Even as a judge is finding Ted Kaczynski's first round of appeals "wholly without merit," the Vermont law professor who helped him craft the approach is on the phone to me, confidently predicting that eventually the Unabomber will get his day in court. "I keep stopping myself from calling it a 'retrial,' because it is not really a retrial," Michael Mello says. "He never had a trial. It was the non-trial of the century."
In his new book The United States of America versus Theodore John Kaczynski (Context Books, 368 pages, $24.95) Mello, a former capital defense attorney who's taught at Vermont Law School since 1988, lays out with lawyerly clarity why he thinks the Unabomber was railroaded last year into copping a guilty plea rather than going to trial, and why he believes there are any number of constitutional grounds for granting him a new trial. It's sort of the lawyer's summation Kaczynski never had to the defense he never got to present.
Kaczynski first wrote Mello a year ago, shortly after he pleaded guilty and received four life sentences plus 30 years without possibility of parole. He's written Mello something like another 150 letters since. You'd think there'd be certain dangers inherent in being the Unabomber's pen pal?it has a certain ring, like "Chinaman's chance" or "snowball in hell"?but evidently Kaczynski has no access to the proper materials in jail.
When Mello tells me, "It's been a fairly intense correspondence, sometimes stormy?we are pretty different," I can't help feeling there're aspects to this of the traditional jailhouse romance, where someone on the outside starts a correspondence with some death row inmate that blossoms into a doomed romance. I've met some death row girlfriends before, talked to a few at length, and there's something similar about the ardor with which Mello says things like, "Just in terms of raw brainpan intelligence, he is one of the two or three brightest people I have ever encountered in all my travels. He is," he adds, tellingly, "frighteningly smart."
It stands to reason that Mello would be interested in the case. "I like taking on cases 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 Death and Against the Death Penalty. He's been involved in several death row appeals, including Ted Bundy's.
"We came within one vote of what would have been a fairly miraculous result in the Ted Bundy case," he tells me. "In the U.S. Supreme Court, the bad old kill-'em-all U.S. Supreme Court, we came within one vote of getting an indefinite stay the night before he was executed."
From the day Kaczynski was arrested in April '96, most people (like Mello) have been convinced he is the Unabomber, although some conspiracists (like my pal Knipfel) remain just as convinced he's not. (Kaczynski's plea-bargained confession falls short of an unequivocal admission that he's the Unabomber.) When the 35,000-word Unabomber manifesto appeared the year before, it was generally seen as the ramblings of a madman, yet to some greens, luddites and technophobes, including Mello and Kirkpatrick Sale, it made perfect sense.
As Mello interprets 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 of his conflict with his attorneys. By the time he'd been brought to Sacramento to stand trial in the federal courthouse there, everyone around Kaczynski?his family, his counsel, the media?had clearly decided he was crazy. But the evidence, including all the bombings, is thin, according to Mello.
There was not much terribly traumatic in Kaczynski's family background. His father Ted Sr. did commit suicide when he found out he had cancer, but that wasn't until 1990. Ted Jr. was a math wiz who got into Harvard in 1958 (where he participated as 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 university courses in mathematics and wrote a couple of brilliant papers before "dropping out" in 1969, at the age of 27, and moving to the Montana hills, near the small 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 killed three people and injured 23 others.
None of which makes him mentally ill, according to Mello.
"Personally, I admire Theodore Kaczynski for his refusal to portray the bombings as the products of a bad childhood and adolescence," he writes. "The seventeen-year bombing campaign was methodical. The Unabomber eluded the largest and most expensive manhunt in American history." (Indeed, as is often noted, the FBI would still be looking for him had his own brother not turned him in.) "And he took 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 mental illness dubious."
Mello, who moved to rural Vermont years ago, finds it especially risible that Kaczynski's life of solitude in the woods automatically means he's nuts.
"If he is a nut case," he says to me, "probably half the population of Vermont are also nut cases on the same evidence, and virtually everyone I have spoken with in Lincoln, MT. I mean, that's how people live there."
Still, I say, the man went on a national campaign of killing and maiming innocent people to illustrate his luddite principles. There is the obvious supposition that you'd have to be crazy to do that.
"Absolutely," Mello responds, "and that's an aspect of the case that in some respects is the most fascinating to me. Here you've got a guy that just by virtue of the way he went about committing the crimes didn't seem crazy. The crimes themselves are 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 did what he did. And yet as soon as he was arrested, the moment that first photograph of 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 and said he's crazy, he has got to be crazy.
