Cover image for The United States of America versus Theodore John Kaczynski : ethics, power and the invention of the Unabomber
The United States of America versus Theodore John Kaczynski : ethics, power and the invention of the Unabomber
Mello, Michael.
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Publication Information:
New York : Context Books, [1999]

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367 pages ; 24 cm
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On January 22, 1998, Theodore John Kaczynski, Montana recluse and accused Unabomber, pled guilty and received three life sentences after a dramatic behind-the-scenes legal struggle. Kaczynski was written off by most as a vicious sociopath or Luddite eco-terrorist, and revered by a few as a modern-day John Brown defending a utopian vision at all costs.In this provocative analysis, Professor Michael Mello, who informally advised the Unabomber defense team, sifts through the media circus, court transcripts, and his own friendship with Kaczynski to expose the conflicts of interest and ideological forces that led to one of the most famous non-trials in legal history. Mello's book is an up-close look at a man who got lost in a system that could not accommodate him because it could not imagine him.

Reviews 1

Publisher's Weekly Review

The Unabomber described in these pages is not the terrorist who killed three and maimed two others. Rather, he's a frustrated defendant who was unable to exercise all the legal options available to him, because his lawyers kept him in the dark about their insanity-defense strategy until it was too late. Mello (Dead Wrong, etc.), a law professor and outspoken critic of capital punishment, corresponded with the imprisoned Theodore Kaczynski. He argues that Kaczyinski's lawyers were selective in presenting evidence in order to support a viewpoint highly prejudicial to their client's best interest. For example, they brought Kaczynski's cramped cabin from Montana to California so they could show it to a jury as proof of their client's dementia. What they did not bring, as one observer pointed out, was the beautiful mountain landscape the cabin inhabited. By entering a guilty plea in exchange for three life sentences, Kaczynski's legal team may have saved him from a death sentence, Mello writes, but they also kept him from getting his day in court and publicizing his ideas about the evils of technology and environmental degradation. Having made his point, Mello tries to draw a parallel between Kaczynski and John Brown. But it is hard to imagine Sierra Club members flocking to a Sacramento courtroom to defend Kaczynski's assaults on professors and businesspeople only vaguely associated with environmental destruction. Kaczynski, despite Mello's sympathy, comes across as someone who believes himself to be superior to anyone who doesn't subscribe to his anti-technology agenda. Mello is a penetrating critic of the legal system. However, though he doesn't try to make Kaczynski a hero, he will have hard time convincing most readers to take Kaczynski seriously as a social critic. (June) FYI: Context Books will publish Kaczynski's own manifesto, Truth Versus Lies, in August. (c) Copyright PWxyz, LLC. All rights reserved



No one can say That the trial was not fair. The trial was fair, Painfully fair by every rule of law, And that it was made not the slightest difference. The law's our yardstick, and it measures well Or well enough when there are yards to measure. Measure a wave with it, measure a fire, Cut sorrow up in inches, weigh content. You can weigh John Brown's body well enough But how and in what balance weigh John Brown? Stephen Vincent Benét, John Brown's Body (1928) Chapter One An Apologia Nine winters ago, a man I loved as a father was murdered by a mail-bomb: A few days before Christmas 1989, a racist coward with a grudge against the federal judiciary mailed a shoe-box sized bomb to federal appellate judge Robert S. Vance. The bomb detonated in the kitchen of Judge Vance's home on the outskirts of Birmingham, Alabama. His assassin now lives on Alabama's death row and, although I have spent a large portion of my life as a lawyer defending death row prisoners, part of me will cheer when Judge Vance's killer is executed.     Judge Vance was the first federal appellate judge murdered in the history of the United States. He is the only person I have known to be murdered. I was Judge Vance's law clerk for about a year following graduation from law school in 1982. He was far more than a boss. Over subsequent years, I came to rely on his wisdom, guidance and experience. I loved him. By the time of his death, he had become my friend and my father in the legal profession. I was much too distraught to attend the funeral. I had the plane tickets, but couldn't force myself to use them. I mourn for him every day. I miss him every day, and pray for him every night.     I mention Judge Vance's murder because I want to be clear at the outset that I harbor a special venom in my heart for people who kill by sending bombs through the mail. That's what the Unabomber did. For nearly two decades, the Unabomber created, and mailed, increasingly deadly bombs. Judge Vance, and the mail-bomb that murdered him, are never far from my mind whenever I think or write about the Kaczynski case. Every aspect of this book was influenced, in some immeasurable way, by the fact and the means of Judge Vance's killing.     My personal belief is that Theodore Kaczynski is the Unabomber. Had Kaczynski gone to trial for the UNABOM attacks, he almost certainly would have been found guilty; the prosecution's case against him -- a case built largely on the Unabomber's own words in his own writings -- was by most accounts overwhelming. However, there was no trial. After weeks of increasingly bitter struggle with his lawyers over control of the defense, Kaczynski pleaded guilty on January 22, 1998.     