dissenting:
I disagree strongly with the majority’s decision and regretfully must dissent.
This case involves the right of a seriously disturbed individual to insist upon representing himself at trial, even when the end result is likely to be his execution. It presents a direct clash between the right of self-representation and the state’s obligation to provide a fair trial to criminal defendants, especially capital defendants. It raises the question whether we should execute emotionally disturbed people whose crimes may be the product of mental disease or defect and, if so, whether they should be allowed.,to forego defenses or appeals that might prevent their execution. In fact, it raises, albeit indirectly, the question whether anyone should be permitted to waive his right to contest his execution by the state if that execution might be unlawful.
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: 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 those perverse theories to a jury as his only defense in a capital case — a defense that obviously has no legal merit and certainly has no chance of success? What should the response be when he also insists on serving as his own lawyer, not for the purpose of pursuing a proper legal defense, but in order to ensure that no evidence will be presented that exposes the nature and extent of his mental problems? The district judge faced these questions and, understandably, blinked. He quite clearly did so out of compassionate and humanitarian concerns. Nevertheless, in denying Kaezynski’s request to represent himself, the district court unquestionably failed to follow the law. Notwithstanding the majority’s arguments in defense of the district judge’s actions, they simply cannot be supported on the ground he offered, or on any other ground available under the law as it now stands.
Whether Theodore Kaczynski suffers from severe mental illness, and which of the various psychiatric diagnoses that have been put forth is the most accurate, are questions that we cannot answer here. However, it is not now, nor has it ever been, disputed that under the governing legal standards, he was competent to waive his right to the assistance of counsel.1 Therefore, whatever we may think about the wisdom of his choice, or of the doctrine *1120that affords a defendant like Kaczynski the right to make that choice, he was entitled, under the law as enunciated by the Supreme Court, to represent himself at trial.2 A review of the transcript makes startlingly clear that, under the law that controls our decision, the denial of Kaczynski’s request violated his Sixth Amendment rights. There is simply no basis for the district court’s assertion that the request was made in bad faith or for purposes of delay. Because, as the majority acknowledges, the erroneous denial of a self-representation request renders a subsequent guilty plea involuntary as a matter of law,3 I must respectfully dissent from the majority’s holding that Kaczynski’s plea was voluntary.4
I.
By the time of his arrest in a remote Montana cabin on April 3, 1996, Ted Kaczynski had become one of the most notorious and wanted criminals in our nation’s history. For nearly two decades, beginning in 1978, the “Unabomber” — so designated by the FBI when his primary targets appeared to be universities and airlines — had carried out a bizarre ideological campaign of mail-bomb terror aimed at the “industrial-technological system” and its principal adherents: computer scientists, geneticists, behavioral psychologists, and public-relations execu-fives. Three men — -Hugh Scrutton, Gilbert Murray, and Thomas Mosser — were killed by Kaczynski’s devices, and many other people were injured, some severely.
