Sale of the century

Last week, a Sacramento federal-court judge issued an order that will authorize a massive online auction of true-crime memorabilia from one of the nation’s most high-profile criminal cases in history. Buyers worldwide will be able to bid on the original writings of Theodore John Kaczynski—including on his legendary Industrial Society and Its Future, better known as The Unabomber Manifesto.

It was 1998 when Kaczynski pleaded guilty in the old federal courthouse on Capitol Mall to 13 criminal charges stemming from bombing attacks that killed three and injured two. The former UC Berkeley professor’s personal property, seized by the FBI from his Montana cabin in 1996, consists of about 20,000 double-sided, handwritten notebook pages, including several drafts of the manifesto, and more than 100 personal items and books.

The writings are chilling, according to a government court document describing their content.

“In those pages, the Defendant writes about his urges to kill; his acts of vandalism and law-breaking, including his use of firearms to damage property, his victims, how he selected them, how he intended to kill them, his response of the injuries he caused his victims and their families, other intended victims, and an almost stream-of-consciousness narrative of all other persons and events in his life, as he perceived them,” wrote assistant U.S. attorney Ana Maria Martel.

U.S. District Judge Garland E. Burrell held a hearing at the end of last month at which Kaczynski’s attorney, John Balazs, and Martel argued over what property should be sold; what property should be returned to Kaczynski; and what property, mainly the writings, should be donated to a library at the University of Michigan for use by researchers, historians and the public.

The tug-of-war over Kaczynski’s possessions began more than three years ago when he filed a court motion asking that his property be sold and the proceeds applied to his $15 million restitution debt or that it be returned to him and that his papers be sent to the university library. Under the terms of his plea bargain, Kaczynski agreed that his seized possessions that had value could be sold by the government. Under criminal-law procedure, Kaczynski’s property that was worthless would be returned to him or anyone he designated. In March 2004, Burrell denied Kaczynski’s request to return the property, stating, in essence, that the government was entitled to do whatever it wanted with the material.

Balazs appealed Burrell’s ruling to the 9th Circuit Court of Appeals, and the higher court decreed that Burrell’s interpretation of the law was incorrect. “A defendant is indeed presumed to have a right to the return of property once the property is no longer needed as evidence, and the government has the burden of showing that it has a legitimate reason to retain the property,” the 9th Circuit said in its July 2005 ruling.

Since proceeds of the sale of Kaczynski’s property would go to the crime victims or their families, the court also chastised Martel and the government for ignoring their rights by refusing to sell the property. The court said that the government’s plan to essentially mothball the property indefinitely was unacceptable. The three-judge 9th Circuit panel that decided the case was so displeased with the government’s actions that it appointed a separate, outside attorney to represent the interests of the victims in the dispute.

The court then sent the case back to Burrell with instructions to come up with a plan to sell the property and maximize the monetary return to the victims, and return any worthless or negligibly valuable property to Kaczynski.

Balazs also had argued that the government didn’t have a right to sell Kaczynski’s writings because they were protected by the First Amendment right to communicate ideas and information. The American Civil Liberties Union joined with the Freedom to Read Foundation, a not-for-profit organization established by the American Library Association to promote and defend First Amendment rights, and the Society of American Archivists, which serves as an advocate for archivists to help ensure the identification, preservation and use of the nation’s historical record, to submit a friend-of-the-court brief in support of Kaczynski’s First Amendment rights and intention to donate his papers to the library. In its ruling, the 9th Circuit did not consider, affirm or deny the First Amendment arguments.

But the First Amendment argument was back in the mix in Burrell’s courtroom last month when he reconsidered the case and the government’s new plan to sell or return the property.

After finally bringing the victims into the loop, Martel proposed putting most of the writings up for auction and applying the proceeds to the restitution fund. The attorney for the victims said that before the writings were sold, the victims wanted their names redacted from any place they appear in the papers and that any documents that included diagrams or recipes for making bombs should be excluded from the sale. Balazs contended that his client’s First Amendment rights required that the documents be returned to Kaczynski, unaltered, so he could donate them to the library.

“We’re trying to get the writings to a university library so that researchers, historians and the public can go review them,” he told SN&R. Balazs also said that some law-enforcement officials believe that writings like Kaczynski’s should be made public and available for study, such as by criminal profilers, to assist in stopping similar criminal activity. In a court document, Balazs quoted from a 1991 9th Circuit case that said “The fact that the majority of a community may find an idea politically, intellectually, or morally offensive does not shield the idea from first amendment protection.”

Martel disagreed that the First Amendment was relevant, and after having been dressed down by the 9th Circuit for her indifference to the victims, she became a passionate victims’-rights advocate. “Why is not the main focus of society the rights of those victims? Why is that not the main focus of your article, of the ACLU and of all this litigation?” she asked SN&R. “I have yet to see a single article that talks about the victims’ rights.”

Last Thursday, Burrell ordered that Kaczynski be provided unaltered copies of all of his writings and that the originals, after being redacted in accordance with the victims’ requests, be sold along with the rest of his property by the U.S. marshal via online auction. Balazs said that Burrell’s latest order does not follow the instructions he was given by the 9th Circuit and that he probably will file an appeal after talking to Kaczynski. Meanwhile, he will file for a protective order to prevent the government from selling any of the property while the appeal is pending.

Balazs had asked that his client be able to retain the property and publishing rights to all his writings, even if the papers are sold. If those rights were retained by Kaczynski, anyone publishing the writings would generally have to pay a royalty, and that payment automatically would go to the victims’ restitution fund. Balazs said he would raise this issue again in the appeal.