Even asa judge is finding Ted Kaczynski's first round of appeals "wholly withoutmerit," the Vermont law professor who helped him craft the approach ison the phone to me, confidently predicting that eventually the Unabomber willget his day in court. "Ikeep stopping myself from calling it a 'retrial,' because it is not really aretrial," Michael Mello says. "He never had a trial. It was the non-trialof the century."
In his newbook The United States of America versus Theodore John Kaczynski (ContextBooks, 368 pages, $24.95) Mello, a former capital defense attorney who's taughtat Vermont Law School since 1988, lays out with lawyerly clarity why he thinksthe Unabomber was railroaded last year into copping a guilty plea rather thangoing to trial, and why he believes there are any number of constitutional groundsfor granting him a new trial. It's sort of the lawyer's summation Kaczynskinever had to the defense he never got to present.
Kaczynskifirst wrote Mello a year ago, shortly after he pleaded guilty and received fourlife sentences plus 30 years without possibility of parole. He's written Mellosomething like another 150 letters since. You'd think there'd be certain dangersinherent in being the Unabomber's pen pal-it has a certain ring, like "Chinaman'schance" or "snowball in hell"-but evidently Kaczynski has noaccess to the proper materials in jail.
When Mellotells me, "It's been a fairly intense correspondence, sometimes stormy-weare pretty different," I can't help feeling there're aspects to this ofthe traditional jailhouse romance, where someone on the outside starts a correspondencewith some death row inmate that blossoms into a doomed romance. I've met somedeath row girlfriends before, talked to a few at length, and there's somethingsimilar about the ardor with which Mello says things like, "Just in termsof raw brainpan intelligence, he is one of the two or three brightest peopleI have ever encountered in all my travels. He is," he adds, tellingly, "frighteningly smart."
It standsto reason that Mello would be interested in the case. "I like taking oncases that every other lawyer thinks are losers, and then winning them,"he says. Especially capital offense cases: He's a capital punishment abolitionist,whose previous books include Dead Wrong: Notes on a Lawyer's Life of Deathand Against the Death Penalty. He's been involved in several deathrow appeals, including Ted Bundy's.
"Wecame within one vote of what would have been a fairly miraculous result in theTed Bundy case," he tells me. "In the U.S. Supreme Court, the badold kill-'em-all U.S. Supreme Court, we came within one vote of getting an indefinitestay the night before he was executed."
From theday Kaczynski was arrested in April '96, most people (like Mello) have beenconvinced he is the Unabomber, although some conspiracists (like my pal Knipfel)remain just as convinced he's not. (Kaczynski's plea-bargained confession fallsshort of an unequivocal admission that he's the Unabomber.) When the 35,000-wordUnabomber manifesto appeared the year before, it was generally seen as the ramblingsof a madman, yet to some greens, luddites and technophobes, including Melloand Kirkpatrick Sale, it made perfect sense.
As Mellointerprets it, Kaczynski's struggle not to be portrayed to the world as a nut,or have his political agenda perceived as simple madness, was at the crux ofhis conflict with his attorneys. By the time he'd been brought to Sacramentoto stand trial in the federal courthouse there, everyone around Kaczynski-hisfamily, his counsel, the media-had clearly decided he was crazy. But the evidence,including all the bombings, is thin, according to Mello.
There wasnot much terribly traumatic in Kaczynski's family background. His father TedSr. did commit suicide when he found out he had cancer, but that wasn't until1990. Ted Jr. was a math wiz who got into Harvard in 1958 (where he participatedas a volunteer guinea pig in what may have been CIA tests of mind-altering and"mind control" drugs-a tantalizing factoid). He went on to teach universitycourses in mathematics and wrote a couple of brilliant papers before "droppingout" in 1969, at the age of 27, and moving to the Montana hills, near thesmall town of Lincoln, where he lived in his infamously tiny cabin-and where,if he is the Unabomber, he began constructing and deploying his bombs in 1978.Over the next 17 years he seems to have mailed or placed 16 devices, which killedthree people and injured 23 others.
None ofwhich makes him mentally ill, according to Mello.
