Veteran New York defense attorney Ronald Fischetti still recalls the first and only time he went up against Assistant U.S. Attorney Robert Cleary, now the second chair in the District of New Jersey, who was named last week as the lead prosecutor in the Unabomber investigation.

It was 1989, and Fischetti was counsel to a New York lawyer who was standing trial, with a colleague, for orchestrating a $1.6 billion tax fraud. Hundreds of unwitting clients, including actor Woody Allen, were defrauded in the phony tax-shelter operation.

"This was a very big, very complicated, yet very dry, tax case," says Fischetti, a partner in Manhattan's Fischetti & Russo. "I expected to try it against a heavy-hitter, and in walked this young pup who was new to the [U.S. attorney's] office and who nobody knew."

Fischetti says he was delighted to have a junior prosecutor handling the three-month trial -- until he saw Cleary in action.

"By the end of the case," Fischetti says, "he had me going through the roof with objections to what were really novel trial approaches. But he had earned my tremendous respect. I still think I would have won that case against a lesser lawyer."

He adds, jokingly, "Tell him I'm still smarting from losing."

In announcing Cleary as lead prosecutor of the six-member government team in the case, Justice Department officials stressed Thursday that no decision had been made about where Unabomb suspect Theodore Kaczynski might be charged, or what charges would be filed.

But New Jersey and California are considered the top choices for the first trial because the deaths of a Unabomber victim in each state occurred after the enactment of the most recent, and most expansive, federal death penalty law.

New Jersey advertising executive Thomas Mosser was killed in December 1994 when a mail bomb exploded in the kitchen of his West Caldwell home, while forestry industry lobbyist Gilbert Murray was killed in April 1995 by a mail bomb in Sacramento, Calif. The Unabomber also is suspected of murdering a third victim in Sacramento in 1985, but that was nine years before the expanded federal death penalty statute took effect. In addition, 23 people were injured in related incidents during the past 17 years.

Good Blend of Skills
Regardless of where charges are brought in the case, Cleary will coordinate the investigation and serve as lead prosecutor, according to Justice Department spokesman Carl Stern. Stern said Cleary was chosen largely on the basis of experience.

Attorneys from New York and New Jersey, where Cleary, 40, has worked for his entire career, say the Justice Department could not have made a better choice.

U.S. Attorney Faith Hochberg, who recruited Cleary in October 1994 from the U.S. Attorney's office in the Southern District of New York, says he has the "legal and strategic skills" needed to handle the complex case. The investigation spans nine federal jurisdictions and requires the oversight of investigators from the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco and Firearms and local and state law enforcement officials.

"He [Cleary] combines an incisive legal mind with a very cool head and is the consummate team player," Hochberg says. "He has the right mix to handle this case."

Hochberg also notes that Cleary is intimately familiar with the requirements of the federal death penalty. When Christopher Green of East Orange was charged last year with killing four men and wounding a fifth during a robbery at the U.S. Post Office in Montclair, Cleary helped Hochberg determine that the law was inapplicable because of the absence of an aggravating factor. Under the statute, torture is considered a heinous and cruel crime, punishable by the death penalty, while a multiple execution- style murder is not. As a result, Green pleaded guilty and received a life sentence.

Justice Orchestrates Strategy
Justice Department officials and prosecutors, including Cleary and his boss, Hochberg, met last week for a strategy session to address how to proceed in the case against Kaczynski, 53, a reclusive former math professor who lived in a shack near Lincoln, Mont. To date, Kaczynski has been held on a single federal bomb-making charge. A grand jury is scheduled to convene this month to consider further charges.

Justice spokesman Stern says prosecutors expect the investigation of Kaczynski's Montana cabin to be completed early this week. Stern declined comment on reports Friday that investigators had discovered a typed copy of the 35,000-word Unabomber manifesto in a crawl space in the cabin.

