By Charles Finnie
Legal Times
April 23, 1996
WASHINGTON -- Since the April 3 arrest of Theodore Kaczynski, the university mathematician turned reclusive mountain man, Justice Department officials have managed to disclose a vast array of information explaining why they believe he is the elusive Unabomber.
But there's one point department officials -- from the attorney general on down -- are keeping well under wraps: the prospect of invoking the federal death penalty for the Unabomber's 17-year terror campaign.
"I can't comment on how this matter will proceed, except to say that we will take every step based on the evidence and the law," Attorney General Janet Reno said April 18 at her weekly news briefing.
Although department officials are loath to acknowledge it, the silence reflects a lesson learned from its case against the two men charged with carrying out the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
Within hours of the Oklahoma City explosion, Reno vowed that she would move to execute those responsible. "The death penalty is available, and we will seek it," she said, looking to assure a shocked nation -- and seemingly running roughshod over a policy she issued less than three months earlier on how the department would deliberate in cases eligible for capital punishment.
If that isn't reason enough to keep mum, another uncomfortable factor looms when considering the death penalty for the Unabomber.
The Kaczynski family early in their dealings with the Federal Bureau of Investigation voiced objections to capital punishment, says Tony Bisceglie, the Washington lawyer who serves as an intermediary between the Kaczynskis and the FBI. And although they were in no position to "negotiate a guaranteed outcome," Bisceglie says, the family no doubt will remind Reno that she has her suspect in jail only by the grace of Kaczynski's brother, whose suspicions eventually enabled the FBI to make its arrest.
"Let's be frank here," says Bisceglie. "There is only one person who could have brought him to the attention of the government, and it was David [Kaczynski]."
A final reason for the tight lips on the death penalty is that, while lawyers in the case are reviewing potential statutory schemes for invoking capital punishment, it remains to be seen on what charges the evidence is strongest -- and whether the federal interest in the prosecution could be better served by a swifter, non-capital case, which could still put the accused perpetrator behind bars for decades, if not for life.
Across the country, capital defense lawyers, who are keenly interested in how the attorney general has wielded the federal death penalty since its modifications and expansion in the 1994 crime bill, are watching the case closely.
Recalling Reno's "hang 'em high" rhetoric in the wake of the Oklahoma City bombing, the attorney general has won praise from the defense bar for keeping quiet as the Unabomber case unfolds.
"I can only compliment them on learning their lesson," says Gerald Goldstein, of San Antonio, Texas, the immediate past president of the National Association of Criminal Defense Lawyers.
Goldstein, however, was quick to add that Reno's silence is in marked contrast to the "flood of leaks" on evidentiary matters emanating from her department, a point Goldstein says is an embarrassment to Reno.
"There will come a day when a court is going to toss out a serious case because of that kind of behavior," he predicts.
On Friday, a judge in Helena, Mont., rejected a defense motion filed on Kaczynski's behalf asking that the planned grand jury proceedings in the case be halted because news leaks have compromised chances for an impartial hearing. Kaczynski's Montana counsel declined comment for this article, citing a local court rule forbidding discussion of criminal cases in the media.
The bottom line of any behind-the-scenes death penalty deliberations is made abundantly clear, however, in the procedures themselves, which Reno issued on Jan. 27, 1995. If an indictment allowing for capital punishment is returned against Kaczynski, it will fall to the attorney general herself to make the final call in yet another hot case -- and perhaps during the heat of a presidential campaign.
According to defense lawyers, legal scholars and former Justice Department officials, Reno's ultimate decision on the death penalty is an open question, given what is known about Kaczynski and what still remains to be seen of his legal defense.
And a department summary of its death penalty-eligible cases in 1994 and 1995 offers few clues about the ultimate outcome.
It shows Reno has authorized an increasing number of capital cases, but suggests she will accept life sentences in some of these cases in exchange for guilty pleas. What's more, she has withdrawn official notices of intent to seek capital punishment in pending cases and, at least once, did so over the objections of a U.S. attorney.
As applied to the Unabomber case, the procedures, known as U.S. Attorney's Manual 9-10, call for the lead prosecutor, Robert Cleary, the top New Jersey assistant U.S. attorney, to invite Kaczynski's defense counsel to meet and present arguments against capital punishment. Kaczynski is currently being represented by Michael Donahoe and Tony Gallagher of the nonprofit Federal Defenders of Montana.