When Kaczynski pleaded guilty, he confessed to being the Unabomber, who was responsible for a series of bombings between 1978 and 1995 throughout the United States. He was called the Unabomber because the first bombs targeted universities and airlines. The Unabomber sent or set a total of sixteen bombs that killed three people and injured twenty-three others during his seventeen-year career. After the anonymous attacker's 35,000-word manifesto on the ills of modern industrialization and technology was published in June 1995 by the The Washington Post , Kaczynski's younger brother David began to suspect him and eventually turned him in to the FBI. The brother's divided soul (after turning his brother in, David Kaczynski fought to save his brother from a death sentence) is the latter-day version of a story as old as Cain and Abel.     I would prefer to be writing about nearly any other case. I'd rather write about Ted Bundy again. The courts, the media and the public have closed the book on the Unabomber case. I should do the same.     But it's not that simple, not for me anyway. Our government wanted to execute Theodore Kaczynski. I oppose capital punishment with a ferocity that matches Kaczynski's hatred of technology. Over a period of four years during the mid-1980s, I was a capital public defender in Florida, and since then I have devoted much of my professional energy and time writing and speaking out against the death penalty as a legal system.     Also, I must confess to recognizing something of myself in parts of Theodore Kaczynski, although certainly not in the murderous parts. Like Kaczynski, I have devoted a substantial portion of my life and passion to a cause many Americans view as doomed, if not crazy: abolition of capital punishment. Like Kaczynski, a while back I gave up big-city life and moved to a rural area (for me, it was Vermont), and I live there semi-reclusively. Like Kaczynski, I have kept a private diary for years.     To my surprise, I found myself agreeing with many of the ideas in the Unabomber's manifesto when it was published in The Washington Post . Like Kaczynski, I worry about technology's encroachments upon privacy and other cherished American freedoms. For me, the right to be left alone is a fundamental aspect of being an American. Somewhat like Kaczynski, I have mixed feelings about the mixed blessings of technology (I am writing these words with pen and paper in the hammock in my backyard, below a flawless, blue Vermont sky), and I am cheerfully clueless when it comes to computers. Unlike the Unabomber, my problem with technology lies with those who use it; the same science that made possible the miracles of manned space flight also made twentieth-century nightmares like the Holocaust and nuclear weapons.     There is one more thing I share with Theodore Kaczynski. I treat "experts" in forensic psychiatry (and law) with some skepticism. This skepticism comes from long experience as a capital defender, working with mental health experts on behalf of my condemned clients, trying (and often succeeding) to sculpt their professional opinions and reports in ways helpful to my purposes as an advocate for my death row clients. Like the legal profession, the mental health profession has its own rules and conventions that have little to do with the complex reality of human experience and action. Reality is too large a thing for any single profession to grasp in full, and the reductionism of both law and psychiatry explain human behavior only at the cost of oversimplifying it.     Still, these are not the reasons I had to write this book.     I felt compelled to write for a simple reason: Theodore Kaczynski was denied his day in court. This fact does not make his case particularly unique among capital cases in America. But Kaczynski was denied his day in court by his own defense lawyers, and not because these attorneys were inexperienced or underfunded or overworked -- far from it.     Kaczynski's experienced and well-financed lawyers simply decided that they, the lawyers, and not Kaczynski the client, were in control of the defense and that they had a mandate to save his life. His lawyers insisted that only a mental defect defense would sufficiently sway the jury and avert a death sentence. Kaczynski refused to cooperate with this defense. The struggles between Kaczynski and his paternalistic lawyers for control in his defense, raise the most fundamental moral issues with regard to lawyers, clients, ethics and power.     The Unabomber trial received massive media coverage. Seventy-five news organizations congregated at "Club Ted," a parking lot near the Sacramento courtroom. With rare exceptions, the mainstream media bought into the defense attorneys' spin on their epic struggle with Kaczynski, during its daily coverage of Kaczynski's interaction with the criminal justice system. In particular, the daily press accepted (1) the claim that Kaczynski was a paranoid schizophrenic; (2) that his lawyers acted properly in raising a mental defect defense regardless of their client's vehement objections; and (3) that Kaczynski himself, not his lawyers, should be held responsible for the disruption of his trial. The chaos into which Kaczynski's trial plunged was blamed on the client's alleged manipulation of the judicial process, rather than on the lawyers' ultimately successful manipulation and control of the defense.     