Copyright 2000 The Denver Post Corporation
The Denver Post
May 29, 2000 Monday 2D EDITION
SECTION: A SECTION; Pg. A-19
LENGTH: 1047 words
HEADLINE: Kaczynski's endgame raises many questions Legal experts find death-penalty plea a dangerous precedent
BYLINE: By Howard Mintz, Knight Ridder News Service,
SAN JOSE, Calif. - From his maximum-security prison cell inColorado, Unabomber Theodore Kaczynski is back to the exhaustivewriting regimen he perfected through two decades holed up in acabin in the Montana wilderness.
But while Kaczynski once spent his days and nights railingagainst the technological revolution, he now devotes his time tomusing about the law. And if his latest treatise is persuasiveenough, 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 anopportunity to upend a plea deal he cut with the U.S. JusticeDepartment two years ago that enabled him to avoid the deathpenalty for his murderous, 17-year bombing campaign.
The court order allows Kaczynski to seek a new trial based onhis argument that he was coerced into pleading guilty, in partbecause he was improperly prevented from directing his own defense.
A successful appeal would reopen one of the most sensationalmurder cases in U.S. history, subjecting Kaczynski to possibleexecution. It also might let the notorious defendant settle avexing dilemma surrounding death-penalty cases nationwide: whethera defendant or his lawyer has the ultimate authority to call theshots in a courtroom.
'I wish it wasn't the Kaczynski case,' said Hastings Collegeof the Law professor Rory Little, former chief of appeals in theSan Francisco U.S. attorney's office. 'If it wasn't the Kaczynskicase, where the pressure to affirm the conviction is huge, thisraises major questions about the relationship for defendants andcriminal defense lawyers.'
For his part, Kaczynski seems unfazed by the potentialconsequences of his case, having made clear that he prefers deathto spending the rest of his life in a 12-by-7-foot prison cellthat is just a shade smaller than the ramshackle cabin he ownednear Lincoln, Mont.
Writing in the third person, Kaczynski said in one of hiscourt briefs: 'From shortly after his arrest Kaczynski hadrepeatedly made it clear to his attorneys that if presented with achoice between life imprisonment and a death sentence, he wouldjust as soon have the death sentence, or would even prefer it tolife imprisonment.'
Kaczynski and the Justice Department have filed their finallegal arguments in the case, and the federal appeals court islikely to decide the appeal this year.
The government is trying to preserve the plea deal, arguingin court papers filed in March that Kaczynski voluntarily pleadedguilty in January 1998 to a bombing rampage that killed threepeople and injured 23 others from California to New Jersey.
Federal prosecutors said in court papers that Kaczynski waswell aware of the 'consequences of his plea.'
'I'm certain the Department (of Justice) believes there wereno constitutional deficiencies and what is going on here isanother exercise in gamesmanship,' said former Sacramento U.S.Attorney Charles Stevens, who once was involved in the Unabomberprosecution. 'This is a case where the i's were dotted and the t'swere crossed.'
But Stevens and other lawyers knowledgeable about the appealconcede Kaczynski has employed his mathematician's keen mind in away that has forced the federal courts to deal with important andunsettled legal issues.
Up to now, the courts haven't really settled the question ofwho directs a capital defense: the defendant whose life is on theline, or the lawyer, usually appointed by the court because mostmurder defendants can't afford to pay for an attorney.
In stacks of legal papers written in penmanship neat enoughto warm a grade-school teacher's heart, Kaczynski insists that hisdefense attorneys, Quin Denvir and Judy Clarke, put him in animpossible position because of their plan to make his mental statea key element of defense strategy. Kaczynski refused to allow themto depict him, as he put it, as a 'grotesque lunatic.'
As a result, the appeal argues that Kaczynski was coercedinto a plea agreement because his only option was to go through atrial putting on a defense he opposed. Kaczynski also maintainsthat U.S. District Judge Garland Burrell improperly denied him hisconstitutional right to represent himself once the rift with hisdefense team surfaced.
Burrell struggled with the issue for days as it became clearthe relationship between Kaczynski and his lawyers had broken downtoward the end of months-long jury selection. In the end, thejudge concluded that Kaczynski's bid to represent himself was aploy to delay the trial.
Denvir, the federal public defender in Sacramento, declinedto discuss the appeal, other than to say he believes the pleaagreement is on firm ground. But many defense lawyers, whileconceding Kaczynski has raised tough questions, say it would set adangerous precedent to let defendants in capital trials dictatedefense strategy or represent themselves when there are doubtsabout their mental state.
'I don't think it's our obligation to let people commit legalsuicide,' said William Moffitt, president of the NationalAssociation of Criminal Defense Lawyers. 'Lawyers ought not to beinstruments in that way. And this is all overlaid by the factthere are real mental health issues here.'
Vermont law professor Michael Mello, who helped Kaczynskiwith his legal arguments until they had a falling out last year,disagrees, saying the federal appeals court should order a newtrial. Mello has written a book about the case and how he believesKaczynski's Sixth Amendment rights were violated by the pleaagreement.
'I understand and sympathize with what (Denvir and Clarke)did,' Mello said. 'What they did is what most capital defenseattorneys would do. It's the conventional wisdom. I just don'tagree with it. When you're life is hanging in the balance, and ifyou are mentally competent to stand trial - and clearly asmentally competent as Kaczynski was - then you call the shots.
'It's your life, it's your crime, it's your trial,' he said. GRAPHIC: PHOTO: Kaczynski