"There is 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 his ideas or, really, to him. The alternative hypothesis is, I think, much more interesting, but much more frightening: that here is a guy who was incredibly sane, incredibly bright, who devoted the bulk of his adult life to handcrafting and sending bombs throughout the country. The image of the sane bomber is much more frightening than the image of the mad bomber... It's what people expected to see, and on some level what they needed to see."
Only five days after Kaczynski's arrest, the high-profile California defense attorney Tony Serra?the ponytailed lefty played by James Woods in True Believer?wrote Kaczynski and offered to defend him pro bono, noting that the Unabomber's "ideology would be the crux of the defense (not insanity; not a 'whodunit')." To his later regret, Kaczynski stayed with his court-appointed legal team.
"Both Kaczynski and his lawyers seemed to recognize that he would almost certainly be found guilty of murder in the first phase of his bifurcated capital trial," Mello writes. "The battleground in the Unabomber case was over the penalty phase of the trial. This was when evidence in support of a 'necessity defense' (based on the ideological belief that his actions were necessary per arguments contained in the manifesto) would have been admissible..."
But that argument wasn't going to be made. Kaczynski was evidently the last person involved to learn that his lawyers "intended to base their defense on claims that their client was crazy," Mello writes. It was November '97, and jury selection had already begun when Kaczynski, on one of his first actual appearances in court, was visibly stunned to learn that his lawyers had made a psychiatric report on him public without informing him. "Kaczynski's surprise appeared to be genuine," Mello writes. "He slammed a pen down on the defense table, and it skittered across the table." And in Mello's opinion, "His anger was warranted."
Kaczynski wrote a detailed letter to the presiding judge, Garland E. Burrell, explaining that his lawyers had "deceived" him. "I also discussed with my attorneys their future plans for my case," he wrote, "but I am not certain that their plans are in my best interest as I interpret it, and I found their reasoning in support of their plans unconvincing. I therefore feel strongly the need for legal advice from some source outside my present defense team..."
Kaczynski's letters to Judge Burrell appear in the public record for the first time in Mello's book. Arguing his case against his lawyers with clarity and logic, they do go a long way toward refuting the image of the man as a babbling lunatic.
"They are the single best piece of evidence about what was going on," Mello says to me. "Judge Burrell, now I don't know if this was his intent, but it certainly had the effect of giving the daily press a very warped view of what was going on between Ted and his lawyers. The letters for me really proved for me 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 some piercing insights in those letters about the culture of capital defense lawyering and the dynamic of adjudication that are really fascinating."
Kaczynski asked to be allowed to fire his attorneys and replace them with Serra. The court agreed that Serra could be approached?but Serra, oddly, now declined to get involved. Why?
"Tony Serra was essentially scared away by Ted's trial lawyers," Mello believes, "who got very territorial and made it very clear, used very violent language with Serra, that they didn't want him anywhere near this case."
Things continued to go against Kaczynski's wishes through December and into January '98, when he made a drastic move. "Trapped by his paternalistic attorneys and a judge way out of his depth," Mello writes, "he tried to commit suicide." Sometime during the night of January 7, Theodore Kaczynski tried to kill himself in his jail cell by asphyxiating himself with the elastic of his underpants. Kaczynski's attempted suicide seemed to many observers the final confirmation of his mental illness. I don't think so. Consider it from Kaczynski's point of view. Under the circumstances, suicide was the only rational option open to him. He was utterly alone. He felt betrayed by his lawyers who kept him in the dark until it was too late for him to replace them or defend himself at trial without a lawyer... For the next few months, he would have to sit in court and listen to his own lawyers build the case that he was mentally ill?and there was absolutely no way he could stop it. Except for suicide.
On January 22, Judge Burrell turned down a request to dismiss Kaczynski's law team so that he 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, and that in any case, Kaczynski's lawyers "had the legitimate power to raise a defense based on Kaczynski's alleged mental illness?regardless of Kaczynski's adamant refusal to accept such a defense," Mello contends. It's a ruling Mello finds "bizarre."
"I felt kind of bad about [writing] that," he tells me, "because he made rookie mistakes, the kind of mistakes inexperienced judges make. He had only been on the bench for a few years. I think he might have had a year's criminal experience... It is unfortunate, because a more seasoned judge would have never made the kind of errors that he did. That is why I am convinced that the prosecutors agreed to the guilty pleas in the end, because they knew that Judge Burrell had laced the record with so much error" that inevitably there would be an appeal and the guilty verdict "would have been thrown out because of the magnitude of the errors Judge Burrell had committed, even before the first witness was sworn."