I believe the popular wisdom to be wrong on all counts. First, the claim that Theodore Kaczynski was a paranoid schizophrenic must be qualified. To be more precise, I do not believe the existing public record supports the conclusion that Kaczynski suffers from any serious or organic mental illness, much less that his supposed mental illness justified the hostile takeover of the Unabomber defense. The daily press for the most part accepted the portrait of Theodore Kaczynski as a paranoid schizophrenic whose profound mental illness prevented him from seeing that the supposition of a mental defect was his only real defense. I am not criticizing the daily press; the reporters did the best possible job with the scanty facts that were available at the time. It is only because I have access to transcripts of the closed-door meetings between Kaczynski, his defense team and Judge Garland Burrell, that I am able to present a more complete picture of the drama that unfolded between Kaczynski and his lawyers. That picture convinces me that Theodore Kaczynski was unquestionably competent to stand trial. I believe that Kaczynski understood exactly what he was giving up in foregoing a mental defect defense. And for him it was worth it, even though it virtually guaranteed a death sentence. The death penalty was acceptable to him.     I do not believe that Kaczynski's lawyers had any legitimate right to force their mentally competent client to stake his life on a mental defect defense. So long as he followed their instructions, Kaczynski's attorneys never voiced doubt that he was mentally competent to stand trial, which meant that Kaczynski was competent -- and constitutionally entitled -- to make important decisions about his defense ( i.e. , how to plead, whether to testify, whether to appeal and whether to raise a mental defect defense). Given Kaczynski's decision months before trial that a mental defect defense was unacceptable to him, his lawyers were ethically obligated to either honor their competent client's wishes, or step aside so that another defense team -- one that was willing to follow their client's instructions -- would have sufficient time to prepare for Kaczynski's defense.     It is evident that the defense lawyers, and not Kaczynski, were responsible for disrupting the trial, when they monkey-wrenched it from his control. During the months leading up to the trial, Kaczynski's lawyers kept him uninformed about the defense they planned to raise. By the time Kaczynski figured out what his lawyers were planning for him, it was too late to change lawyers or, Burrell ruled, to represent himself. Cornered by his lawyers and the judge, Kaczynski had only two ways to prevent his court-appointed lawyers from portraying him as a madman: He could either kill himself, or plead guilty. On the eve of his capital trial, Theodore Kaczynski made a serious suicide attempt. Failing suicide, Kaczynski was left with only one way to prevent his lawyers from portraying him as mentally ill. He would have to plead guilty.     In short, I believe the Unabomber was poorly represented by his attorneys and, along the way, was also misrepresented by the media. That's why I needed to write this book. Virtually no one else seems inclined to make the argument that I make in this book: that Kaczynski's defense lawyers denied their client his day in court. The defense lawyers will not make that argument, for obvious reasons, and neither will the prosecutors. The Unabomber case ended, for them, when Kaczynski pleaded guilty. Few writers will be inclined to make the argument, because the Unabomber trial has long been old news, and because they by and large believe that Kaczynski was crazy and lucky to have escaped a death sentence. Kaczynski himself might want to raise the argument (and he has), but who will listen to him?     What happened between Kaczynski and his lawyers raises foundational issues of law, ethics and public policy; I believe that legal scholars are obligated to write about such important issues, even when that research takes them to places that make them uneasy. For reasons set out elsewhere, I have reached a point in my life where I do my own thinking and writing without regard to party lines articulated and enforced by self-appointed guardians of the "One True Faith of Capital Punishment Opposition." I was exiled from the abolition movement for my last book, and this one will not endear me to the head of that congregation or the adherents to its "Articles of Faith." So be it. I will continue to write where the research takes me, even when, as here, it takes me into territory that I might rather avoid.     I certainly detest the Unabomber's crimes. I don't share the Unabomber's willingness to use violence or the view that technology's problems require such a drastic and lethal response. I do feel strongly about something that most other Americans do not worry about too much: capital punishment. I can identify with a "voice in the wilderness," more easily than I can identify with the content of that cry or its specific call to action. I also like and respect his public defenders tremendously. I have much in common with them. As an opponent of capital punishment, I'm squeamish about setting out a factual argument that could invalidate Kaczynski's guilty plea and expose him again to capital punishment. Yet none of these reasons have struck me as persuasive grounds not to write about the Unabomber trial. William Finnegan, writing in The New Yorker , was dead right that "Kaczynski's quietly fierce performance [during the pre-trial] raised fundamental questions about a defendant's right to participate in his own defense, the role of psychiatry in the courts and the pathologizing of radical dissent in the courts and the press."     