The Trials of Prosecuting An 'Open and Shut'Case

SIX days after the arrest of a man whom investigators believe to be the elusive mail-package bomber, federal law-enforcement sources feel sure they have enough evidence for an open-and-shut case against Theodore Kaczynski.

While US prosecutors met in Washington yesterday to decide whether the former math professor will stand trial in federal court in New Jersey or California, FBI and Justice Department officials believe they have amassed overwhelming evidence against the man they now refer to as "the criminal of the century." To begin with, they intend to charge him with violating a federal postal offense that carries the death penalty, says a Justice Department source.

"I don't see any way we aren't going to win this one," says the official. "I think he is going to plead guilty to avoid the death penalty."

Yet recent legal history is rife with cases where the prosecution celebrated victory too quickly. In the O.J. Simpson case, the so-called "trial of the century," Los Angeles prosecutors held press conferences during the early stages of investigation, telling reporters the only possible defense for Mr. Simpson was an insanity plea. Simpson was acquitted in October of the murder of his former wife Nicole and her friend Ronald Goldman.

Federal prosecutors, however, prefer to compare the Unabom case to that of John Hinckley, the attempted assassin of President Reagan. Mr. Hinckley, whose crime was caught on camera and who was immediately seized by Secret Service agents outside the Washington hotel where he shot Mr. Reagan, resorted to the insanity defense at his 1982 trial to avoid the death penalty.

Specter of insanity defense

In a case like the one being assembled against Mr. Kaczynski, where the evidence appears to be overwhelming, even leading criminal defense lawyers agree that the bottom-line question becomes, "Do you plead insanity? Or do you go to prison?" says Gerald Lefcourt, a prominent defense attorney at Lefcourt and Dratel in New York. "At this point I am asking, 'What is the strategy for minimal punishment?' "

One immediate difference between the Unabom case and the Simpson and Hinckley cases, however, is money. Simpson spent millions on a "dream team" of lawyers. The financially well-off Hinckley family was able to purchase the service of top legal minds, who secured an insanity verdict.

Kaczynski has no apparent wealth or means, and he was reported to the FBI by family members who have continued to cooperate with the bureau. A lawyer speaking for family members said yesterday that the family had not tried to plea-bargain on Kaczynski's behalf with federal officials regarding the death penalty.

During today's meeting at the Justice Department, federal prosecutors will reportedly weigh evidence and decide in which federal district they could present the best case against Kaczynski.

Federal agents have leaked an enormous amount of information about the ongoing investigation to the press, including descriptions of detailed notebooks about bombmaking found in in Kaczynski's Montana cabin, the securing of two typewriters that some federal sources say match the typeface in the Unabomer's 35,000-word "manifesto" published by The New York Times and The Washington Post, and other evidence such as a partially made bomb similar to those sent to dozens of bomb victims. An FBI expert reported yesterday that five pages of writings by Kaczynski provided by his family held a "significant possibility" of being written by the Unabomber.

Leaks flow about evidence

Leaking such evidence is ordinarily considered either illegal or unethical (though it is a regular habit of most law-enforcement officials) because it can prejudice the pool of prospective jurors who must render a fair verdict in any future trial. Such practices are part of a "rush to judgment, to try the case in the media" that is damaging to the justice system, according to Judy Clarke, a defense attorney in Spokane, Wash., and president-elect of the National Association of Criminal Defense Lawyers.

Some experts say open-and-shut cases of evidence aren't always so. In the case of the Attica prison riots of 1972, when the guards were found dead, federal agents on the scene said the prisoners killed them. In fact, forensic evidence later showed, and the state did not contest, that the guards were killed in the crossfire of other guards shooting into the facility.

But in highly public cases, according to Harvard University law professor Philip Heymann, "where people are actively wondering about their own well-being, for instance opening mail that might be dangerous, it is usually acceptable to ease public fears by informing us about evidence. We were able to get a jury for Watergate and for O.J."

Justice Department sources are building a case to try Kaczynski under federal statute 1716. The statute makes it a federal crime to send, without permission, poisonous or inflammable materials that may ignite or explode upon arrival. If a death occurs as a result of the crime, a new federal law allows the prosecutor to seek the death penalty.