Published Monday, May 22, 2000, in the San Jose Mercury News http://www.newsmakingnews.com/unabomber5,22,00.htm

Unabomb appeal could set precedent Kaczynski's request questions authority in capital trials BY HOWARD MINTZ Mercury News

From his maximum-security prison cell in Colorado, Unabomber Theodore Kaczynski 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 to 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 an opportunity to upend a plea deal he cut with the U.S. Justice Department two years ago that enabled him to avoid the death penalty for his murderous 17-year bombing campaign.

The court order allows Kaczynski to 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 not only re-open one of the most sensational murder cases in U.S. history, subjecting Kaczynski to possible execution. It also might allow this notorious defendant to settle a vexing dilemma surrounding death-penalty cases nationwide: Whether a defendant or his lawyer 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 allow them to 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 maintains that 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 lawyers had broken down toward the end of monthslong 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.

`Legal suicide'

``I don't think it's our obligation to let people commit legal suicide,'' said William Moffitt, president of the National Association of Criminal Defense Lawyers. ``Lawyers ought not to be instruments in that way. And this is all overlaid by the fact there are real mental health issues here.''

Vermont law Professor Michael Mello, who helped Kaczynski with his legal arguments until they had a falling out last year, disagrees, saying the federal appeals court should order a new trial. Mello has written a book about the case and how he believes Kaczynski's Sixth Amendment rights were violated by the plea agreement.

``I understand and sympathize with what (Denvir and Clarke) did,'' Mello said. ``What they did is what most capital defense attorneys would do. It's the conventional wisdom. I just don't agree with it. When you're life is hanging in the balance, and if you are mentally competent to stand trial -- and clearly as mentally competent as Kaczynski was -- then you call the shots.

Deciding strategy

``It's your life, it's your crime, it's your trial,'' he said.

The Justice Department, in something of a flip-flop from its trial position, now argues in the federal appeals court that Denvir and Clarke -- both widely respected, veteran defense lawyers -- had the authority to decide the defense strategy, not Kaczynski. Defendants have a recognized right to make decisions such as whether to plead guilty or testify at a trial, but the law is less clear about issues such as trial strategy.

The 9th U.S. Circuit Court of Appeals, suggesting that it may want to clear up that question, asked in its order whether a defendant like Kaczynski has a constitutional right to prevent defense lawyers from putting on evidence of mental impairment during a trial.

Kaczynski, who said in his court papers that such a defense would be ``unendurable,'' argues that he ``does not suffer from serious mental illness.''

Legal experts following the case, as well as former members of the Unabomber prosecution team, suspect Kaczynski is seeking a new trial so he can use it as a platform for his political views and to air his anti-technology doctrines. As a result, it has come as no surprise that he is trying to keep his case alive in the legal system, more than 20 years after he delivered his first bomb through the mail.

``It goes with the territory,'' said Stephen Freccero, one of the four lead prosecutors in the case who now works for a San Francisco law firm. ``You assume there are going to be legal challenges. We were very firm in the plea negotiations in trying to minimize that for the sake of the victims. There was a big concern to bring finality to the situation.''

Contact Howard Mintz at hmintz @sjmercury.com or (408) 286-0236.