Ultimately, I wrote this book because it addresses important issues of law, ethics and psychiatry, and because I saw no intellectually legitimate reason not to write it. But maybe this last statement is a cop-out. The fact is, I have a deep ambivalence about this subject matter. The issues of law, ethics and public policy raised by the Unabomber case are important to me -- and, they are important to me for the very same reasons I feel ambivalent about the Unabomber. The issues that concern me are discussed in the Unabomber's manifesto, with its argument about the problems associated with paternalism and modern modes of socialization.     My only sympathy for Kaczynski is informed by his status as a capital defendant who was cheated by the justice system and by his own public defenders, and not as a fellow traveler regarding his views about violence or technology. But I do share his ideas about autonomy, freedom and privacy -- and that's why I'm interested in the moral, ethical and legal issues raised by his case. This story is about the interaction of two ideologies with irreconcilable differences.     My professional background and experience as a former capital public defender affords me a certain insight into the war that developed between Kaczynski and his lawyers. For a long time, my job was to read trial transcripts -- and to read between the lines of those transcripts -- and then develop a narrative of what was really going on during the court proceedings and behind the scenes. To distill an accurate narrative from a massive trial record, particularly in a case that didn't go to trial, one must know the language of the law and be steeped in the chess-like world of short-term trial tactics and the long-range legal strategies of the actors who made that record. Based on the extensive court files in the Kaczynski case, I think I have a fairly clear picture of what his lawyers did and why they did it. In their court filings, the lawyers explained in some detail why they assumed control of the Kaczynski defense. The existing record is more than sufficient to allow examination of those reasons.     The Unabomber case is fascinating on any number of levels: the genuinely brilliant mathematics-professor-turned-Montana-hermit-serial-bomber had a Harvard degree at age twenty and was a rising star at the University of California at Berkeley, which boasted one of the world's top mathematics departments. Next, there is the Cain-and-Abel dimension of the case which carries with it the conflicting loyalties that David Kaczynski owed to his family and his responsibility to society. Finally, there is Kaczynski's pro-freedom and anti-technology politics and the defense he wanted his court-appointed attorneys to raise against the capital murder charges. My guess is that Kaczynski wanted the defense to be based on the political ideology articulated in the 35,000-word manifesto that he forced The Washington Post to publish in 1995. All these matters will be interwoven into the fabric of this book, but they are not its principal focus.     I want to focus on how two historically distinct groups of lawyers, confronted with the impossible task of representing would-be political martyrs, clients with political ideologies as well as alleged evidence of mental illness who were on trial for their lives, chose to proceed with their respective defenses. Kaczynski's defense team in 1997-98 and John Brown's trial lawyers in 1859 present a true study in contrasts. But they also have something in common. Both cases provide insights into what one historian of John Brown has aptly called, in a somewhat different context, the "politics of insanity -- or, specifically, the politics of the mental defect defense." I do not believe that Theodore Kaczynski or his cause are comparable to John Brown and the anti-slavery movement. But this is of little interest to me. What interests me are the very different ways in which Kaczynski's lawyers and Brown's lawyers dealt with their respective ideologically-motivated martyr-clients.     Of the two cases, John Brown's lawyers served him better than their counterparts served the Unabomber. The issues raised in this book are matters about which reasonable people of conscience can and will disagree, even when all parties to the conversation possess all the facts, which in this instance I certainly do not. Kaczynski's lawyers know far more about their client than any outsider ever will. I am not here to put the Unabomber defense team on trial.     Capital defense lawyers work in an ethical hall of mirrors. They must attempt to reconcile, harmonize and live with a host of conflicting ethical values. Because the stakes are life and death those ethical conundrums are placed in especially bold relief. For the capital defense lawyer, issues of ethics are neither theoretical nor abstract. How he or she addresses these issues will drive virtually every aspect of how the client's case will be investigated and litigated.     I have worn the same professional masks as those donned by Kaczynski's attorneys, and I have spent a significant portion of my life as a lawyer representing people who the government wants to execute. Like Kaczynski's lawyers, my experience has taught me that capital punishment as a legal system has not lived up to its promises of fair and equitable treatment for those on trial for their lives. Like Kaczynski's lawyers, I know how complicated the attorney-client relationship can be in the best of times and that, when the stakes are life itself, the times are rarely the best.     