In 1995, Kaczynski made what has been aptly described as “the most extraordinary manuscript submission in the history of publishing.”5 Kaczynski proposed to halt all his killings on the condition that major American newspapers agree to publish his manifesto, “Industrial Society and Its Future.” The New York Times and Washington Post accepted the offer, and that most unusual document, with its “dream ... of a green and pleasant land liberated from the curse of technological proliferation,” 6 revealed to the world the utopian vision that had inspired Kaczynski’s cruel and inhumane acts. Among the readers of the manifesto was David Kaczynski, who came to suspect that its author was his brother Ted, a former mathematics professor at Berkeley who had isolated himself from society some quarter-century before. David very reluctantly resolved to inform the FBI of his suspicions, although he sought assurances that the government would not seek the death penalty and expressed his strong view that his brother was mentally ill. On the basis of information provided by David, the FBI arrested Kaczynski and, despite David’s anguished opposition, the government gave notice of its intent to seek the death penalty.7
*1121Following Kaczynski s indictment, Federal Defenders Quin Denvir and Judy Clarke were appointed to represent him. Attorney Gary Sowards joined the defense team some time later. All three are superb attorneys, and Kaezynski could not have had more able legal representatives. From the outset, however, Kaezynski made clear that a defense based on mental illness would be unacceptable to him, and his bitter opposition to the only defense that his lawyers believed might save his life created acute tension between counsel and client. That tension persisted, and periodically erupted, throughout the many months leading up to Kaczynski’s guilty plea, and the dispute was not definitively resolved until Judge Burrell ruled on January 7, 1998, that Kaczynski’s attorneys could present mental-health evidence even over his vehement objection. It was that ruling, Kaezynski maintains — and the record indisputably reflects — that compelled him to request self-representation the very next day as the only means of preventing his portrayal as a “grotesque and repellent lunatic.” In doing so, Kaezynski was merely exercising the right that Judge Burrell had recognized he possessed the day before, immediately after he issued his controversial ruling that counsel, not client, would control the presentation of mental-health evidence.8
Whether Kaczynski’s self-representation request was made in good faith, as Judge Burrell repeatedly stated on January 8, or whether it was a “deliberate attempt to manipulate the trial process for the purpose of causing delay,” as Judge Burrell subsequently held when explaining his reason for denying the request, is the issue before us. Although the answer is absolutely clear from the record, it is helpful to set forth a number of colloquies that demonstrate that everyone involved — including counsel for both sides and the district judge — was fully aware that Kaczynski’s request was made in good faith and not for purposes of delay. The record reveals that Kaczynksi’s aversion to a mental-health defense was, indisputably, heartfelt, and that no one — least of all Judge Bur-rell — ever questioned Kaczynski’s sincerity prior to the time the judge commenced formulating his January 22 ruling.
II.
Kaezynski contends that he first learned on November 25, 1997 that his attorneys intended to present evidence that he suffered from major mental illness, specifically schizophrenia.9 On that day, in open court, Kaezynski discovered that numerous psychiatric reports, the contents of which he had been assured would be privileged, had been released to the public without his consent. Although it is true, as the majority notes, that Kaezynski had previously been aware that his attorneys were planning to introduce some evidence that he might suffer from neurological problems— he had consented to the filing of a notice under Rule 12.2(b) of the Federal Rules of Criminal Procedure to leave open the possibility of introducing expert testimony on that point — he nevertheless believed that he had the right to prevent the mental-health experts who had examined him from testifying at his trial.10
*1122Kaezynski cites to dozens of notes that he wrote to his attorneys in the weeks and months prior to November 25, 1997, in which he expressed, in the strongest terms, his unwillingness to present a mental-health defense at trial. For example, in June of 1997 he wrote: “I categorically refuse to use a mental-status defense.” In October, he explained in a note to So-wards: “I am bitterly opposed to the development of a science of the human mind.... ” Kaezynski asserts that he was led to believe that “the defense would argue that the offenses [he] was alleged to have committed were a kind of self-defense against the ‘intrusion’ of industrial civilization into the wilderness of Western Montana.” He submitted to psychiatric evaluations, he contends, only after receiving “false promises and intense pressure” from his attorneys, who understood that his primary concern was to “refute the image of him as mentally ill that was projected by the media with the help of his mother and brother.” In May or June of 1997, Kae-zynski wrote to his attorneys: “I would like to get reliable psychological data about myself before the public in order to counteract all this silly stuff about me that the media have been pushing.” Even when Kaezynski began to suspect that his attorneys intended to use some mental-health evidence and testimony at his trial, he “had no idea they intended to portray him as suffering from major mental illness,” and he still believed that all such evidence was privileged and could not be released without his approval.
