Unabomber Case Tests Federal Law On Death Penalty

More than three months after federal agents swooped down on his tiny Montana cabin, Theodore Kaczynski, the man authorities say is the Unabomber, is heading to the first of perhaps a series of highly publicized trials.

Mr. Kaczynski will face federal charges in Sacramento, the northern California city where two of the three Unabom-related fatalities occurred. A grand jury meeting June 18 in that city was expected to indict Kaczynski on multiple federal statutes, each of which potentially carries the death penalty.

But Justice Department prosecutors are walking into uncharted legal territory.

Pursuing the death penalty for violation of interstate commerce and United States postalstatutes has never been done before, say legal experts. The constitutionality of the death penalty under these federal statutes has yet to be tested in court and there is some concern that the defense strategy will rest in part on challenging those provisions.

The former University of California mathematics professor is alleged to have eluded federal law enforcement investigators while carrying out an almost 18-year long string of bomb attacks that stretched from New Jersey to Washington state. The bombing campaign claimed three lives and wounded 23 persons and came to an end only after David Kaczynski revealed suspicions to federal authorities that his brother was the infamous Unabomber.

Federal prosecutors have been considering the best locale for the first trial. Out of nine possible jurisdictions in which attacks attributed to the Unabomber took place, the choice was narrowed to California and New Jersey, the sites of the fatalities.

"The big issue in the Department of Justice was which jurisdiction was more likely to consider the death penalty in a way favorable to the United States," says Sacramento attorney Malcolm Segal, a former assistant US Attorney who has closely followed the case.

Federal prosecutors say they have accumulated overwhelming, though circumstantial, proof of Kaczynski's ties to the bomb attacks, based on evidence gathered in his Montana cabin, and its correlation with forensic and other evidence. The cabin yielded live bombs, including one similar to an explosive used in the fatal bombing of a Sacramento timber lobbyist in 1995, bomb-making tools, and a copy of the original typewritten manuscript of a lengthy ideological manifesto sent by the Unabomber to several publications last year.

"It's a dead-bang case," says former US Attorney for northern California Joseph Russoniello. "The evidence linking him to the manifesto and the similarities between the bomb-making paraphernalia found in the cabin and bomb fragments found at the scene is pretty compelling."

Eight of the bomber's 16 handmade devices were either mailed from or placed in northern California - in Sacramento, San Francisco, Berkeley, or Oakland.

According to Russoniello, federal prosecutors have been conducting interviews of potential eyewitnesses in hopes of placing Kaczynski in the San Francisco Bay area at the times bombs were sent to Sacramento and New Jersey, allowing them to try him in California for all of these acts.

Failing to make that connection, the team of federal prosecutors has opted to "take the best case first," says Russoniello. The 1995 Sacramento bombing has two key advantages for the government - the attack yielded considerable forensic evidence and it is covered by the federal death penalty under a criminal justice reforms enacted by Congress in late 1994.

Legal sources say federal authorities are seeking indictments for violations of several federal laws which carry the death pen-alty, including statutes on transporting explosives in interstate commerce with the intent to do bodily harm and sending destructive devices through the US mail.

While some legal experts say a death penalty verdict could be challenged on constitutional grounds, others see little risk because the 1994 crime bill clarifies the steps for bring such cases under federal law.

California state officials have argued that they should try Kaczynski first on state murder charges because the state's death penalty has already passed constitutional muster. "The death penalty is going to be the ultimate issue," predicts Sacramento lawyer Segal.

Kaczynski's defense strategy is by no means obvious. A defense resting on lack of mental competence or insanity is one possibility, says attorney Jerrold Ladar, a former federal prosecutor in northern California. An attempt to avoid the death penalty could also be based on presenting the circumstances of Kaczynski's upbringing, legal analysts say.

The Sacramento trial is not expected to convene for at least several months. It is likely that Kaczynski will also face a trial on federal charges in New Jersey.