But on the most fundamental aspect of the attorney-client relationship, I part company with the Unabomber's lawyers. Kaczynski's attorneys apparently viewed their essential role as saving their client's life by any legal means necessary -- to save him in spite of himself. Although they conceded again and again that Kaczynski was mentally competent to stand trial, his lawyers saw it as their decision -- not their client's decision -- to stake their client's life on a defense based on mental defect -- a defense that he found reprehensible on many counts, not the least, one would think, being that it was in direct conflict with the Unabomber's manifesto.     I believe his lawyers' primary duty was to empower their client, not to manage him. The choice of whether to stake Kaczynski's life on a mental defect defense -- or on a political defense based on the Unabomber's ideas about technology -- belonged to Kaczynski and not his lawyers. I agree with Kaczynski's lawyers that, as a strategic matter, a mental defect defense was more likely than a political defense to spare Kaczynski from a death sentence (although, given the crimes and Kaczynski's coldly rational explanations for committing them, I doubt that any defense could have kept him from a death sentence). I also agree that a political defense probably would have backfired, as it reportedly did with Timothy McVeigh, angering the jury and thus making a death sentence more likely.     But this is not the point. Given the overwhelming evidence that Kaczynski was mentally competent to stand trial, the decision to forgo a mental defect defense was his to make, tactically wise or not. The columnist Ellen Goodman, writing about the case in early January 1998, asked rhetorically if the "Mad Hatter" should be "running the show." My answer is emphatic: Hell yes, when the Hatter is on trial for his life and especially when the evidence of his madness is flimsy.     My conclusion in this regard depends, of course, on my belief, as well as that of the judge and prosecution, that Theodore Kaczynski was mentally competent to stand trial. His lawyers certainly thought he was sufficiently competent to stand trial -- so long as he followed their instructions regarding the mental defect defense. Only when Kaczynski refused to allow his lawyers to portray him as a madman -- and the manifesto as the mere rants of a madman -- did they entertain questions about his mental capacity to stand trial, and then only desultorily.     This book explores how Theodore Kaczynski was represented -- by his lawyers, and by the news media. The book proceeds in eight parts. This introductory chapter sets the stage. Chapter two tells the story of the war that developed between Theodore Kaczynski and his attorneys. This narrative is based largely on court documents, some of which were sealed during the trial itself. They have provided me with sufficient information to piece together a fairly complete account of what happened between Kaczynski and his lawyers. Chapter three considers the aftermath of the Unabomber non-trial and the possible repercussions. Chapter four departs from Sacramento to unravel the eerie parallels between the ethical choices faced by Kaczynski's lawyers and those of John Brown. Chapter five evaluates the very different courses of action taken by the two groups of lawyers and concludes that Brown's lawyers got it right. Using a hypothetical scenario, chapter six explores the ethical issues associated with attorney-assisted suicide.     Chapter seven discovers a point of contention that has not received much attention to date. By pleading guilty, Kaczynski waived his right to challenge the government's decision to use his private journals as a basis for a death sentence. This chapter examines the legal rights Kaczynski gave up by pleading guilty and suggests that any conviction of murder would have been extremely vulnerable to reversal by an appellate court. The diary issue first attracted me to the Unabomber trial. During the summer of 1997, I worked as an informal advisor to the Kaczynski legal team, on the diary issue (my limited involvement in this narrow aspect of the Unabomber defense is a matter of public record). Chapter eight brings the book full circle, remembering the mail-bomb murder of my friend, Judge Robert S. Vance, and concluding with some final considerations. Equally important to me is what this book is not. This book is not an attempt to psychoanalyze the Unabomber, and it does not represent any search for the "real" Theodore Kaczynski. For that reason, I have not included the information I possess about, for example, Kaczynski's sexual life or fantasies. Dr. Sally Johnson's forty-seven-page psychiatric evaluation of Kaczynski has now become public information, and there is more than enough available on that score to satisfy the most prurient voyeur. Such information is not germane to this book, and I do not include it.     I would like to also stress that this book was not written to provide grounds for Kaczynski to invalidate his guilty plea. If that happens, then so be it.     It has not been my intent to argue that criminal defendants suffering from seriously delusional mental illness ought to be allowed to serve as their own lawyers. A defendant whose illness renders him mentally incompetent to stand trial should be found mentally incompetent to stand trial. Again, there was never any serious doubt about Theodore Kaczynski's mental competency to stand trial. The legal test for competency is low, and Kaczynski clearly met it.     When the principal "evidence" of the defendant's mental illness is a minority lifestyle, a minority political ideology and inexplicably horrible crimes committed to advance that ideology, we should be very careful about how we label that defendant. Copyright © 1999 Michael Mello. All rights reserved.