it. 16 THE COURT: Okay. I'm probably inclined to ask some of 17 those questions, because I assume you're going to ask that I 18 keep closed aspects of this proceeding. 19 Is that true? 20 MR. DENVIR: Yes, your Honor. 21 THE COURT: Then I should ask the questions the 22 government wants me to ask. 23 MR. DENVIR: I think the questions directed to 24 Mr. Kaczynski are -- can we just look at it for one moment? 25 We have no problems, your Honor, with the questions that KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 12 1 are proposed to Mr. Kaczynski. I guess we'd have to look at 2 the questions that they think should be directed to defense 3 counsel. 4 I'm not sure whether those are necessary or 5 appropriate. Maybe you want to first deal with Mr. Kaczynski. 6 THE COURT: I had my secretary type out the questions. 7 Can you tell me where they are in context? Page 7, right? 8 MR. DENVIR: Yes, your Honor. There's four questions 9 that they suggest to Mr. Kaczynski. 10 THE COURT: I'm going to ask those questions. 11 Mr. Kaczynski, are you satisfied with your current 12 counsel? 13 THE DEFENDANT: I think it should be clear by now, your 14 Honor, that I'm not satisfied with my current counsel for the 15 reasons that I have already explained, but that I am willing 16 to accept representation by them for want of a better 17 alternative. 18 (Redaction for attorney-client privilege and 19 representation matters.) 20 THE COURT: Have you reached agreement with counsel 21 concerning major strategic decisions? 22 THE DEFENDANT: Your Honor, as you know, I do not agree 23 with counsel concerning major strategic decisions, but I've 24 become aware that legally I have to accept those decisions 25 whether I like them or not. So I guess I just have to accept KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 13 1 them. 2 THE COURT: We were both using "decisions" in its plural 3 form, but is it not true that your problem is with the 4 assertion of the mental status defense? 5 THE DEFENDANT: Yes, your Honor, that's the problem. 6 THE COURT: You don't have problems in other areas, do 7 you? 8 THE DEFENDANT: No, your Honor. That's the only one. 9 THE COURT: All right. Are you willing to defer -- 10 MR. DENVIR: Your Honor, could we just have one moment? 11 THE COURT: Sure. 12 (Redaction for attorney-client privilege and 13 representation matters.) 14 THE COURT: Okay. Are you willing to defer to counsel's 15 day-to-day trial decisions? 16 THE DEFENDANT: Yes, your Honor. 17 THE COURT: Have you looked at the questions the 18 government has asked me to ask defense counsel? 19 MR. CLYMO: Are you asking Mr. Kaczynski that, your 20 Honor? 21 THE COURT: No. I'm asking his trial counsel that. 22 MR. DENVIR: Your Honor, I believe that our position is 23 that given the Court's findings and ruling on who would 24 present the defense and given Mr. Kaczynski's answers to the 25 questions, we don't feel that these questions are appropriate KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 14 1 to counsel. And I don't think they add anything to what has 2 already been developed by the Court and Mr. Kaczynski. 3 THE COURT: Is there anything further to cover? 4 THE DEFENDANT: From my point of view, no, your Honor. 5 MR. DENVIR: No, your Honor. 6 THE COURT: Thank you for your assistance, Mr. Clymo. 7 MR. CLYMO: You're welcome, your Honor. 8 THE COURT: It's adjourned. 9 MR. DENVIR: Your Honor, does the Court anticipate -- I 10 assume that you will want to make some public statement about 11 the outcome of these proceedings. Would you plan on doing 12 that at the 4:00 o'clock session that's already scheduled? 13 THE COURT: What would you like me to say? Are you 14 concerned about that? 15 MR. DENVIR: Well, it would only be that Mr. Kaczynski 16 is going forward with present counsel and we'll be in trial 17 tomorrow. I think people are kind of wondering what's 18 happening. I didn't -- 19 THE COURT: I'll say that. 20 MR. DENVIR: But we would handle that at 4:00 o'clock? 21 THE COURT: Right. 22 MS. CLARKE: And, your Honor, it would be 23 Mr. Kaczynski's request that he not be present at the 4:00 24 o'clock hearing, that he get back to the jail. He would like 25 to have an opportunity to get some rest before he returns to KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 15 1 court tomorrow. 2 THE COURT: Before you leave, Mr. Clymo -- 3 MR. CLYMO: Yes, your Honor. 4 THE COURT: My deputy clerk just told me that my 5 secretary sent her an e-mail in which she explains that Tony 6 Serra sent a fax to be given to Mr. Clymo telling Mr. Clymo to 7 tell Mr. Kaczynski that he is now willing to represent 8 Mr. Kaczynski. 9 MR. DENVIR: Now, n-o-w? 10 THE COURT: Right. I just want to make sure that 11 doesn't change anything. 12 MR. CLYMO: Can I have a moment? 13 THE COURT: Sure. 14 MR. CLYMO: Your Honor, Mr. Kaczynski has indicated that 15 he would like to talk to Mr. Serra, whatever that means. I 16 mean it in the sense of he would like, I think, an opportunity 17 to have a conversation with Mr. Serra to explore what you've 18 just indicated. 