When, on November 25,1997, Kaezynski learned that defense experts had diagnosed him as suffering from paranoid schizophrenia, and that the results of those examinations had been released to the government and to the public, he felt “shock and dismay.” In the courtroom on that day, Kaezynski wrote to Denvir and Clarke:
Did Gary [Sowards] give that info to the prosecutors with your knowledge and consent? If you all assume responsibility for revealing what is being revealed now, then this is the end between us. I will not work with you guys any more, because I can’t trust you....
This ease is developing in a direction that I certainly did not expect. I was lead [sic] to believe that this was not really a “mental health” kind of defense, but that you would try to show that my actions were a kind of “self defense.” Gary [Sowards] gave me the impression that we would use only Dr. Kriegler, and would use her only to show I would not “do it again.”
In the weeks that followed, Kaezynski also wrote three separate letters to Judge Bur-rell in which he explained his conflict with his attorneys and sought replacement of counsel. However, Denvir and Clarke prevailed upon him to delay bringing the conflict to the attention of the judge while they were engaged in negotiations with the Justice Department aimed at allowing him to plead guilty conditionally while preserving his suppression issues for appeal.11 When those negotiations failed, Denvir and Clarke agreed to deliver Kaezynski’s letters to Judge Burrell, and they did so on December 18.
The letters reveal the depth of the rift that had developed between Kaezynski and his attorneys regarding the issue of mental-health evidence. The first letter, dated December 1, 1997 begins: “Last Tuesday, November 25, I unexpectedly learned for the first time in this courtroom that my attorneys had deceived me.” Kaezynski explained that he had been assured by his attorneys that the results of psychiatric examinations that he reluctantly agreed to *1123undergo — and even the fact that he had been examined at all- — -would be protected by attorney-client privilege and would not be disclosed absent his approval. Moreover, he had been “led to believe that [he] would not be portrayed as mentally ill without [his] consent.” Kaczynski insisted that he had initially been misled as to the nature of a “12.2b defense” — he had been assured that it was “only a legal device to enable a certain mental-health professional [Dr. Kriegler] whom I know and like to tell the jury what kind of person I am.” He was never informed that the results of his psychiatric examinations would be released.
In a letter dated December 18, Kaczyn-ski offered his reasons for objecting to a defense based on mental-health evidence:
I do not believe that science has any business probing the workings of the human mind, and ... my personal ideology and that of the mental-health professions are mutually antagonistic.... [I]t is humiliating to have one’s mind probed by a person whose ideology and values are alien to one’s own.... [Den-vir, Clarke, and Sowards] caleulatedly deceived me in order to get me to reveal my private thoughts, and then without warning they made accessible to the public the cold and heartless assessments of their experts.... To me this was a stunning blow ... [and] the worst experience I ever underwent in my life.... I would rather die, or suffer prolonged physical torture, than have the 12.2b defense imposed on me in this way by my present attorneys.
Previous consent to such a defense was, Kaczynski contended, “meaningless because my attorneys misled me as to what that defense involved.”
