Frustrated by defense delays in bringing Unabomber suspect Theodore Kaczynski to trial in California, federal prosecutors last week tried forum-shopping of a sort: changing the order of prosecution to try him in New Jersey first.

The team led by First Assistant U.S. Attorney Robert Cleary wanted to advance the case against Kaczynski for the one bombing not included in the California case. Cleary's team had sought a June trial on the three-count indictment charging Kaczynski with the mail-bombing death of advertising executive Thomas Mosser -- the only attack for which the Unabomber claimed responsibility.

Had Cleary succeeded, he might have been able to start the broader Unabomber trial, scheduled for next November in Sacramento, with a conviction already in place.

But his efforts fell short. Senior U.S. District Judge Dickinson Debevoise called the prosecution's bid for a June 30 trial in Newark unworkable, finding no way to reconcile the court dates that would be necessary here with the detailed trial schedule already set for the Sacramento case.

"Frakly, I don't think it's a realistic proposal," Debevoise told Cleary's team during a 45-minute hearing Tuesday. Kaczynski's federal public defenders had contended that prosecutors were deliberately trying to interfere with -- and perhaps even undermine -- the Sacramento trial schedule, and more important, the defense's efforts to put together its case.

On the other hand, Debevoise on Friday denied a motion by defense lawyers to transfer the New Jersey case to California. Although he acknowledged the logic of trying the cases together, he found that the concerns raised by the defense did not "outweigh the powerful reasons to try the New Jersey charges separately." That ruling sets the stage for a Unabomber trial in New Jersey, but not until 1998 or 1999.

DEFENDERS LEAD
Last week's skirmishes were only the latest between prosecutors and defense attorneys intent on gaining a strategic advantage, no matter how small, in the location and timing of the enormous Unabomber cases, captioned here as United States v. Theodore John Kaczynski, 96-CR-607.

Despite Debevoise's refusal to consolidate the cases, it's the public defenders so far who are ahead in the victory count.

In Sacramento, U.S. District Judge Garland Burrell Jr. has granted the defense numerous extensions for filing motions -- over the prosecution's objections -- and has, in the government's words, "substantial[ly]" delayed the start of the trial to its now- scheduled Nov. 12, 1997 date.

Kaczynski's defense team, led by Federal Public Defender Quin Denvir of Sacramento and including New Jersey Assistant Federal Public Defender Chester Keller, had hoped to eliminate a second prosecution in New Jersey by consolidating the three-count indictment here with the 10- count case in Sacramento. And on Tuesday they seemed pleased that Debevoise -- though clearly not favoring the idea -- did not dismiss the motion out of hand, as he did the prosecution's request.

The defense had made the consolidation motion under Fed. R. Crim. P. 21(b), which allows transfers for "the convenience of the parties and witnesses and in the interest of justice."

The lawyers argued that having just one trial is more practical, given the volume of evidence in the case, the government's earlier move to consolidate all the other cases in Sacramento, and the additional time and effort that would be needed to mount a second defense in New Jersey -- for what they contend are virtually identical charges.

Most importantly, Denvir argued in briefs to the court, mandating separate trials could impinge on Kaczynski's Fifth Amendment protection against double jeopardy.

In their brief, the defenders noted that the government plans to present evidence of the New Jersey bombing, under Fed. R. Evid. 404(b), in an attempt to establish a pattern and identify Kaczynski as the Unabomber. With separate trials, the defenders argued, "a Sacramento jury will hear testimony and evaluate evidence of the New Jersey bombing, and a New Jersey jury will have to hear the same or similar testimony and evidence in a subsequent New Jersey prosecution, which will take place many months later."

That was an argument that cearly registered with Debevoise during the hearing. "That really is a principle thesis stated in your brief: Why try this case twice?" the judge said.

Prosecutors quickly countered that separate trials are needed because the murders were separate acts -- and that a trial in New Jersey is necessary because the Mosser murder occurred here.

Cleary argued in his brief that, under 18 U.S.C. Sect. 3235, the location of the crime is "the most crucial factor" in determining where a trial should be held. The statute, Cleary wrote, requires that "[t]he trial of offenses punishable by death shall be had in the county where the offense was committed, where that can be done without great inconvenience."

After the hearing, Cleary maintained that the statute was written specifically with the crime's impact on the community in mind. "We view the statute as voicing a congressional intent" that trials involving capital offenses be held in the location where the murder occurred, he said. Added U.S. Attorney Faith Hochberg, "This is a murder in New Jersey for which there has been an indictment in New Jersey -- and there should be a trial in New Jersey."