"Personally,I admire Theodore Kaczynski for his refusal to portray the bombings as the productsof a bad childhood and adolescence," he writes. "The seventeen-yearbombing campaign was methodical. The Unabomber eluded the largest and most expensivemanhunt in American history." (Indeed, as is often noted, the FBI wouldstill be looking for him had his own brother not turned him in.) "And hetook very, very good notes on all of it." Had the case gone before a jury,he writes, "I think the jury would have found Kaczynski's alleged mentalillness dubious."
Mello, whomoved to rural Vermont years ago, finds it especially risible that Kaczynski'slife of solitude in the woods automatically means he's nuts.
"Ifhe is a nut case," he says to me, "probably half the population ofVermont are also nut cases on the same evidence, and virtually everyone I havespoken with in Lincoln, MT. I mean, that's how people live there."
Still, Isay, the man went on a national campaign of killing and maiming innocent peopleto illustrate his luddite principles. There is the obvious supposition thatyou'd have to be crazy to do that.
"Absolutely,"Mello responds, "and that's an aspect of the case that in some respectsis the most fascinating to me. Here you've got a guy that just by virtue ofthe way he went about committing the crimes didn't seem crazy. The crimes themselvesare exquisitely premeditated. I mean this guy premeditated for almost two decades,and then he explained in great detail in his 35,000-word manifesto why he didwhat he did. And yet as soon as he was arrested, the moment that first photographof him was beamed around the world, the one where he is wearing his grubby,torn-up clothes and the hair is all askew, I think people looked at that andsaid he's crazy, he has got to be crazy.
"Thereis something very comforting in the notion that the Unabomber is a 'mad bomber,'"he goes on. "If he is crazy then we don't need to pay attention to hisideas or, really, to him. The alternative hypothesis is, I think, much moreinteresting, but much more frightening: that here is a guy who was incrediblysane, incredibly bright, who devoted the bulk of his adult life to handcraftingand sending bombs throughout the country. The image of the sane bomber is muchmore frightening than the image of the mad bomber... It's what people expectedto see, and on some level what they needed to see."
Only fivedays after Kaczynski's arrest, the high-profile California defense attorneyTony Serra-the ponytailed lefty played by James Woods in True Believer-wroteKaczynski and offered to defend him pro bono, noting that the Unabomber's "ideologywould be the crux of the defense (not insanity; not a 'whodunit')." Tohis later regret, Kaczynski stayed with his court-appointed legal team.
"BothKaczynski and his lawyers seemed to recognize that he would almost certainlybe found guilty of murder in the first phase of his bifurcated capital trial,"Mello writes. "The battleground in the Unabomber case was over the penaltyphase of the trial. This was when evidence in support of a 'necessity defense'(based on the ideological belief that his actions were necessary per argumentscontained in the manifesto) would have been admissible..."
But thatargument wasn't going to be made. Kaczynski was evidently the last person involvedto learn that his lawyers "intended to base their defense on claims thattheir client was crazy," Mello writes. It was November '97, and jury selectionhad already begun when Kaczynski, on one of his first actual appearances incourt, was visibly stunned to learn that his lawyers had made a psychiatricreport on him public without informing him. "Kaczynski's surprise appearedto be genuine," Mello writes. "He slammed a pen down on the defensetable, and it skittered across the table." And in Mello's opinion, "His anger was warranted."
Kaczynskiwrote a detailed letter to the presiding judge, Garland E. Burrell, explainingthat his lawyers had "deceived" him. "I also discussed with myattorneys their future plans for my case," he wrote, "but I am notcertain that their plans are in my best interest as I interpret it, and I foundtheir reasoning in support of their plans unconvincing. I therefore feel stronglythe need for legal advice from some source outside my present defense team..."
Kaczynski'sletters to Judge Burrell appear in the public record for the first time in Mello'sbook. Arguing his case against his lawyers with clarity and logic, they do goa long way toward refuting the image of the man as a babbling lunatic.
"Theyare the single best piece of evidence about what was going on," Mello saysto me. "Judge Burrell, now I don't know if this was his intent, but itcertainly had the effect of giving the daily press a very warped view of whatwas going on between Ted and his lawyers. The letters for me really proved forme beyond any doubt that he was not just mentally competent to stand trial,but mentally competent to stand trial by a country mile. There are really somepiercing insights in those letters about the culture of capital defense lawyeringand the dynamic of adjudication that are really fascinating."