Regardless of whether Cleary chooses to proceed further, the rules call for him to prepare a prosecution memorandum to be submitted to the chief of the department's Criminal Division. The document is supposed to include a comprehensive discussion of the government's theory of liability in the case; facts and evidence covering any aggravating and mitigating factors set forth in the death penalty provisions of the 1994 crime bill; biographical and criminal data on the defendant; and any justification for a federal, as opposed to a state, prosecution.
One thing the rules don't allow Justice prosecutors to do is use the threat of a death sentence as leverage in seeking a plea from the defendant.
Cleary did not return a telephone message seeking comment.
If he were to choose to press for a death penalty authorization from Main Justice, a capital punishment review panel -- made up of Reno and Deputy Attorney General Jamie Gorelick, or their designees -- would be convened. That body must invite defense counsel to make a second presentation.
Following a recommendation from the review panel, which is supposed to be completed within 15 days, it is left to the attorney general to authorize or reject the filing of a death penalty notice.
Capital defense specialists are suspicious of the review process, particularly in high-profile cases, and in the politically charged context of the death penalty.
That sentiment is held strongest perhaps by lawyers for the Oklahoma City bombing defendants, Timothy McVeigh and Terry Nichols.
"We declined to participate on the basis that the procedure is a sham and the decision was already made," says Robert Nigh Jr., one of three court-appointed lawyers for McVeigh.
To support the charge, Nigh, a solo practitioner and former assistant federal public defender in Nebraska, cites post-bombing comments by Reno and President Bill Clinton. Indeed, the Justice Department hasn't as yet put the legal implications of the post-explosion comments in the Oklahoma City blast behind it. A hearing is scheduled May 1 in Denver on a bid by the bombing defendants, McVeigh and Nichols, to block capital punishment in their case.
In the motion, their lawyers claim Reno prejudged the matter, thereby violating her own procedures for authorizing the death penalty -- and, by extension, the due process rights of McVeigh and Nichols.
Nigh says that an acceptable alternative to the procedures for the Oklahoma City case would be for the courts to appoint a special prosecutor or commission to decide the question.
The Justice Department has countered Nigh's claims in court papers. The department argues the attorney general's guidelines confer no due process rights on criminal defendants.
The department also contends that the procedures were properly followed in the case, regardless of the post-bomb statements.
Another defense lawyers says that he has had a better experience with the process.
David Ruhnke, a leading New Jersey capital defense specialist, has appeared twice before the Justice Department death penalty review panel. "I can't in good conscience call it a rubber stamp," says Ruhnke, of West Orange's Ruhnke & Barrett.
In 1995, Ruhnke succeeded in convincing the attorney general to reject the death penalty for a client charged in a drug-related killing, although the U.S. attorney in Pennsylvania prosecuting the case argued for authorization.
Yet, Ruhnke adds, he is under no delusions that the attorney general would find it easy to reach a similar conclusion in the case against Kaczynski, given the three deaths and 23 injuries that FBI agents have ascribed to the Unabomber.
"In a sense, it is like Oklahoma City," he says. "You've got national attention and the politics of the death penalty. I would be surprised if they're not predisposed, and would have to be talked out of it."
George Kendall, the top death penalty lawyer at the NAACP Legal Defense and Educational Fund Inc., which has a long tradition of monitoring and intervening in state capital punishment cases, expressed little faith Reno would reject the death penalty in the Unabomber case, if confronted with political pressure to seek it.
"I don't care what policies you have in place," Kendall says. "Objective criteria go out the window."
Stephen Bright, of the Southern Center for Human Rights in Atlanta, applauds Reno for setting up the procedures, but he says he remains skeptical of their value to defendants.
"It is hard to imagine they will be able to resist, with the publicity," Bright says of a decision in the Unabomber case. "Nothing drives the death penalty like publicity."
Poetic Justice
For the man accused of being the Unabomber, there may be poetic justice in the statute under which federal prosecutors are most likely to seek an indictment.