Cleary also argued, in the briefs, that it is the defense's burden to show that proceedings should be transferred to another venue. And, he contended that Kaczynski has failed to meet that burden or prove that there would be substantial inconvenience in having a trial in New Jersey.

Cleary argued that Kaczynski failed to prove any of the 10 factors set forth by the U.S. Supreme Court's decision in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964) for considering motions under Fed. R. Crim. P. 21(b). Those factors include the location of witnesses and documents, expense to the parties, and disruption of the defendant's business. Most of the Platt factors, Cleary says, "mitigate against or fail to support Kaczynski's motion."

Cleary repeatedly stressed the government's stand that crimes that result in death should be prosecuted where the death occurred. "The convenience to the defendant of facing a single trial, standing alone, should not outweigh this critical factor," he wrote.

PROCEDURAL EFFICIENCY
Debevoise reserved decision, but issued his 11-page ruling just two days later. On Friday, he held that the Platt factors, considered in their totality, do not support a transfer of venue. Debevoise ruled that the "most efficient procedure" is for the Sacramento case to proceed on course and try the New Jersey case separately after the California case is resolved.

While Debevoise acknowledged a "surface plausibility" to the defense's arguments that using the New Jersey case for Rule 404(b) purposes could raise double jeopardy concerns, he held that the evidence that would need to be introduced in Sacramento would be "substantially less extensive" than the evidence required to prove the New Jersey criminal charges.

That ruling means that the trial here, which prosecutors maintain will be "streamlined," will start 70 days after the California case is completed. The guilt phase of that trial is expected to last at least six months.

Much of Debevoise's ruling was foreshadowed by comments the judge had made during the court proceeding Tuesday. He had posited that the defendant's rights were not the only issue to be considered. And he also pointed out that Kaczynski's family lives in New York -- a state, he noted, that is much closer to New Jersey than California.

Overall, too, Debevoise did not seem at all anxious to surrender the high- profile case. Indeed, he even appeared to consider the possibility, if only briefly, of granting the prosecution's motion to go ahead with the New Jersey case first. "I could try [the case]," he told Kaczynski's defense team during the hearing.

"I'm sure you could and Mr. Cleary could," answered Public Defender Denvir. "Mr. Keller and I couldn't."

Denvir told the judge there was no way the attorneys could be ready for a June trial here. "It's very difficult to prepare a defense for two cases simultaneously, separated by 3,000 miles," Denvir said. "It would be like a child-custody case -- who gets to see the client?"

Ultimately, Debevoise seemed to defer to his Sacramento colleague in denying the prosecution's motion for a June trial here. He appeared concerned that unexpected motions or other delays would push the trial's end dangerously close to that November trial start date.

MOSSER COUNT CARRIES DEATH PENALTY
At the start of Tuesday's hearing, Kaczynski was arraigned on the three-count indictment charging him with the 1994 mail-bomb death of Thomas Mosser of West Caldwell, an advertising executive with the firm of Young & Rubicam.

The indictment, returned in October, charges Kaczynski with transporting and mailing an explosive with the intent to kill or injure. Kaczynski also was charged with using a destructive device in relation to a crime of violence. He pleaded not guilty on all counts.

The first two counts of the indictment can carry the death penalty. But the U.S. Attorney General's office has yet to say whetherit will seek death for Kaczynski. If so, it could be the first federal death penalty case in New Jersey under the present federal statute. One other such case is pending in the Camden vicinage.

In presiding over the case here, Debevoise -- who assumed senior status in 1994 -- would bring with him much more criminal experience than his Sacramento counterpart. Judge Burrell, who drew the Kaczynski case after two other judges there recused themselves, has not handled any of that district's more notable criminal cases in his four years on the bench.

Before being assigned to Burrell, the Kaczynski case was assigned to U.S. District Judge Edward Garcia. But Garcia recused himself in July, saying he did not believe he would be able to devote himself to the time-consuming case once he took senior status in November. To be sure, the Sacramento case, which includes criminal counts relating to four bombings and information on another 12 uncharged bombings, is far more complex than the New Jersey case. But senior status didn't influence Debevoise, who has maintained a full caseload.

Another Sacramento judge, Lawrence Karlton, had also bowed out. Karlton recused himself because a close friend owned the building where the Unabomber's 1995 fatal bombing allegedly occurred.

--Reporter Maureen Castellano can be reached by e-mail at macastellano@counsel.com.

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