Kaczynski proposed three possible solutions: that his attorneys be prevented from using a “12.2b” defense; that he be permitted to represent himself, preferably with appointed counsel to assist him; or that new counsel be appointed for him. After receiving Kaczynski’s letters, Judge Burrell ordered an ex parte hearing, to be held on December 22, during which Kac-zynski’s conflict with counsel would be explored. At that hearing, Kaczynski agreed to an accommodation, which he characterizes as “tentative,” 12 according to which Denvir and Clarke would withdraw the 12.2(b) notice (thereby precluding introduction of expert testimony about Kaczyn-ski’s mental state during the guilt phase of the trial), but would be permitted to introduce mental-state evidence in the penalty phase. Kaczynski insists that his understanding at the time was that the agreement would preclude the presentation of any mental-state evidence during the guilt phase of the trial, even though the rule (the text of which Kaczynski contends he never saw) applies only to expert testimony. Kaczynski’s misunderstanding was reasonable; in fact, Judge Burrell shared it, as he later acknowledged:
I agree with something Mr. Kaczynski said. He indicated that he assumed, when counsel with [sic] withdrew the 12.2(b) defense, that all such defenses would be withdrawn. That was my assumption too. But I recognize, as Mr. Kaczynski recognizes, that that’s technically in error. But I felt the same way he felt.... And then later I thought since Mr. Kaczynski is not learned in the law, and I don’t mean that disrespectfully, not to the extent that I hope I am, I assume that’ he would not realize that the mental status defense was not necessarily fully withdrawn with the 12.2(b) *1124notice being withdrawn.... I understand what Mr. Kaczynski was telling me, because I thought the same thing he thought.13
Immediately following the December 22 agreement, the parties exercised their peremptory strikes and the jury was selected. Kaczynski maintains that from December 22 through January 4, he believed that (1) his attorneys would not be permitted to introduce any mental-state evidence during the guilt phase of his trial, and (2) attorney J. Tony Serra — who had written to Kaczynski and offered to represent him without employing a mental-health defense but had subsequently withdrawn the offer of representation — was unwilling to serve as his counsel at trial. Kaczynski first learned of his attorneys’ intention to present non-expert mental-state testimony at the guilt phase of his trial on the evening of January 4, 1998 — the day before trial was to begin. Denvir and Clarke visited him at the jail that evening and read him their opening statement. Kaczynski declares that he was “horrified to learn that his attorneys planned to present extensive nonexpert evidence of severe mental illness in the guilt phase.”
On the morning of January 5, Kaczynski informed Judge Burrell of his continuing conflict with counsel, and the judge appointed attorney Kevin Clymo as “conflicts counsel” to represent Kaczynski’s interests. Proceedings were postponed until January 7. On that day, Judge Burrell ruled that Kaczynski’s counsel could present mental-state testimony even if Kaczyn-ski objected. Judge Burrell then offered Kaczynski the option of self-representation, warning: “I don’t advise it, but if you want to, I’ve got to give you certain rights.” At the time of the court’s offer, Kaczynski declined to accept it, explaining that he was “too tired ... [to] take on such a difficult task,” and that he did not feel “up to taking that challenge at the moment.” By then, according to his section 2255 motion, “Kaczynski was already contemplating suicide as the most probable way out of this cul-de-sac.” Later that same day, the court was informed that Tony Serra would, after all, be willing to represent Kaczynski. Kaczynski promptly requested a change of counsel, but Judge Burrell denied the request on the ground that substituting counsel would require a significant delay before trial could commence.14
On January 8, Kaczynski decided to accept the court’s offer of the previous day and informed the court that he wished to represent himself.15 Kaczynski’s counsel conveyed his request to the court with great reluctance:
Your Honor, if I may address the Court, Mr. Kaczynski had a request that we alert the Court to, on his behalf — it is his request that he be permitted to proceed in this case as his own counsel. This is a very difficult position for him. He believes that he has no choice but to go forward as his own lawyer. It is a very heartfelt reaction, I believe, to the presentation of a mental illness defense, a situation in which he simply cannot endure.
Kaczynski’s attorneys made clear that he was not seeking any delay in proceedings and that he was prepared to proceed pro se immediately. On that day, as before, Judge Burrell did not intimate that he perceived any bad-faith motive on Kaczyn-*1125ski’s part. To the contrary, he made numerous comments demonstrating his belief that Kaczynski sought self-representation solely because of the conflict over control of the mental-health defense — in other words, solely because of his desire to prevent the introduction of evidence regarding his mental health. Each of the following statements was made on January 8, 1998, immediately following Kaczynski’s assertion of his right to act as his own counsel:
THE COURT: And there’s even another issue, which I think is perhaps the key issue. That issue involves who controls the mental status defense. It is my opinion that that’s what this is all about.
[GOVERNMENT]: I think the issue today, when the defendant says he wants to represent himself, is the question of Faretta and—
THE COURT: He’s only saying that, in my opinion, because he wants to control the mental status defense.