19 Is it signed by him, your Honor? 20 THE COURT: I'm going to give this to you in a moment. 21 If you don't mind, I'm going to read it first. 22 This doesn't read as I represented. This seems to be a 23 conditional offer. I will give this to my deputy clerk. 24 MR. CLYMO: Did the Court wish me to look at it and 25 share that with Mr. Kaczynski? KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 16 1 THE COURT: Yes. I've got time to cover this matter. 2 MR. CLYMO: Your Honor, Mr. Denvir, all of us, have 3 looked at the letter, and Mr. Kaczynski has looked at the 4 letter. Although the letter is addressed to me, I'm sure that 5 it involved all counsel and Mr. Kaczynski. And I believe 6 Mr. Kaczynski has some comment he would like to make on the 7 letter. 8 (Redaction for attorney-client privilege and 9 representation matters.) 10 MR. CLYMO: Your Honor, Mr. Denvir -- the letter itself 11 should probably be part of the record and sealed ultimately. 12 Although the letter is addressed to me, it was faxed to the 13 Court, and it's now become the subject of this discussion, and 14 Mr. Kaczynski has referred to it, so I feel that it should be 15 or a copy of it should be made a part of the court record. 16 THE COURT: I'm not sure about sealing it. In fact, I 17 was going to talk to counsel about that. It seems to me this 18 subject should be made public. The government needs to know 19 about this. I need to hear from the government on the 20 question because it could affect the trial commencing tomorrow 21 at 8:00 o'clock. So, in my opinion, the letter should be 22 public and I need to tell the government about it. 23 MR. DENVIR: Your Honor, I think we all agree that that 24 would make sense. The one part I would ask the Court to keep 25 in camera is Mr. Kaczynski's statements which didn't refer to KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 17 1 the nature of the defense that would be presented, his 2 feelings on those. I think those are still attorney-client. 3 But as far as the letter itself, I think everyone agrees 4 that is not an attorney-client matter. It's a representation 5 or possible change of representation matter. But we would ask 6 what Mr. Kaczynski just said, because it refers to 7 attorney-client matters, should remain sealed. 8 THE COURT: I think I should advise the government as 9 soon as possible of the fact that this issue will be covered 10 today at 4:00 o'clock. I should provide the government with a 11 copy of the letter and with whatever information I'm going to 12 state publicly about Mr. Kaczynski's position. 13 Here's the approach I'm contemplating. I'm going to 14 state that at the conclusion -- I'm going to rephrase it. I'm 15 going to say at what I thought was the conclusion of the ex 16 parte in camera hearing, it was decided that Mr. Kaczynski was 17 going forward with present counsel. Trial will start at 8:00 18 a.m. 19 I'm going to add some things to get your input on it. I 20 had appointed attorney Kevin Clymo under the rationale of two 21 Ninth Circuit decisions to serve as a conflict attorney for 22 Mr. Kaczynski, should such services be necessary. Just when I 23 thought everything was resolved, I received a fax on the bench 24 from Mr. Serra which reads, and I will read the fax into the 25 record. And then I will state that Mr. Kaczynski desires to KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 18 1 talk to him about representation, and then we'll cover that 2 among the other issues we have to cover at 4:00. 3 Is that okay? 4 MR. DENVIR: Fine, your Honor. 5 THE DEFENDANT: Fine with me, your Honor. 6 MR. CLYMO: I'm unclear as to my status. Am I 7 discharged from my responsibilities as requested by the 8 Court? 9 THE COURT: You are. And thank you very much. 10 MS. CLARKE: May we have just one moment, your Honor? 11 THE COURT: Yes. 12 MS. CLARKE: Thank you, your Honor. 13 THE COURT: All right. Thank you. 14 MR. CLYMO: Thank you, your Honor. 15 MR. DENVIR: And Mr. Kaczynski will be here at 4:00, I 16 take it now? 17 (Recess taken.) 18 ---oOo--- 19 20 21 22 23 24 25 KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 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 8 UNITED STATES OF AMERICA, ) ) 9 Plaintiff, ) ) 10 vs. ) No. Cr. S-96-259 GEB ) 11 THEODORE JOHN KACZYNSKI, ) ) 12 Defendant. ) ______________________________) 13 14 15 -- oOo -- 16 REPORTER'S TRANSCRIPT 17 JURY TRIAL 18 pp. 1-18 19 WEDNESDAY, JANUARY 7, 1998 20 -- oOo -- 21 22 23 24 Reported by: KELLY O'HALLORAN, CSR #6660 25 KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347 1 A P P E A R A N C E S For the Defendant: 2 OFFICE OF THE FEDERAL DEFENDER 3 801 "K" Street, Suite 1024 Sacramento, CA 95814 4 By: QUIN A. DENVIR Federal Defender, Eastern District of California 5 JUDY CLARKE Executive Director, Federal Defenders of 6 Eastern Washington and Idaho 7 8 STERNBERG, SOWARDS & LAURENCE 604 Mission St., 9th floor 9 San Francisco, CA 94105 BY: GARY D. SOWARDS 10 11 12 -- oOo -- 13 14 15 16 17 18 19 20 21 22 23 24 25 KELLY O'HALLORAN, CSR 6660 -- (916) 446-1347