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The 9th U.S. Circuit Court of Appeals ruled Monday that Theodore Kaczynski’s last-minute request to represent himself at trial was in “bad faith,” and refused to vacate the so-called Unabomber’s guilty plea. In a split decision criticized by one close observer of the case as “political,” a three-judge panel held that Kaczynski’s wish to represent himself after learning that his lawyers planned to introduce evidence of his mental state was both untimely and intended to delay his ultimate fate, even though Kaczynski was willing to go to trial right away. “While Kaczynski does contend that his attorneys deceived him about their intentions to present a mental status defense, he knew what they planned to do before deciding to plead guilty, and he does not claim that he was persuaded to plead guilty by threats or misrepresentations of his attorneys, the court or the government,” wrote Judge Pamela Rymer. She was joined by Judge Melvin Brunetti. But in dissent, Judge Stephen Reinhardt wrote that the majority was wrong, even if their hearts, and that of the trial judge, were in the right place. Instead, Reinhardt gift-wrapped for a rehearing or a higher court the question of whether the U.S. Supreme Court’s 1975 decision in Faretta v. California, 422 U.S. 806, which guarantees a defendant the right to represent himself, is sometimes in conflict with due process. Kaczynski argued in court briefs that he was forced to plead guilty to avoid a defense he did not approve of, which included a diagnosis of paranoid schizophrenia. Much has been written since of the significant rift that developed between the man convicted of being the Unabomber and his attorneys, federal public defenders Quin Denvir and Judy Clarke. Had the court found Kaczynski sincere, his case would apparently be heading for trial. Instead, the court based its bad-faith finding on three factors: that Kaczynski’s motion to represent himself was 2-1/2 weeks late, that Kaczynski should have figured out the planned defense during voir dire and that the motion would cause considerable delay — despite Kaczynski’s assertion at the time that he was ready to proceed immediately. Kaczynski sought a defense espousing some of the theories outlined in “Industrial Society and Its Future,” a 35,000-word manifesto published in major newspapers in exchange for an end to the Unabomber’s two-decade reign of terror — in other words, a self-defense founded upon the intrusion of technology into society. The Unabomber was the name given to an FBI suspect in a series of bombings beginning in 1975, targeting university professors, airline executives and others. The publication of the manifesto backfired, though, when David Kaczynski read it and realized it might be the work of his brother, then living as a recluse in Montana. Theodore Kaczynski was arrested in 1996. In 1998, Kaczynski pleaded guilty to several bombings committed by the Unabomber, including three that killed their targets. The decision may have saved Kaczynski from the death penalty. Relying heavily on the record, the majority accepted U.S. District Judge Garland Burrell Jr.’s conclusion that Kaczynski knew well in advance that his attorneys planned a mental state defense, although Reinhardt offered a strong rebuttal. The panel didn’t reach the question of whether Kaczynski had a right to control his defense. The possibility that Kaczynski would represent himself arose prior to Burrell’s denial of the motion on Jan. 8, 1998. Burrell conferred with Kaczynski and his counsel on Dec. 22, 1997 to discuss the disintegrating attorney-client relationship. Kaczynski also once told Burrell that he was “too tired,” after 18 months shuffling between court and jail, to take on the task of representing himself. But on Jan. 7, Kaczynski apparently tried to hang himself in his cell, and things changed. So did Burrell’s opinion of Kaczynski. Before, Burrell had referred to Kaczynski as “lucid” and “calm,” but afterward ordered Kaczynski to be interviewed by a psychiatrist to see if the former math professor was fit to stand trial. The psychiatrist found he was. In his dissent, Reinhardt suggested Kaczynski may not be fit to represent himself, and that allowing him to do so is unjust — even though, under controlling law, he would have allowed him to do it. “The case of Ted Kaczynski not only brings together a host of legal issues basic to our system of justice, it also presents a compelling individual problem,” Reinhardt wrote. “What should be the fate of a man, undoubtedly learned and brilliant, who determines, on the basis of a pattern of reasoning that can only be described as perverse, that in order to save society he must commit a series of horrendous crimes? “What is the proper response of the legal system when such an individual demands that he be allowed to offer these perverse theories to a jury as his only defense in a capital case — a defense that obviously has no legal merit and certainly no chance of success?” And what should the legal system do if a defendant strives to be his own lawyer to avoid evidence of mental illness? Reinhardt asked. “The district judge faced these questions and, understandably, blinked,” Reinhardt wrote. “He quite clearly did so out of compassionate and humanitarian concerns.” Vermont Law School professor Michael Mello, author of “The United States of America versus Theodore John Kaczynski,” agreed with Reinhardt that there is no basis in the record for denying Kaczynski’s request and savaged the majority’s opinion as political, comparing it with the Supreme Court’s Bush v. Gore decision in December. “It’s laughable,” said Mello, who had corresponded with Kaczynski about his defense prior to his appeal. “There are some judicial decisions where the only appropriate response is laughter. It borders on being disingenuous.” “Had this not been the Unabomber case, it’s hard to believe this case would have been decided the same way,” Mello said. Most bothersome to Mello was the majority’s assertion that Kaczynski’s true motive was to delay his fate. “That’s the silliest part of the opinion. He was clear that he wanted to go [to trial] right away,” Mello said. “It’s loopy. Faretta means nothing in the 9th Circuit anymore if this decision has controlling precedent.” Northern District Federal Public Defender Barry Portman said the decision was too fact-specific to set a broad precedent. He also said the decision looked “ en banc-proof and cert-proof.” “It would be unusual for an en banc review of a record scrutiny, because they’re not announcing any new law; they’re just saying, ‘Was the record sufficient?’ ” Portman said. And he doubted that many 9th Circuit judges would vacate the plea agreement to let Kaczynski represent himself, given the potential outcome. “Who would be lining up to make sure that Ted Kaczynski would be executed?” Denvir and Richard Bonnie, a University of Virginia School of Law professor whom Kaczynski credited with helping him prepare his pro se briefs, refused to comment on the decision in United States v. Kaczynski, 01 C.D.O.S. 1264.

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