THE COURT:.... In my opinion, the defendant would not be asking to represent himself if he was in control of the mental status defense. That’s my opinion.
THE COURT:.... I think the crux of the question centers on who controls [the mental status] defense. And I believe that Mr. Kaczynski has expressed the interest of representing himself because I told him he doesn’t control that defense.
No one disputes that Kaczynski had a constitutional right to represent himself if, as the court plainly recognized, the assertion of his right was motivated by the dispute over the mental-state defense. It is therefore no surprise that Judge Bur-rell, who repeatedly acknowledged that Kaczynski’s request was induced by a genuine aversion to the presentation of mental-health evidence, signaled his inclination to grant the request:
[M]y tentative opinion is that if he’s ready to go now, I’m inclined to let him do that; if we’ve reached this point, reached that point, assuming he’s competent. ... [I]f I ultimately decide Mr. Kaczynski’s competent, which, frankly, that’s my view at this very moment— and I mean competent to stand trial — if I decide that, knowing that he only wants to represent himself because of his dispute with trial counsel over the assertion of the mental status defense— knowing that, I would probably have to allow him to do that, if he’s competent.
In fact, when the government tried to advise the court that it strongly believed that Kaczynski had the right to represent himself, the court reiterated its agreement with that view, subject only to the question of competency. The court repeatedly asserted that the key to the self-representation issue was whether Kaczynski was “competent,” and did not even hint at the possibility of a bad-faith motive. Ultimately, Kaczynski’s own attorneys called their client’s competency into question, expressing the view that his efforts to waive what appeared to be his only meritorious defense attested to the need for a competency evaluation. At that point, all counsel (including the court-appointed conflicts counsel) and Judge Burrell agreed that Kaczynski should undergo a psychiatric evaluation to determine his competency to exercise his right to self-representation, and the next day the judge issued an order for the necessary medical examinations.
The competency evaluation would, of course, have been altogether unnecessary had Judge Burrell believed on January 8 that Kaczynski’s request to represent himself was made in bad faith. The judge could simply have denied the request on that ground. Nevertheless, two weeks later, after Kaczynski had been determined to be competent by a government psychiatrist, Judge Burrell denied the self-representation request, characterizing it — in a manner that directly contradicted the numerous statements he had made at the prior proceedings — as a “deliberate attempt to manipulate the trial process for the purpose of causing delay.”
It stretches the imagination to believe that at some point during the two weeks in *1126which Kaczynski was undergoing mental competency tests, initially suggested by Judge Burrell, the judge suddenly came to believe that he had been hoodwinked by Kaczynski from the start. Rather, as some of his later comments on the subject indicate (e.g., the trial would become a “suicide forum”), Judge Burrell became more and more appalled at the grotesque and one-sided spectacle over which he would be forced to preside were Kaczynski to conduct his own defense. He understandably developed a strong desire to avoid the chaos, legal and otherwise, that would have ensued had Kaczynski been allowed to present his twisted theories to a jury as his defense to a capital murder charge. Not only would such a trial have had a circus atmosphere but, in light of Kaczynski’s aversion to mitigating evidence, it would in all likelihood have resulted in his execution. It is not difficult to appreciate, therefore, how the denial of Kaczynski’s request for self-representation — regardless of the unquestionable legitimacy of the request — must have seemed the lesser evil.
III.
