COULD LEAKS, MISTAKES COST U.S. UNABOMBER CONVICTION?

Byline: Richard Cole Associated Press 

Theodore Kaczynski is innocent because he believed he was saving lives when he killed. Or he is insane. Or the pressured FBI doctored its lab results. Or the jury pool has been poisoned by a torrent of official leaks.

These are samples of defense strategies federal prosecutors likely will face when they put the 54-year-old former math professor on trial for four Unabomber attacks, according to some of the nation's leading defense experts.

All agree Justice Department officials already have made mistakes that could come back to haunt them in a Sacramento federal court.

``They have leaked to hemorrhage proportions, and they have raised to epic proportions the expectations of the jurors,'' said Harvard law professor and legal commentator Alan Dershowitz. ``And by charging him essentially as the Unabomber, the prosecution has taken on a burden it needn't have.''

Throwing doubt on even one of the Unabomber attacks could undermine the jury's confidence in the rest of the case, Dershowitz said.

The torrent of leaks appears to show an almost airtight case proving Kaczynski is the man whose anti-technology bombing campaign killed three and injured 23 over 18 years.

In Kaczynski's Montana cabin, investigators found the original draft of the Unabomber manifesto. And the Unabomber's nine-digit secret code number. And a typewriter that matches Unabomber letters.

They have a close DNA match on stamps licked by Kaczynski and the Unabomber. They say the letters each man wrote share similar ideas and phrasing. And they found a partially completed bomb in a carefully crafted wooden case - the signature of the Unabomber.

But rather than shackling the defense, the leaks can help, says Georgetown University law professor and constitutional expert Paul Rothstein, who suggests that defense attorneys demand the case be thrown out.

``It's making it impossible to get a fair trial,'' Rothstein said. ``He's been tried and found guilty already.''

The leaks are more incriminating than in the O.J. Simpson case, he maintains, because they are so specific. And, unlike the Simpson case when leaks came from police, attorneys, friends of the victims and the news media, the Kaczynski leaks have only one source - the government.

One of Simpson's defense attorneys says potential jurors should keep that in mind.

``What's leaking out is going to be very manipulative, and people need to be very aware of that,'' said Gerald Uelmen, dean of Santa Clara University law school.

Kaczynski's lawyers must hire expert witnesses immediately and pick apart the government's apparent case, Uelmen suggests. The DNA match, for example. Search documents say 3 percent of the population shares the characteristics of the saliva on the stamps.

``It's certainly relevant, but it still leaves 6 million people out there,'' Uelmen said. ``And finding a nail in a bomb and finding a nail in a coffee can in his cabin doesn't get you very far either.''

Frank Rubino, who defended Panamanian dictator Manuel Noriega on drug-trafficking charges, suggested the defense focus on the conduct of prosecutors and investigators.

``When they get into a high-profile case they throw caution to the winds,'' Rubino said. ``They start doing things that they shouldn't do. A lot of times law enforcement will overrate their experts, fudge their evidence, or see something more in evidence than really exists.''

Tony Serra, the radical San Francisco attorney whose story was thinly disguised in the James Woods movie ``True Believer,'' says he'd be eager to take the case - and has a novel defense ready.

Under the ``imperfect self-defense'' doctrine, a person who believes he was acting in defense of himself or others - even if that belief is unreasonable - may be convicted of lesser charges.

And that could be coupled with the ``necessity'' defense, in which the defendant claims he broke the law to prevent a far greater harm - the man who speeds to get his pregnant wife to the hospital, for instance, Serra says.

``Taking the Unabomber's philosophy, he has a bona fide belief that the forces of business, capitalism and government have collated in a fashion that will ultimately destroy the fabric of our society,'' Serra said. ``He kills to stop this great disaster that is impending for mankind.''

Rothstein says he would lean toward the traditional insanity defense.

``You would need a diagnosis of genuine mental illness,'' Rothstein said, a task that doesn't appear difficult in the case of Kaczynski, who was described as ``pathologically shy'' by the head of the math department at the University of California at Berkeley, where he taught in the late 1960s.

``Then you would rely heavily on expert testimony and heavily on the aberrational weighing and balancing that he does in the manifesto,'' he said.

Do you put Kaczynski on the stand?

Maybe, Rothstein says, ``if he appeared obviously nuts and not personally offensive. But if he seemed hostile and dangerous and had a superficial rationality to him, that would be the worst thing for Kaczynski.''

California juries in particular seem sympathetic to defenses that cite external reasons for aberrant mental behavior, he adds.

Not in Sacramento, warns one of this area's top defense attorneys, Donald Heller, the former federal prosecutor who tried Manson-family member Lynette ``Squeaky'' Fromme for trying to assassinate President Ford in 1975.

Sacramento isn't San Francisco or Los Angeles, and the jury will come not only from this city but from the entire Eastern District of California, 25 mostly rural counties stretching into the Sierra Nevada, Heller says.

``You are going to get a really conservative jury - state workers, farmers, ranchers,'' he said. ``This is a great venue for prosecutors.''