Not long after, "...seeing with crystal clarity that there was only one remaining way to prevent his relentless lawyers from portraying him as a madman, Kaczynski exercised his final option. He pleaded guilty." Kaczynski wrote at the time: "...I had only one way left to prevent my attorneys from using false information to represent me to the world as insane: I agreed to plead guilty to the charges in exchange for withdrawal of the prosecution's request for the death penalty... I am not afraid of the death penalty, and I agreed to this bargain only to end the trial and thus prevent my attorneys from representing me as insane..."
He was sentenced to life without parole in May of '98. He wrote his first letter to Mello that June. "About six months before that, while his non-trial was sort of spinning out 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 and wrote to me, [asking me] to send him copies... He also asked me if I would advise him on his legal options."
When I ask Mello 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's case and that of John Brown, who also did a "mad" and violent thing in 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.
"There was one line in there where I wrote that I had been told that Kaczynski considered John Brown sort of his historical antecedent and role model. [Which] turned out to have been flat wrong. He wrote back a fairly snotty letter that began something like, 'Please, please, please, if you have any respect for the truth don't say that I considered John Brown a role model. There is way too much of this sort of garbage written about me. I didn't know anything about John Brown.'"
They kept writing, and soon "he basically offered to factcheck my book, which was an 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 because of his input."
Over the year since, Mello counseled Kaczynski on the 32-page, handwritten appeal for a new trial?technically, a "2255" motion?that he submitted this past April. Basically, it argued that "his lawyers and his judge prevented him from exercising a series of constitutional options, and by closing off those options they left him with only one, which was to plead guilty."
The appeal was turned down at the end of May?not surprisingly, since, under a new streamlined federal court system, the judge who heard the appeal was Judge Burrell himself.
"It's nuts," Mello contends. "It's crazy. The only argument in favor of it is judicial economy and efficiency: The same judge already knows the case, already knows the record."
Mello says sometimes the judge grants the appeal, but it's "very rare... And part of Ted's 2255 motion included a motion to recuse Judge Burrell, which of course Burrell 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 would go before a three-judge panel not including Burrell.
What ultimately does Kaczynski want out of this?
"What Ted wants is invalidation of the guilty plea, and a trial. And what he wants out 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 against that, and "he wrote a very powerful and eloquent letter back, and the gist of it was, 'I'd rather be executed than spend the rest of my life living in this high-tech cage.' And I know some people will look at that and say that's yet another piece of evidence that he is crazy, but it doesn't seem crazy to me at all. This is a guy who, whatever he may have done, whatever else one may say about him, words like privacy, freedom and autonomy aren't just words to him, they are him.
"It would make me very sad if he were sentenced to death and executed," he continues. "I oppose capital punishment. I have spent most of my professional life 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 thing that is very important to me. There are choices and decisions that a person whose life is on the line ought to be allowed to make, as a basic part of human dignity and human autonomy. Whether to stake your life on a mental defect defense is one of those."
For his part, 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 by Tony Serra. He will almost certainly be found guilty. At the sentencing phase he would?assisted by counsel, not controlled by counsel?present his case against the death penalty... I would like to see the jury sentence him to life in prison with no possibility of parole. And that probably sounds weird, because it would put him back right where he is now after spending an enormous amount of time and effort and money. But I believe firmly that that is what the law requires."
Kaczynski has his own book coming out soon, called Truth versus Lies, also from Context. (Publisher Beau Friedlander tells me he actually bought Kaczynski's book first, and Kaczynski told him about Mello's.) I was not shocked to hear that Mello has read Truth versus Lies in manuscript.
"The thesis is, 'You think because of what my mother and my brother have said to reporters 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 my family and my lawyers is simply untrue.' It is a systematic, point by point attempt at rebuttal of everything that people have said about him publicly in the media. It's a fascinating historical artifact. He doesn't talk about the crimes, he is coy about that. There is a line in there when he is talking about his 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 suspicions that he was the Unabomber, and if I were the Unabomber that would have had a deterrent effect...
"The picture of him that was painted by his mother and brother is what bothers him the most. It is at the heart of why he was so adamant about not letting his lawyers raise a mental defect defense. It reads like a legal brief-thesis, this is what I am going to prove, long block quotes from his baby book and letters and things that his mom had written. It's a fascinating family chronicle. He is able to marshal a good bit of evidence that the main things his family said about his childhood and about his alleged mental illness are simply not true."
People will read The United States of America versus Theodore John Kaczynski and wonder how Mello can be aiding and abetting this killer. How can you sleep at night?
"It's a fair question," he concedes, "and one I have been asked not just about 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 legal services to someone in need of those services because of their unpopularity, because they're hated even. The old muckrakers had a slogan, 'Without fear or favor,' and that's sort of how I have tried to live my life as a lawyer. That's led me to represent people who have done hideous things."