It is impossible to read the transcripts of the proceedings without being struck by Judge Burrell’s exceptional patience, sound judgment, and sincere commitment to protecting Kaczynski’s right to a fair trial — and his life. Judge Burrell’s commendable concern about preventing Kac-zynski from pursuing a strategy that would almost certainly result in his execution is reflected most dramatically in statements made in connection with the judge’s January 22, 1998 oral ruling denying Kac-zynski’s self-representation request. The judge observed that by abandoning a mental-health defense and proceeding as his own counsel, Kaczynski would be foregoing “the only defense that is likely to prevent his conviction and execution.... That ill-advised objective is counterproductive to the justice sought to be served through the adversary judicial system, which is designed to allow a jury to determine the merits of the defense he seeks to abandon.” Judge Burrell was unwilling to permit Kaczynski to use the criminal justice system “as an instrument of self-destruction,” explaining that “a contrary ruling risks impugning the integrity of our criminal justice system, since it would simply serve as a suicide forum for a criminal defendant.” He contended, in effect, that society had an interest in preventing capital defendants from using the instrument of the state to commit suicide. As legal support for his reasoning, Judge Burrell cited Chief Justice Burger’s dissenting opinion in Faretta.16
Nevertheless, Judge Burrell did not base his decision denying Kaczynski’s Far-etta rights on his views of the role of the criminal justice system in capital cases; he was not free to do so under controlling law.17 Indeed, Judge Burrell did not sug*1127gest that Kaczynski could be deprived of the right to represent himself if his desire for self-representation were sincere. Such a ruling would have conflicted with Supreme Court precedent holding that a defendant who is competent has the right to conduct his own defense. Because Kac-zynski’s psychiatric evaluation resulted in a declaration that he was competent, the only available basis for denying his request was to find that it was not made in good faith — but rather for the purpose of delay — even though the record squarely refuted that conclusion.18
There can be no doubt that Judge Bur-rell’s admirable desire to prevent an un-counseled, and seriously disturbed, defendant from confronting, on his own, the “prosecutorial forces of organized society” 19 — in this case, three experienced federal prosecutors aggressively seeking that defendant’s execution — lay at the heart of his denial of Kaczynski’s request for self-representation. A fair reading of the record provides no support for the finding that Kaczynski’s purpose was delay. Instead, it leads to the inexorable conclusion that Kaczynski requested self-representation on January 8, 1998, not because he wished to manipulate the trial process, but because Judge Burrell’s rulings of the previous day had ensured that his lawyers would present the mental-health defense that he found so abhorrent.20 Yet it is easy to appreciate why, as one commentator has suggested, “[t]he judicial system breathed a collective sigh of relief when the Unabomber pled guilty.”21 Indeed, all the players in this unfortunate drama — all except Kaczynski, that is — had *1128reason to celebrate Kaczynski’s unconditional guilty plea. His attorneys had achieved their principal and worthy objective by preventing his execution. The government had been spared the awkwardness of pitting three experienced prosecutors against an untrained, and mentally unsound, defendant, and conducting an execution following a trial that lacked the fundamental elements of due process at best, and was farcical at worst. Judge Burrell, as noted, had narrowly avoided having to preside over such a debacle and to impose a death penalty he would have considered improper in the absence of a fair trial. It is no wonder that today’s majority is not eager to disturb so delicate a balance.
The problem with this “happy” solution, of course, is that it violates the core principle of Faretta v. California22 — that a defendant who objects to his counsel’s strategic choices has the option of going to trial alone. Personally, I believe that the right of self-representation should in some instances yield to the more fundamental constitutional guarantee of a fair trial.23 Here, the district court understood that giving effect to Faretta’s guarantee would likely result in a proceeding that was fundamentally unfair. However, Faretta does not permit the courts to take account of such considerations. Under the law as it now stands, there was no legitimate basis for denying Kaczynski the right to be his own lawyer in his capital murder trial.
IV.
I do not suggest that the result the majority reaches is unfair or unjust. It is neither. I would prefer to be free to uphold the district judge’s denial of Kac-zynski’s request on the basis of the societal interest in due process for all defendants, and particularly capital defendants. Unfortunately, I am not permitted by precedent to do so. Because I am bound by the law, I am also unable to vote to affirm on the basis the district court relied on: that Kaczynski’s request was made in bad faith. Thus, with much regret, I must conclude that Kaczynski’s plea of guilty was not voluntary and that he was entitled to withdraw it. Accordingly, I most respectfully dissent.