18 U.S.C. 1716, a Postal Service measure, was signed into law in 1948, but was based on statutes dating back to 1909, before the modern-day technology the Unabomber rails against took hold.
Although the statute's criminal ban on mailing "injurious articles" covers explosives, it is first and foremost concerned with organic matter -- specifically poisons and poisonous animals, reptiles, and insects, and live scorpions in particular.
Each intentional violation of the statute that results in injury is punishable by a $10,000 fine or a 20-year prison sentence. The death penalty, carried out by lethal injection, or life in prison without parole is available if a victim is killed.
A five-year statute of limitation, however, means prosecution under the measure for much of the Unabomber's mail -bombing campaign is foreclosed. The statute would be available for two 1993 bombings, which injured a University of California geneticist and a Yale computer scientist, and for two fatal blasts in 1994 and 1995. The latter killed New Jersey public relations executive Thomas Mosser and California forestry industry representative Gilbert Murray.
To invoke the death penalty, the government also would be required to prove one of several aggravating factors established by the 1994 crime bill. Killings involving "substantial planning" is one factor the department would consider.
One former Republican Justice Department official is not yet sold that the government will, or even should, seek the death penalty for Kaczynski.
And no matter what the decision, says George Terwilliger, the second in command at the Justice Department during President George Bush's administration, federal prosecutors have no reason to rush.
Terwilliger says gauging the death penalty, as well as potential prison sentences set out in the Federal Sentencing Guidelines, will be just two of many considerations in the government's prosecution strategy.
The primary question, he says, will be venue: "Where is the strongest case?" He adds that the department also would want to "preserve the options presented by multiple prosecutions," whether in various federal districts or by cooperating with state prosecutors.
Given the criminal penalties in the postal statute and related measures, "there seems enough evidence to convict him of serious crimes in the District of Montana, put him away for a long time, and vindicate the federal interest," Terwilliger says.
Terwilliger also parts company with many defense lawyers on the inevitability of politics coming to bear on the death penalty question.
"People died. Public opinion is relevant. He created terror. He killed purposely," Terwilliger says of the Unabomber. "But it is not a slam dunk. There is a political focus to any decision an attorney general makes. Yet, I would guess it would not be a major focus."
Although Justice Department officials declined comment for this article, a summary of recent death penalty cases released by its public affairs office suggests that Reno, who personally opposes capital punishment, has nonetheless not been reluctant to employ it as attorney general.
According to the figures, Reno authorized the federal death penalty for 38 defendants during her first three years on the job, which is more than half the total number approved since 1990.
In 1995, after passage of the 1994 crime bill, which expanded and established new evidentiary standards for the federal death penalty, Reno authorized it for nine new defendants. But she also moved to withdraw from seeking it against five defendants, according to the summary. None has actually been executed.
Paul Rothstein, a professor at Georgetown University Law Center in Washington, says the figures suggest the department is deliberating carefully, and he applauds Reno for imposing a centralized mechanism that serves to insulate decisions from local passions and prejudice.
"I think it is inevitable there will be some political influence, and political influence is abominable in a death penalty decision," says Rothstein.
Rothstein agrees with Terwilliger that the death penalty question in the Unabomber case will not be a political test for Reno.
"Oklahoma City was a test, but Kaczynski is far more complicated," he says. "He is obviously nuts, which is a mitigating factor. I just don't think there is going to be the coalescence of public opinion. It's a vastly different case. I think the procedures will work."
Rothstein still sees a virtue in the procedural alternative offered by the lawyers for the accused Oklahoma City bombers, however.
"The best solution to political influence would be an independent commission or committee totally insulated, say with lifetime tenure, older folks with no reputation to make or break -- and made up of every conceivable shade," he says.
Yet with no such proposals on the horizon in Congress and with the Supreme Court having yet to hear an appeal of the new federal death penalty, the decision is certain to fall to Reno.
And that sets up the possibility of a peculiar first for the attorney general, if, in fact, Cleary, the New Jersey prosecutor leading the case, moves for the death penalty for Kaczynski.
Bisceglie, the white collar and civil litigator who is the Kaczynski family's go-between with the FBI, says he expects to participate in any formal Justice Department death penalty review on the case. It remains to be seen whether that would include an actual appearance at the review committee meetings.
(Legal Times is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
