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PROSECUTORS PLOT UNABOMBER CASE : TASK FORCE CONSIDERS SACRAMENTO, NEW JERSEY AS POSSIBLE TRIAL VENUES.

Byline: James Richardson Scripps-McClatchy Western Service

While federal agents have been sorting through Theodore Kaczynski's isolated Montana cabin, meticulously looking for evidence, federal attorneys across the nation have been trying to sort out the legal issues in prosecuting him as the Unabomber suspect.

Kaczynski, 53, was arrested earlier this month by the FBI and is being held in a Helena, Mont., jail on a single charge of possessing bomb components. A grand jury in Great Falls, Mont., is expected Wednesday to begin hearing at least some of the evidence that could tie him to nearly 18 years of bombings that left three dead - including two Sacramento men - and 23 injured.

If Kaczynski is charged with the bombings as expected, legal experts do not expect that the case will remain in Montana. Late last week, U.S. Justice Department officials named Robert J. Cleary, a New Jersey assistant U.S. attorney, to head a prosecution team that includes Assistant U.S. Attorneys R. Steven Lapham from Sacramento and Stephen Freccero from San Francisco.

Members of the prosecution task force have declined to comment on the case. But some federal sources and several former federal prosecutors explained for The Sacramento Bee some of the legal issues confronting them.

The most immediate legal issue is where to hold a trial. Federal sources said Kaczynski could even face a series of trials for the bombings. Usually, crimes in different jurisdictions can be tied together under conspiracy laws. But because Kaczynski apparently acted alone, those laws do not apply to the case.

That has left prosecutors trying to figure out which jurisdiction can tie together the most crimes.

``Anyplace where a bomb was mailed and anywhere it may have passed through is appropriate,'' said Malcolm Segal, a former assistant U.S. attorney who prosecuted the New World Liberation Front bombing cases in the Bay Area in the 1970s.

Alternatively, prosecutors may decide to go where they have the best chance of a conviction.

The three most serious cases are the killings of Hugh Scrutton in 1985 in Sacramento, Thomas Mosser in 1994 in New Jersey and Gilbert Murray in Sacramento in 1995. The last two could fall under a federal death-penalty statute enacted in 1994 and would be the most legally complex to prosecute.

Federal sources have said that New Jersey and Sacramento are the most likely venues for such a trial. A point in favor of a Sacramento trial is that several of the bombings in other states can be prosecuted here because the bombs were mailed from California and passed through Sacramento.

Prosecutors also could take a different tack and start with the easiest case first, which legal experts said would probably be in Montana on the charge of possessing bomb parts. From there, prosecutors could move to New Jersey or Sacramento and charge Kaczynski under federal terrorist statutes that carry the death penalty.

Such a course, however, would be expensive, and also could expose prosecutors to legal challenges that they essentially are putting Kaczynski on trial more than once for the same thing, violating the U.S. Constitution's double-jeopardy clause.

Complicating the jurisdictional issue is that state prosecutors in California and New Jersey could bring murder charges against Kaczynski. Although New Jersey Gov. Christie Whitman has said her state will back off, Gov. Pete Wilson has been adamant that California should get the first crack at prosecuting Kaczynski in Sacramento.

Few in local or federal law enforcement circles believe Kaczynski will be tried in Sacramento County Superior Court. But legal experts point out that county prosecutors have a difficult dilemma: Under California's double-jeopardy law, which is more stringent than federal law, if Kaczynski is acquitted in federal court, he probably cannot be charged in a California state court. However, if he is first acquitted in a state court, he could still be charged again in a federal court.

``I don't think it is inappropriate for state authorities who have a good case to push for it,'' said former state Attorney General John Van de Kamp. ``Homicide is the most grave crime one can commit. By and large, homicides should be tried in state courts.''

However, former federal prosecutor Gerald Uelman, now a Santa Clara University law school professor, said that state prosecutors have at least one legal disadvantage: California law is more restrictive than federal law on the evidence they can present to a jury. The state law is particularly restrictive on evidence gathered with high-tech tools, such as the military X-ray equipment used in the search of Kaczynski's cabin.

Federal prosecutors have a few procedural difficulties of their own. They must follow the Justice Department's ``death penalty protocol'' before bringing capital charges against a defendant. U.S. Attorney General Janet Reno must certify that she has followed the procedures before a death-penalty case can go forward.

She was attacked by defense attorneys in the Oklahoma City bombing case for declaring early in the case that federal prosecutors would seek a death sentence against defendants Timothy McVeigh and Terry Nichols.

Reno was careful last week in her comments about the Unabomber case.

``We will make appropriate statements at the appropriate time,'' Reno said Thursday at her regular weekly press briefing.
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Publication:Daily News (Los Angeles, CA)
Date:Apr 14, 1996
Words:868
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