. The standard for measuring a defendant’s competency to waive the right to counsel is no different than the standard for measuring his competency to stand trial. See Godinez v. Moran, 509 U.S. 389, 397, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam), the Supreme Court *1120held that a defendant is competent if he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” and "a rational as well as factual understanding of the proceedings against him.” Id. at 402, 80 S.Ct. 788.
. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Farhad, 190 F.3d 1097, 1101-1109 (9th Cir.1999) (Reinhardt, J., concurring specially).
. United States v. Hernandez, 203 F.3d 614 (9th Cir.2000).
. Because I conclude that the denial of Kac-zynski's right of self-representation rendered his plea involuntary, I do not consider his alternative argument that the plea was rendered involuntary by the court’s ruling that his counsel, not he, would decide whether a mental-health defense would be offered in the guilt phase of his trial.
. William Finnegan, Defending the Unabomber, The New Yorker, March 16, 1998, at 53.
. Cynthia Ozick, Quarrel and Quandary 5 (2000).
. That decision was not without controversy. Although the government made no explicit promise to David Kaczynski that it would not seek the death penalty, " '[s]ome FBI agents told (David) Kaczynski that Ted would be better off and could get help if he turned him in,’ said one source. 'Some in the Justice Department feel that they owe David because of what the FBI said.’ ’’ Gary Marx, U.S. Will Seek Death in Trial of Kaczynski: Prosecutors Reject Plea from Family of Unabomber Suspect, Chi. Trib., May 16, 1997.
. The government agreed with Kaezynski that he, not counsel, had the right to decide whether mental-health evidence should be presented and warned the court of "grave appellate error” if it ruled otherwise.
. Because this is a section 2255 motion and no hearing was held, we must take the facts as alleged by Kaezynski unless they are directly contradicted by the record. Most of the facts that determine the outcome of the question before us are, however, undisputed in the record.
. Rule 12.2(b) provides: "If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of guilt, the defendant shall ... notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk....”
In his section 2255 motion, Kaezynski stated that his consent to the filing of the 12.2(b) notice was "reluctant”; that he consented "under pressure from the defense team”; and that his agreement was conditioned on assurance by counsel that the defense team "would make no use of 'disease' or 'defect,' but only of the ‘condition’ aspect of the Rule,” and that the purpose of the notice was to allow psy*1122chologist Julie Kriegler, "who did not seem to think that [Kaezynski] suffered from serious mental illness,” to testify at his trial. There is no reason to doubt these facts and we are required, under the applicable rules, to assume that they are true.
. Kaczynski's motion to suppress evidence seized from his Montana cabin had been denied by the district court.
. Kaczynski’s characterization is supported by the record of the hearing. In response to Kaczynski's statement to the judge that his preference would be to exclude attorney Gary Sowards (who was principally responsible for the preparation of mental-state evidence) from the case, Judge Burrell responded, in part: “Why don’t we try it this way first, to see if this works. And if you have difficulty with it, I think you know how to reach me.” Later in the hearing, Kaczynski made the following statement: "bn that basis, Your Honor, I’m willing to proceed with my attorneys. And I think the conflict is at least provisionally resolved.”
.Judge Burrell made those remarks on January 7, 1998. His subsequent explanation, offered two weeks later when he denied Kac-zynski’s self-representation request, that upon reflection he came to believe that Kaczynski always understood the true import of the withdrawal of the 12.2(b) defense, is difficult to reconcile with his own firm and unequivocal declaration that he, too, had misunderstood the agreement and that, in fact, he had misunderstood it in precisely the same way Kaczynski had.
. Kaczynski does not challenge the court’s denial of his request for substitution of counsel.
. The night before, Kaczynski apparently attempted suicide, although the record shows that Judge Burrell was unaware of that fact until after the January 8 hearing was over.
