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Death penalty an option in trial of Kaczynski U.S. Justice Department deciding whether to seek life of Unabomber suspect


SACRAMENTO, Calif. -- As the mother of a Unabomber victim, Bessie Dudley said she had no hesitation last month when a federal prosecutor telephoned her suburban Sacramento home.

"He called and asked if I believed in the death penalty, and I said yes," said Dudley, 78.

That conversation with Assistant U.S. Attorney R. Steven Lapham came as the U.S. Justice Department is preparing to take a key step in its case against Theodore J. Kaczynski: determining whether to seek the death penalty.

Prosecutors have indicated they hope Attorney General Janet Reno will resolve that question within the next several weeks. Last week, she refused comment on when the work of a Justice Department review committee would be completed.

But Reno is known to be getting input from local prosecutors, family members of victims such as Dudley, and from the family of Kaczynski himself.

The decision is likely to be made all the more difficult because of the pivotal role in the case played by members of Kaczynski's family: They helped investigators crack the case and have issued widely publicized pleas to prosecutors to spare Kaczynski's life, in part, they say, because he is mentally disturbed.

One law enforcement source, for instance, said he believes the committee is leaning against recommending the death penalty out of fairness to the Kaczynski family.

That sentiment might resonate with Reno, who is opposed to capital punishment, even though, as attorney general, she has agreed to pursue the death penalty in more than two dozen cases.

Either way, Reno's decision will frame the way the case unfolds, how the jury is selected and the type of defense mounted by Kaczynski, 54, a mathematician who lived alone for many years in the Montana wilderness and now occupies an isolation cell at the Sacramento County Jail.

"I think this is a tough call. It will have to be made at the highest level. There's a lot of pressure to seek the death penalty because of the nature of the crime," said Laurie Levinson, a former federal prosecutor who is an associate dean of the Loyola University School of Law in Los Angeles.

Kaczynski, a former University of California at Berkeley assistant professor of mathematics, was arrested at his Montana cabin last April.

A grand jury later indicted him on 10 counts of illegally transporting, mailing and using bombs.

These murder-by-bombing charges related to a 1985 bomb attack that killed Dudley's son, Sacramento computer store owner Hugh Scrutton, and the 1995 slaying of lobbyist Gilbert Murray, president of the California Forestry Association. Kaczynski also faces charges in New Jersey in the bombing death of advertising executive Thomas Mosser.

Under federal law, there is no general murder statute. The last time the federal government performed an execution was in 1963, when it hanged a kidnapper.

But a 1988 change in the law allowed for the executions of high-level drug traffickers convicted of murder. And a 1994 anti-crime law spelled out the kinds of crimesfor which the death penalty could be validly applied -- including such offenses as murder by mail bombing.

Expecting a surge in executions, the government spent $400,000 to build an execution facility at the United States Penitentiary in Terre Haute, Ind., and another $1 million to renovate a housing unit into death row.

But all the federal death penalty convictions are under appeal, so the execution facility has not been used, according to a prison spokeswoman. The method of execution would be lethal injection.

After the law was toughened, Reno issued guidelines in 1995 spelling out when the death penalty may be sought. Under Reno's policy, local federal prosecutors are directed to make a recommendation for review by the high-level committee in Washington.

The review committee is headed by John C. Keeney, acting chief of the criminal division and a career Justice Department lawyer. Among the other members are two lawyers from the criminal division and a representative from the staff of Jamie Gorelick, the deputy attorney general. The Justice Department won't disclose the names of panel members besides Keeney.

A similar committee in the Oklahoma City bombing case recommended the death penalty for defendants Timothy McVeigh and Terry Nichols, and the government filed a formal request for it in October 1995.

Pub Date: 12/27/96

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