Kaczynskiasked to be allowed to fire his attorneys and replace them with Serra. The courtagreed that Serra could be approached-but Serra, oddly, now declined to getinvolved. Why?
"TonySerra was essentially scared away by Ted's trial lawyers," Mello believes,"who got very territorial and made it very clear, used very violent languagewith Serra, that they didn't want him anywhere near this case."
Things continuedto go against Kaczynski's wishes through December and into January '98, whenhe made a drastic move. "Trapped by his paternalistic attorneys and a judgeway out of his depth," Mello writes, "he tried to commit suicide." Sometimeduring the night of January 7, Theodore Kaczynski tried to kill himself inhis jail cell by asphyxiating himself with the elastic of his underpants.Kaczynski's attempted suicide seemed to many observers the final confirmationof his mental illness. I don't think so. Consider it from Kaczynski's pointof view. Under the circumstances, suicide was the only rational option opento him. He was utterly alone. He felt betrayed by his lawyers who kept himin the dark until it was too late for him to replace them or defend himselfat trial without a lawyer... For the next few months, he would have to sitin court and listen to his own lawyers build the case that he was mentallyill-and there was absolutely no way he could stop it. Exceptfor suicide.
On January22, Judge Burrell turned down a request to dismiss Kaczynski's law team so thathe could represent himself. Burrell-"in flat disregard for the law,"Mello opines-ruled that it was too late in the process for such a request, andthat in any case, Kaczynski's lawyers "had the legitimate power to raisea defense based on Kaczynski's alleged mental illness-regardless of Kaczynski'sadamant refusal to accept such a defense," Mello contends. It's a rulingMello finds "bizarre."
"Ifelt kind of bad about [writing] that," he tells me, "because he maderookie mistakes, the kind of mistakes inexperienced judges make. He had onlybeen on the bench for a few years. I think he might have had a year's criminalexperience... It is unfortunate, because a more seasoned judge would have nevermade the kind of errors that he did. That is why I am convinced that the prosecutorsagreed to the guilty pleas in the end, because they knew that Judge Burrellhad laced the record with so much error" that inevitably there would bean appeal and the guilty verdict "would have been thrown out because ofthe magnitude of the errors Judge Burrell had committed, even before the firstwitness was sworn."
Not longafter, "...seeing with crystal clarity that there was only one remainingway to prevent his relentless lawyers from portraying him as a madman, Kaczynskiexercised his final option. He pleaded guilty." Kaczynski wrote at thetime: "...I had only one way left to prevent my attorneys from using falseinformation to represent me to the world as insane: I agreed to plead guiltyto the charges in exchange for withdrawal of the prosecution's request for thedeath penalty... I am not afraid of the death penalty, and I agreed to thisbargain only to end the trial and thus prevent my attorneys from representingme as insane..."
He was sentencedto life without parole in May of '98. He wrote his first letter to Mello thatJune. "About six months before that, while his non-trial was sort of spinningout of control in Sacramento, I had written a couple of newspaper op-ed pieces.Somehow he heard about those, got a hold of my address at the law school andwrote to me, [asking me] to send him copies... He also asked me if I would advisehim on his legal options."
When I askMello what the "storms" in their relationship have been over, he responds,"We are in the middle of one right now. The first one was in the very beginning."In those articles, Mello had outlined some parallels he sees between the Unabomber'scase and that of John Brown, who also did a "mad" and violent thingin service of passionately held ideals, and who, unlike Kaczynski (so far),was executed for it. It's a thesis he develops in full in his book.
"Therewas one line in there where I wrote that I had been told that Kaczynski consideredJohn Brown sort of his historical antecedent and role model. [Which] turnedout to have been flat wrong. He wrote back a fairly snotty letter that begansomething like, 'Please, please, please, if you have any respect for the truthdon't say that I considered John Brown a role model. There is way too much ofthis sort of garbage written about me. I didn't know anything about John Brown.'"
They keptwriting, and soon "he basically offered to factcheck my book, which wasan offer I could not refuse. And he put an enormous amount of work into it.In fairness to him, it is a much more complete and a much better book becauseof his input."
Over theyear since, Mello counseled Kaczynski on the 32-page, handwritten appeal fora new trial-technically, a "2255" motion-that he submitted this pastApril. Basically, it argued that "his lawyers and his judge prevented himfrom exercising a series of constitutional options, and by closing off thoseoptions they left him with only one, which was to plead guilty."