Among the meeting participants were the five other members of the prosecution team: Assistant U.S. Attorneys Stephen Freccero of the Northern District of California in San Francisco, Robert Steven Lapham of the Eastern District of California in Sacramento and Bernard Hubley of Montana, and Justice Department attorneys E. Thomas Roberts of the terrorism and violent crime section and J. Douglas Wilson, of the appellate section.

The team will report to Principal Associate Deputy Attorney General Merrick Garland, who last year took charge of the Oklahoma City bombing case.

Justice Department officials said a range of legal issues was discussed at the meeting last Monday: which bomb attack was substantiated by the most evidence, which judges and jurors might be found to hear the case in each vicinage, and even the differences between the circuit courts. The Third U.S. Circuit Court of Appeals, which might hear the case on appeal if the trial is held in New Jersey, is more conservative than the Ninth Circuit, which sits in California.

'Most-Senior Adviser'
In Cleary's 18 months as first assistant in the District of New Jersey, he has tried no cases. Instead, he has served basically as chief administrator in Hochberg's office, which has about 100 assistants. Hochberg says Cleary, whom she calls her "most-senior adviser," has been involved in "every single decision that has been made."

Before coming to New Jersey, Cleary served as chief of the major-crimes unit in the Southern District in Manhattan, where he concentrated on complex white-collar cases. Cleary joined that office in 1987 and is best remembered for winning convictions in the $1.6 billion tax fraud case against New York attorneys Michael Oshatz and Leonard Messinger.

Ronald Fischetti, who represented Messinger, recalls that one of Cleary's novel trial strategies sparked a Second Circuit ruling barring prosecutors from cross-examining character witnesses. Cleary used that technique to great advantage, Fischetti says, in U.S. v. Oshatz, 89-1228.

"He basically used the character witnesses to go through the indictment step by step and hammer home each allegation," says Fischetti, who served as co-counsel on the case with Barry Slotnick of Manhattan's Slotnick & Shapiro. He says Cleary asked the witnesses whether their positive opinions of Oshatz and Messinger would change if the two men were found guilty of the charges against them. The technique, Fischetti says, proved to be a devastating one. "By the time he was done, our character witnesses' testimony was completely upended," he says.

In an August 1990 opinion, the Second Circuit condemned that line of questioning, saying it undermines the presumption of innocence. But the three-judge panel, in an opinion by Judge Jon Newman, found the error harmless and upheld the convictions, concluding there was overwhelming evidence establishing the defendants' guilt.

Fischetti says he "went through the roof" in objecting to the practice during the trial before Judge Robert Sweet of the Southern District. But, he concedes, even today, "That was lawyering."

Fischetti, who says he later became friends with Cleary, says the prosecutor demonstrated a remarkable ability to take "all kinds of disparate bits of evidence and put it together in one cohesive case." Fischetti says Cleary made that case an easy one -- despite the convoluted tax laws at issue -- for the jury to understand.

But, even more important, Fischetti says, the prosecutor showed great equanimity throughout the hotly contested trial, an approach for which Cleary won the U.S. Department of Justice Director's Award for Superior Performance. "He never lost his cool," Fischetti says.

Cleary, who lives in Manhattan, is a graduate of the College of William and Mary. He earned his law degree in 1980 from Fordham University School of Law. Cleary returned to Fordham in 1991 as an adjunct professor, teaching a semester-long seminar to second- and third-year law students selected to serve as interns with federal and New York state prosecutors.

Before joining the U.S. Attorney's Office in the Southern District, Cleary worked in the Justice Department's Tax Division in Washington, D.C., for two-and-a-half years.

Previously, he was a litigation associate for four years with Manhattan's Hughes, Hubbard & Reed. James Kobak, a partner at the firm, recalls Cleary deftly handling a pro bono case on his own shortly after he joined the firm. "He had a natural rapport with the judge and jury," says Kobak.

The New Jersey Law Journal is an affiliate publication of Court TV.
Copyright 1996, American Lawyer Media.