. Judge Burrell's reasoning regarding the integrity of the criminal justice system and its obligation to protect the rights of capital defendants is appealing, and has been eloquently expressed on other occasions by some of our most distinguished jurists. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 171-72, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (Marshall, J., joined by Brennan, J., dissenting) (careful review of capital cases "is necessary not only to safeguard a defendant’s right not to suffer cruel and unusual punishment but also to protect society’s fundamental interest in ensuring that the coercive power of the State is not employed in a manner that shocks the community’s conscience or undermines the integrity of our criminal justice system”); Oilmore v. Utah, 429 U.S. 1012, 1019, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (Marshall, J., dissenting) ("I believe that the Eighth Amendment not only protects the right of individuals not to be victims of cruel and unusual punishment, but it also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments.”).
. See, e.g., Whitmore, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (states may execute a competent and willing defendant without any appellate review of the validity of the conviction and sentence); Demosthenes v. Baal, 495 U.S. 731, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (same). It is undoubtedly for this reason that in his lengthy written order of May 4 setting forth his reasons for denying Kac.zyn-*1127ski's self-representation request, Judge Bur-rell made no mention of the societal interests he so forcefully and compassionately discussed when making his oral ruling.
. Judge Burrell also found that Kaczynski's request was untimely as a matter of law, but that finding is also inconsistent with our case law, and the majority does not rely on it. Kaczysnki asserted his right of self-representation before the jury was sworn. In United States v. Smith, 780 F.2d 810 (9th Cir.1986), we held that a Faretta request is timely as a matter of law if "made prior to jury selection, or if made before the jury is empaneled, unless it is made for the purpose of delay.” Id. at 811, 95 S.Ct. 2525 (citations omitted) (emphasis added). Here, the jury was selected but not empaneled. Therefore, the majority is correct to "assume that Kaczynski’s request was not untimely unless it was made for purposes of delay.” Maj. op. at 1122 n. 11. That, then, brings us back to the issue presented by this appeal: did Kaczynski seek to represent himself because of the reasons the record so clearly reflects, or because he was trying to delay his trial?
. United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984).
. The majority makes much of Kaczynski’s consent to the presentation of mental-health evidence in the penalty phase, asserting that because "he agreed to evidence of his mental state, it cannot be for this reason that he later invoked the right” of self-representation. Maj. op. at 1117. This conclusion cannot be squared with the record, which makes abundantly clear that Kaczynski’s aversion to mental-health evidence was genuine, and that his sincerity was unquestioned by any participant in the proceedings prior to Judge Burrell’s January 22 ruling. Kaczynski explains that he acceded to the compromise allowing mental-state evidence in the penalty phase (in exchange for withdrawal of the notice permitting such evidence in the guilt phase) with “great reluctance” because he "believed he had no hope of getting anything better”; his attorneys had warned him that "new counsel would probably force on [him] the same kind of mental-status defense” that he objected to; "elimination of mental-status evidence from the guilt phase would have greatly reduced the amount of time that [he] would have to spend listening to a portrayal of himself as insane”; and he was under intense psychological pressure and "decided to get what he could while the getting was good” — -i.e., the withdrawal of the 12.2(b) notice.
Moreover, excluding the mental-health evidence from the guilt phase might, under Kac-zynski’s view of the law, have resulted in its total exclusion from the trial proceedings. Kaczynski thought highly of the environmental defense (imperfect self-defense) he wished to offer. In Kaczysnki’s mind, a jury should find him not guilty, because his acts were justified. Thus, as Kaczynski undoubtedly saw it, there might well never be a penalty phase.
.Michael Mello, The Non-trial of the Century: Representations of the Unabomber, 24 Vt. L.Rev. 417, 444 (2000).
. 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. See Farhad, 190 F.3d at 1101-1109 (9th Cir.1999) (Reinhardt, J., concurring specially)-