The appealwas turned down at the end of May-not surprisingly, since, under a new streamlinedfederal court system, the judge who heard the appeal was Judge Burrell himself.
"It'snuts," Mello contends. "It's crazy. The only argument in favor ofit is judicial economy and efficiency: The same judge already knows the case,already knows the record."
Mello sayssometimes the judge grants the appeal, but it's "very rare... And partof Ted's 2255 motion included a motion to recuse Judge Burrell, which of courseBurrell denied. So now we are heading up to the Ninth Circuit [Court of Appeals],"where Kaczynski filed new papers last Thursday, June 17. There, his motion wouldgo before a three-judge panel not including Burrell.
What ultimatelydoes Kaczynski want out of this?
"WhatTed wants is invalidation of the guilty plea, and a trial. And what he wantsout of that, if he can't be acquitted, which he won't be, is the death sentence."
Really?Mello, the death penalty abolitionist, says he wrote Kaczynski arguing againstthat, and "he wrote a very powerful and eloquent letter back, and the gistof it was, 'I'd rather be executed than spend the rest of my life living inthis high-tech cage.' And I know some people will look at that and say that'syet another piece of evidence that he is crazy, but it doesn't seem crazy tome at all. This is a guy who, whatever he may have done, whatever else one maysay about him, words like privacy, freedom and autonomy aren't just words tohim, they are him.
"Itwould make me very sad if he were sentenced to death and executed," hecontinues. "I oppose capital punishment. I have spent most of my professionallife opposing capital punishment, and I don't think anyone ought to be executed.That is something that is very important to me, but it's not the only thingthat is very important to me. There are choices and decisions that a personwhose life is on the line ought to be allowed to make, as a basic part of humandignity and human autonomy. Whether to stake your life on a mental defect defenseis one of those."
For hispart, Mello says, "What I would like to see happen is Ted wins the 2255,the guilty pleas are thrown out and he gets his day in court, represented byTony Serra. He will almost certainly be found guilty. At the sentencing phasehe would-assisted by counsel, not controlled by counsel-present his caseagainst the death penalty... I would like to see the jury sentence him to lifein prison with no possibility of parole. And that probably sounds weird, becauseit would put him back right where he is now after spending an enormous amountof time and effort and money. But I believe firmly that that is what the lawrequires."
Kaczynskihas his own book coming out soon, called Truth versus Lies, also fromContext. (Publisher Beau Friedlander tells me he actually bought Kaczynski'sbook first, and Kaczynski told him about Mello's.) I was not shocked to hearthat Mello has read Truth versus Lies in manuscript.
"Thethesis is, 'You think because of what my mother and my brother have said toreporters on 60 Minutes, what my lawyer said in court, that I am crazy.You think that you know me? Well, you don't. The picture painted of me by myfamily and my lawyers is simply untrue.' It is a systematic, point by pointattempt at rebuttal of everything that people have said about him publicly inthe media. It's a fascinating historical artifact. He doesn't talk about thecrimes, he is coy about that. There is a line in there when he is talking abouthis brother David, who turned him in and comes in for special abuse and anger;he says that what David should have done was to come to Ted with his suspicionsthat he was the Unabomber, and if I were the Unabomber that would havehad a deterrent effect...
"Thepicture of him that was painted by his mother and brother is what bothers himthe most. It is at the heart of why he was so adamant about not letting hislawyers raise a mental defect defense. It reads like a legal brief-thesis, thisis what I am going to prove, long block quotes from his baby book and lettersand things that his mom had written. It's a fascinating family chronicle. Heis able to marshal a good bit of evidence that the main things his family saidabout his childhood and about his alleged mental illness are simply not true."
People willread The United States of America versus Theodore John Kaczynski andwonder how Mello can be aiding and abetting this killer. How can you sleep atnight?
"It'sa fair question," he concedes, "and one I have been asked not justabout the Kaczynski case but almost as long as I have been practicing law...I took an oath when I became a lawyer that I would never refuse to provide legalservices to someone in need of those services because of their unpopularity,because they're hated even. The old muckrakers had a slogan, 'Without fear orfavor,' and that's sort of how I have tried to live my life as a lawyer. That'sled me to represent people who have done hideous things."