Despite an 18-year crime spree and a mountain of circumstantial and forensic evidence, Justice Department lawyers appear to have resisted the temptation to bloat their indictment of Unabomber suspect Theodore Kaczynski.

A Sacramento federal grand jury on Tuesday returned a 10 -count indictment against Kaczynski that mentions just four of the 16 attacks attributed to the Unabomber by the Federal Bureau of Investigation. The bare-bones, nine-page indictment packs plenty of punch, however: It covers two of the Unabomber's three murder victims, and employs death penalty statutes that were amended in 1994 with an eye toward withstanding constitutional challenge.

The indictment also gives strong indications as to why Justice Department officials settled on Sacramento as the lead venue for prosecuting Kaczynski, the recluse arrested this spring at his remote cabin in Montana. In addition to Unabomber -related murders occurring in Sacramento in 1985 and 1995, prosecutors apparently have been able to establish Sacramento links to two of the bomber's other more notorious crimes in 1993.

Those charges involve mail bombs that exploded and injured two different doctors, one in Tiburon and another in Connecticut. The indictment indicates that federal prosecutors will try to prove Kaczynski mailed those explosive devices to his victims from Sacramento in June 1993, giving the government two more compelling crimes to present to a jury in the Sacramento indictment.

Justice Department officials declined comment Tuesday, and even eschewed the usual press conference to announce the indictment. The decision not to hold a press conference was a stark contrast to the stream of government leaks about evidence assembled by the FBI since Kaczynski was arrested in April.

"It augurs well that they are showing self-restraint," a former federal prosecutor said.

The Justice Department did release a media statement outlining the charges and crediting the many U.S. attorneys with a stake in the case, including San Francisco U.S. Attorney Michael Yamaguchi.

Sacramento and New Jersey -- where the Unabomber's third murder occurred -- were always considered front-runners for the prosecution, but Sacramento got the case despite a lobbying effort by New Jersey U.S. Attorney Faith Hochberg. The Justice Department is expected eventually to bring another indictment in New Jersey in connection with the 1994 bombing death of an advertising executive.

The prosecution team, however, is headed by Hochberg's chief assistant, Robert Cleary. The other two principal members are San Francisco Assistant U.S. Attorney Stephen Frecerro and Sacramento Assistant U.S. Attorney R. Steven Lapham. Frecerro, in fact, presented the case to the Sacramento grand jury, according to two lawyers following the case.

Sacramento Federal Public Defender Quin Denvir, who expects to lead Kaczynski's defense, was not prepared Tuesday to speculate about any vulnerabilities in the indictment. "We'll take a look at everything," said Denvir, already under siege by media members who camped outside his house over the weekend in anticipation of the indictment.

Death Penalty Issues
One issue certain to be raised by the indictment is the death penalty. Under the statutes adopted by Congress as part of the 1994 crime bill, Kaczynski's lawyers will have an opportunity to dissuade the Justice Department from pursuing capital punishment in the case.

If Attorney General Janet Reno decides to seek the death penalty, the Ninth Circuit U.S. Court of Appeals is fertile ground for a constitutional challenge to the statutes. In 1994, a Ninth Circuit panel found the two statutes that authorize the death penalty for mail bombing offenses to be unconstitutional in U.S. v. Cheely, 21 F.3d 914, a decision written by Judge Betty Fletcher.

The Justice Department then succeeded in amending the two statutes as part of the 1994 crime bill to address the Ninth Circuit's concerns in Cheely. The statutes, 18 U.S.C. 844(d) and 1716, were labeled overbroad by the Ninth Circuit, but Congress narrowed them to apply only to defendants who mail explosives with the intent to kill or injure.

Federal prosecutors apparently are quite confident that the amendments have erased any constitutional problems -- even for one murder predating the amendments. Justice Department officials stated in their press release that Kaczynski faces the death penalty for both the 1995 murder of Sacramento timber industry executive Gilbert Murray and the 1985 murder of computer store owner Hugh Scrutton.

Lawyers following the case have assumed that Cheely might prevent the government from seeking the death penalty for the 1985 murder, primarily because it occurred before the statute was amended. Denvir remarked Tuesday that his reading of Cheely appeared to prevent capital charges for the 1985 murder.

Denvir and other defense lawyers are less optimistic about the chances of finding the 1994 amendments unconstitutional, however, because the language appears to parallel a lengthy footnote in Fletcher's opinion. Nevertheless, defense lawyers expect the issue to be litigated, much as the defense team has done in the Oklahoma City bombing case, which involves the same statutes. There have been no rulings on the issue yet in the Oklahoma case.

"I think the government, when it passed the 1994 crime bill, sought to eliminate the question," said Indianapolis defense attorney Richard Kammen, who litigated the Cheely case. "From what I've seen out of the Oklahoma City case, not all of the questions have been eliminated."

Evidentiary Disputes Likely
Another matter likely to trigger litigation will be the government's ability to introduce evidence of other Unabomber -related crimes not mentioned in the indictment. At trial, prosecutors can introduce such evidence as so-called 404b material, relying on arguments such as modus operandi.

A 1995 Ninth Circuit case that produced a great deal of law on the mail bombing statutes appears to give the government support in this area.

In U.S. v. Manning, 95 C.D.O.S. 4303, the Ninth Circuit permitted federal prosecutors to introduce evidence of a 1972 explosives conviction to show a pattern in the trial of a man for a 1980 mail bombing murder in Los Angeles. Defense lawyers failed in their argument that the prior conviction occurred too far apart from the charged crime. That could be important to federal prosecutors in the Unabomber case, who may want to introduce evidence stretching back to the 1970s.

DNA evidence also may be a source of litigation in the case. The search warrant affidavit for Kaczynski's cabin unsealed last week indicates that the FBI has obtained DNA evidence from saliva taken from letters allegedly linked to the Unabomber. Frecerro, who could not be reached for comment Tuesday, may play a role in this area: He recently put on the Northern District's first DNA case in the trial of an accused jewelry store robber.

Judge is Former Prosecutor
The federal judge who may decide these issues in the Kaczynski case is U.S. District Judge Garland Burrell Jr., a 1992 George Bush appointee. The indictment was assigned to Burrell's court in Sacramento on Tuesday.

The 49-year-old Burrell is the newest judge on Sacramento's federal bench, which has yet to get an appointment during the Clinton administration. Burrell was for the most part a government lawyer before joining the federal bench.

Although Burrell had a brief stint in the Sacramento district attorney's office, most of his experience has come in civil litigation. He was deputy chief of the civil division in the U.S. attorney's office from 1979 to 1985, chief deputy city attorney from 1986 to 1990, and chief of the civil division in the U.S. attorney's office from 1990 until his appointment to the bench in 1992.

If Denvir decides he wants another judge to handle the case, Burrell could be vulnerable to a recusal motion. This is because of his lengthy tenure in the Sacramento U.S. attorney's office, which has had the Unabomber case in the investigative stage since at least 1985.

Even though Burrell, as a civil division lawyer, probably had no involvement in the case, a Ninth Circuit ruling last year made it tougher for former U.S. attorneys who take the bench to later preside over cases that were in their office. The question in Burrell's case is whether the Ninth Circuit's reasoning applies to supervisors in a U.S. attorney's office who later become federal judges, or just to the U.S. attorney.

The legal wrangling in the case may not begin for another week or so. Kaczynski cannot be transferred to California until a removal hearing is held in Montana, where he remains in custody.

(The Recorder is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.