Unabomb Prosecutors Weigh Decision on Death Penalty

As the mother of a Unabomber victim, Bessie Dudley said she had no hesitation last month when a federal prosecutor telephoned her suburban Sacramento home.

“He called and asked if I believed in the death penalty, and I said yes,” the 78-year-old said.

And, as for her opinion of Theodore J. Kaczynski, the Unabomber suspect accused of killing her son, Dudley said he deserves to die: “I believe he killed my son, and he ought to pay for it.”

That conversation with Assistant U.S. Atty. R. Steven Lapham came as the U.S. Justice Department is preparing to take a key step in its case against Kaczynski: determining whether to seek the death penalty.

Prosecutors have indicated that they hope Atty. Gen. Janet Reno will resolve that question within the next several weeks. Last Thursday, she flatly refused to comment on when the work of a high-level Justice Department review committee would be completed.

But Reno is known to be getting input from local prosecutors, family members of victims such as Dudley, and from the family of Kaczynski.

Reno’s decision is likely to be made all the more difficult because of the pivotal role played by members of Kaczynski’s family. They helped investigators crack the case, and more recently have issued widely publicized pleas to prosecutors to spare Kaczynski’s life, in part, they say, because he is mentally disturbed.

One law enforcement source said he believes the committee is leaning against recommending the death penalty out of fairness to the Kaczynski family.

That sentiment might resonate with Reno, who is personally opposed to capital punishment even though, as attorney general, she has agreed to pursue the death penalty in more than two dozen cases.

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If she opts for seeking a sentence of life without the possibility of parole, Reno would risk some political fallout, especially in Sacramento where Gov. Pete Wilson, an ardent death penalty supporter, has urged the death penalty for Kaczynski should he be found guilty.

Either way, Reno’s decision will frame the way the case unfolds, how the jury is selected and the type of defense mounted by Kaczynski, 54, a Harvard-trained mathematician who lived alone for many years in the Montana wilderness and who now occupies an isolation cell at the Sacramento County Jail.

“I think this is a tough call. It will have to be made at the highest level. . . . There’s a lot of pressure to seek the death penalty because of the nature of the crime,” said Laurie Levinson, a former federal prosecutor who is dean of the Loyola University School of Law.

“You can create some sympathy for the defendant . . . if jurors sense the man isn’t all there mentally. They may feel the prosecution has gone overboard in filing their charges, that they’ve made it a political matter.

“Look at who’s on death row now. It tends not to be the Harvard graduate. We aren’t used to executing the demented genius.”

Kaczynski, a former UC Berkeley assistant professor of mathematics, was arrested at his Montana cabin in April. A grand jury indicted him on 10 counts of illegally transporting, mailing and using bombs.

These murder-by-bombing charges related to a 1985 bomb attack that killed Dudley’s son, Sacramento computer store owner Hugh Scrutton, and the 1995 slaying of lobbyist Gilbert Murray, president of the California Forestry Assn. Kaczynski was also charged in attacks that injured UC San Francisco geneticist Charles Epstein and Yale University computer scientist David Gelernter.

Kaczynski also faces charges in New Jersey in the bombing death of advertising executive Thomas Mosser.

Under federal law, there is no general murder statute. The last time the federal government performed an execution was in 1963, when it hanged a kidnapper in Iowa.

But a 1988 change in the law allowed for the executions of high-level drug traffickers convicted of murder. And a 1994 anti-crime law spelled out the kinds of crimes where the death penalty could be applied--including such offenses as murder by mail bombing.

Expecting a surge in executions, the government spent $400,000 to build an execution facility at the United States Penitentiary in Terre Haute, Ind., and $1 million to renovate a housing unit into death row.

But all the federal death penalty convictions are under appeal, so the execution facility has not been utilized, according to a prison spokeswoman. The method of execution would be lethal injection.

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After the law was toughened, Reno in 1995 issued guidelines spelling out when the death penalty may be sought. Under Reno’s policy, local federal prosecutors are directed to make a recommendation for review by the committee in Washington.

The review committee is headed by John C. Keeney, acting chief of the criminal division and a career Justice Department lawyer. Among the other members are two lawyers from the criminal division and a representative from the staff of Jamie Gorelick, the deputy attorney general. The Justice Department won’t disclose the names of panel members besides Keeney.

It is intended that the committee weigh reasons for and against seeking the death penalty, including material submitted by the defense.

In her 1995 memo on potential death penalty cases, Reno said: “Recognizing that there may be little or no evidence of mitigating factors available for consideration at the time of this determination, any mitigating factor reasonably raised by the evidence should be considered in the light most favorable to the defendant.”

“Obviously, it’s a big question whether they proceed capitally or otherwise,” said Kaczynski’s lawyer, Quin Denvir of Sacramento. But Denvir said Kaczynski’s defense team doesn’t concede “anything about the validity” of the Justice Department’s guidelines.

A similar committee in the Oklahoma City bombing case recommended the death penalty for defendants Timothy McVeigh and Terry Nichols, and the government filed a formal request for it in October 1995.

Reno, however, took some heat from defense attorneys because of her comments after the Oklahoma City blast that she would seek the death penalty.

That may explain why she is so sensitive about discussing the Unabomber case--though in the past she has spoken out against the death penalty.

After she became attorney general, Reno told the St. Petersburg Times in her home state of Florida: “What I have always said that best articulates my feelings is that I think the law is designed to protect human life, and therefore for the law to take human life seems inconsistent.”

In a similar vein, Kaczynski’s anguished family is seeking to keep him off death row.

Kaczynski’s younger brother, David, and his wife went to authorities with their speculation that Theodore could be responsible for a 17-year string of bombings that killed three people and injured 23 others.

They began to have suspicions after seeing similarities between Theodore’s writings and the Unabomber’s 35,000-word anti-technology manifesto published by the New York Times and Washington Post.

“But what an awful irony if I were to take action to prevent . . . further loss of life, and it ended up in the loss of my own brother’s life,” David Kaczynski said last summer in an interview with the CBS newsmagazine “60 Minutes.”

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Some law enforcement officials privately acknowledge that ignoring the family could have a chilling effect in future cases in which family members are considering whether to turn in a loved one they suspect of having committed a crime.

But one veteran California prosecutor, who spoke on condition of anonymity, said David Kaczynski still would be able to appeal to a jury for leniency for his older brother in the penalty phase of the trial, should Theodore Kaczynski be found guilty.

If the death penalty is pursued, “you are really thinking about the penalty phase from the outset,” said Linda Carter, a law professor at McGeorge School of Law in Sacramento and a former public defender and Justice Department attorney.

“From the very outset, you are going to have to be discussing the death penalty with those jurors even before the question of guilt or innocence is decided,” Carter said.

Even if Kaczynski’s mental state is not raised in the guilt phase of the trial, she said, his lawyers could bring up almost anything in the penalty phase “that could possibly be mitigating evidence,” including any psychological problems.

She added that his lack of a criminal background would work to Kaczynski’s advantage.

In contrast, the California prosecutor said he would expect government lawyers to characterize Kaczynski “as an incredible serial killer who has no record because of his cleverness.”

Gladstone reported from Sacramento and Jackson from Washington.