Federal, State Courts Are Rivals for 1st Bombing Trial

He’s killed two people in Sacramento and one in New Jersey.

He’s wounded other people in Evanston, Nashville, Berkeley, Ann Arbor, Salt Lake, San Francisco and New Haven.

And he brought the nation’s airlines to a halt.

So, lots of prosecutors in lots of places would like to bring the Unabomber to the bar of justice in what could be the next “trial of the century.”

But for U.S. Atty. Gen. Janet Reno, the decision of where to bring the first case against suspect Theodore J. Kaczysnki involves a complex set of legal and political issues.

“Reno has to be very cautious,” said Loyola law professor Laurie Levenson. “There is a lot of politics involved. Everyone wants to vindicate the rights of their community.”

Levenson, a former federal prosecutor, said that government attorneys will feel the same pressure on this case as they did in the World Trade Center and Oklahoma City bombing cases: “you can’t lose this one.”

She and other legal experts said the decision of where to bring the first case is likely to be based on the quality of the evidence, the severity of the punishment that can be obtained, the potential for a good jury pool and the prospect of sustaining a conviction on appeal.

Complicating the issue is the fact that Kaczynski--if investigators link him to the Unabomber’s crimes--could be tried in state or federal court for the same acts in several jurisdictions.

For example, if evidence links him to the December 1994 mail-bomb killing of advertising executive Thomas Mosser in North Caldwell, N.J., he could be tried under a state homicide law that carries the death penalty. Similarly, if evidence points toward his being the perpetrator of the April 1995 mail-bomb death of California Forestry Assn. President Gilbert Murray in Sacramento, Kaczynski could be tried for murder in Superior Court there.

Indeed, Gov. Pete Wilson already has said Kaczynski should be sent to California so he can be tried under the state’s murder statute.

On the other hand, there are at least two federal statutes--one passed in the wake of the 1993 World Trade Center bombing--that could be used to prosecute the Unabomber, both of which carry the death penalty.

The 1994 anti-terrorism law provides that a person who uses or conspires to use a weapon of mass destruction (including a mail bomb) against any person within the U.S. in which death results “shall be punished by death or imprisoned for any term of years of life.” The death penalty also can be imposed under a 1987 law that prohibits the mailing of poison, poisonous animals and explosive and flammable materials.

For now, Kaczynski is only a suspect in 17 crimes attributed to the Unabomber, starting with the May 26, 1978, explosion of a package at Northwestern University and culminating in Murray’s murder last year.

So far, Kaczynski has been charged only with possessing “components from which a destructive device such as a bomb can be readily assembled.” However, federal agents are continuing to search his cabin in a remote area of Montana. And on Friday, government sources said they found a typewriter there that seems to match one used to type a 35,000-word manifesto that was sent by the Unabomber to the New York Times and Washington Post last year.

A federal grand jury in Great Falls, Mont., is scheduled to start hearing evidence against Kaczynski on the explosives charge, and perhaps others, on April 17.

Even if Kaczysnki is indicted there, that does not necessarily mean that he will be tried in federal court in Great Falls, Levenson said. While that grand jury is convened, it is conceivable that Kaczynski could be indicted by state or federal authorities in other jurisdictions, including Sacramento, where Murray was killed, and Essex County, N.J., where Mosser was murdered.

Justice Department spokesman Carl Stern said: “It’s too early to speculate as to the possible site of a trial until all the evidence has been obtained and evaluated.”

A federal law enforcement source said it was possible that there would be a meeting at the Justice Department next week to start sorting out some of the issues about where Kaczynski should be tried, assuming that evidence is developed linking him to the Unabomber’s 17-year career of terror.

“I think it should and will be a federal trial,” said Philip Heymann, a Harvard law professor who served as deputy attorney general early in the Clinton administration.

“The federal government has spent an immense amount of time and energy on the investigation,” he said, referring to the fact that agents from the FBI, the Bureau of Alcohol, Tobacco and Firearms and the Postal Service all have worked on the case, coordinated by FBI agent Jim Freeman in San Francisco.

“It’s expecting a lot to have them give the results of their investigation to another jurisdiction for trial,” Heymann said in regard to Wilson’s contention that California authorities should be allowed to put Kaczynski on trial.

More significant, he said, is the fact that the Unabomber “used the federal post office department to carry out his crimes . . . for maiming and death. There is a very real federal interest here.”

There is at least one factor, however, that could tilt in favor of a state prosecution in Sacramento.

Because of California’s double jeopardy statute, if the accused Unabomber is tried on federal terrorism charges in federal court and acquitted, he could not then be tried in state court on homicide charges. But the reverse is not the case--he could be tried on federal terrorism charges after being acquitted on state homicide charges.

While emphasizing that he would not speak about the Unabomber case, Larry A. Burns, chief of the violent crimes unit in the U.S. attorney’s office in San Diego, said that because of California’s double jeopardy law, the U.S. attorney’s office there, as a general rule, permits the district attorney’s office to go first in situations where there could be either a state or federal prosecution.

Still, most legal experts said they think there is a strong likelihood that cases against the Unabomber would be lodged in federal court. As to Wilson’s claim to the case, one former federal prosecutor said: “I think the nation has seen quite enough of the California criminal justice system in high-profile cases recently.”

The analysts also said they thought if the evidence is good, the first case is likely to be one stemming from the 1994 murder in New Jersey and 1995 murder in Sacramento because the death penalty is available in both cases, the information is fresher and witnesses probably would be more easily available.

If the quality of the evidence in the two cases is comparable, one federal prosecutor said there is a good argument for trying the New Jersey case first because the federal appeals court for that part of the country is much more sympathetic to the government in criminal cases than is the U.S. 9th Circuit Court of Appeals, which covers nine Western states, including California.

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What’s Next

Unabomber suspect Theodore J. Kaczynski waived his right to a preliminary hearing and a bond hearing. What’s next:

* Kaczynski remains jailed at the Lewis and Clark County jail.

* April 17, a federal grand jury meets to determine whether to indict him.

* If he is indicted, an arraignment, in which a defendant answers charges in court, could take place immediately.