Copyright 2000 The Times-Picayune Publishing Co.
May 28, 2000 Sunday, ORLEANS
SECTION: NATIONAL; Pg. A01
LENGTH: 823 words
HEADLINE: UNABOMBER SEEKS TO VOID HIS GUILTY PLEA; NEW TRIAL COULD RESULT IN EXECUTION
BYLINE: By Howard Mintz Knight Ridder Newspapers
DATELINE: SAN JOSE, CALIF.
From his maximum-security prison cell in Colorado, Theodore Kaczynski, known as the Unabomber, is back to the exhaustive writing regimen he perfected through two decades holed up in a cabin in the Montana wilderness.
But while Kaczynski once spent his days and nights railing against the technological revolution, he now devotes his time musing about the law. And if his latest treatise is persuasive enough, it could cost him his life.
As a result of an unusual order last fall from the 9th U.S. Circuit Court of Appeals in San Francisco, Kaczynski has a chance to upend a plea deal he cut with the U.S. Justice Department two years ago that let him avoid the death penalty for his murderous 17-year bombing campaign.
The court order lets Kaczynski seek a new trial based on his argument that he was coerced into pleading guilty, in part because he was improperly prevented from directing his own defense. A successful appeal would reopen one of the most sensational murder cases in U.S. history, subjecting Kaczynski to possible execution. It also might let this notorious defendant settle a vexing dilemma surrounding death-penalty cases nationwide: Whether a defendant or his attorney has the ultimate authority to call the shots in a courtroom.
"I wish it wasn't the Kaczynski case," said Hastings College of the Law professor Rory Little, former chief of appeals in the San Francisco U.S. attorney's office. "If it wasn't the Kaczynski case, where the pressure to affirm the conviction is huge, this raises major questions about the relationship for defendants and criminal defense lawyers."
For his part, Kaczynski seems unfazed by the potential consequences of his case, having made clear that he prefers death to spending the rest of his life in a 12-by-7-foot prison cell that is just a shade smaller than the ramshackle cabin he owned near Lincoln, Mont.
Writing in the third person, Kaczynski said in one of his court briefs: "From shortly after his arrest ... Kaczynski had repeatedly made it clear to his attorneys that if presented with a choice between life imprisonment and a death sentence, he would just as soon have the death sentence, or would even prefer it to life imprisonment."
Both Kaczynski and the Justice Department have filed their final legal arguments in the case, and the federal appeals court is likely to decide the appeal sometime this year.
The government is trying to preserve the plea deal, arguing in court papers filed in March that Kaczynski voluntarily pleaded guilty in January 1998 to a bombing spree that killed three people and injured 23 others from California to New Jersey. Federal prosecutors said in court papers that Kaczynski was well aware of the "consequences of his plea."
"I'm certain the department (of Justice) believes there were no constitutional deficiencies and what is going on here is another exercise in gamesmanship," former Sacramento U.S. Attorney Charles Stevens, once involved in the Unabomber prosecution, said last week. "This is a case where the I's were dotted and the T's were crossed."
But Stevens and other lawyers knowledgeable about the appeal concede Kaczynski has employed his mathematician's keen mind in a way that has forced the federal courts to deal with important and unsettled legal issues. Up to now, the courts haven't really settled the question of who directs a capital defense: the defendant whose life is on the line, or the lawyer, usually appointed by the court because most murder defendants can't afford to pay for an attorney.
In stacks of legal papers written in penmanship neat enough to warm a grade-school teacher's heart, Kaczynski insists that his defense attorneys, Quin Denvir and Judy Clarke, put him in an impossible position because of their plan to make his mental state a key element of defense strategy. Kaczynski refused to let them depict him, as he put it, as a "grotesque lunatic."
As a result, the appeal argues that Kaczynski was coerced into a plea agreement because his only option was to go through a trial putting on a defense he opposed. Kaczynski also says U.S. District Judge Garland Burrell improperly denied him his constitutional right to represent himself once the rift with his defense team surfaced.
Burrell struggled with the issue for days as it became clear the relationship between Kaczynski and his attorneys had broken down toward the end of months-long jury selection. In the end, the judge concluded that Kaczynski's bid to represent himself was a ploy to delay the trial.
Denvir, the federal public defender in Sacramento, declined to discuss the appeal, other than to say he believes the plea agreement is on firm ground. But many defense lawyers, while conceding Kaczynski has raised tough questions, say it would set a dangerous precedent to let defendants in capital trials dictate defense strategy or represent themselves when there are doubts about their mental state.