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California and the West

Unabomb Prosecutors Emphasize Team Effort

Trial: Captain is Robert Cleary, who is praised by colleagues and former foes as diligent and willing to listen to both sides.

December 21, 1997|MARK GLADSTONE | TIMES STAFF WRITER

SACRAMENTO — They walk together down the street. They enter the courtroom together. When the judge asks a question, the three seasoned federal prosecutors simultaneously crane their necks to put their heads together.

Attorneys prosecuting alleged Unabomber Theodore Kaczynski say their interaction, both publicly and privately, reflects a real collaboration.

"It is very much a team here, a team effort," said Robert J. Cleary, a thin bearded man who is typically in the middle of the huddle as the lead prosecutor pursuing murder-by-bombing charges against Kaczynski.

Cleary is unquestionably the captain of this team. He was (and remains) the No. 2 prosecutor in the U.S. attorney's office in New Jersey when Atty. Gen. Janet Reno selected him in April 1996 to lead the government's case against Kaczynski.

Working countless hours since then with investigators, Cleary and co-counsels Stephen P. Freccero and R. Steven Lapham have assembled a stack of evidence--including Kaczynski's own diary--to tie the former UC Berkeley mathematics professor to a nationwide string of bombings that lasted 18 years.

Whether Cleary and his California-based colleagues--none of whom has tried a capital case--have the expertise to persuade the jury to call for Kaczynski's execution, should it find him guilty, remains much more of an open question. Kaczynski has pleaded not guilty, and his trial begins Dec. 29.

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Colleagues on the East Coast say that if anyone has what it takes to keep the prosecution on track and put Kaczynski on death row, it is the tireless and unflappable Bob Cleary. They salute him as a "prosecutor's prosecutor."

Similar words of praise emanate from Cleary's courtroom opponents: smart, even-keeled, diligent, tough but fair, focused and, perhaps most of all, willing to listen to both sides.

New York criminal defense attorney Ronald Fischetti cited a 1989 case that reflected the respect in which opponents hold Cleary.

Fischetti said he once squared off against him in a tax fraud case and initially underestimated the then-unknown prosecutor. Fischetti said Cleary beat him, and he gained a large measure of admiration for his courtroom foe.

Fischetti described Cleary as "one guy who is perfect for putting together a case that has so many pieces, the Unabomber case."

"This is a man who can study a case meticulously and put it together like a jigsaw puzzle and make it intelligible to a jury," he said.

Kaczynski's brother, however, sounded one of the few sour notes about Cleary. David Kaczynski, a New York social worker whose tip led authorities to his brother, complained recently that the prosecutor had let him down, perhaps misled him.

"When Mr. Cleary promised me [that] a fair and impartial evaluation of my brother's mental state would be made before a decision on the death penalty, I believed him," David Kaczynski said in an interview. Instead, he said, the decision to pursue the death penalty was made before a government psychologist talked to his family.

Cleary declined to discuss David Kaczynski's criticism. But the prosecutor's friends strike a far different chord in describing the 42-year-old New York native as someone with an inbred sense of right and wrong.

Cleary suggested that his zest for investigating a case and putting the pieces of a crime together may have come from growing up the son of a New York City policeman.

"I like being on the side that's trying to do right," said Cleary, whose father is now an attorney.

A graduate of the College of William and Mary in Virginia, Cleary received his law degree from Fordham Law School in 1980. Afterward, he was in private practice and assisted in civil litigation arising from the 1981 collapse of sky-walks at a hotel in Kansas City, Mo.

In 1984, Cleary, who one former supervisor suggested was always interested in becoming a prosecutor, joined the Justice Department in Washington as an attorney specializing in criminal tax cases.

After a three-year stint in Washington, he moved to the U.S. attorney's office for the southern district of New York, the department's flagship office. A rising star, he handled an array of tax and white-collar criminal cases.

A serious jogger, Cleary sometimes would run to his New York office from home. He is also an avid hiker. Cleary said he took a backpack trip through Patagonia on his honeymoon. His wife is on leave as a Justice Department attorney. She is expecting the couple's first child.

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In 1994, Cleary left the New York office as chief of the major crimes unit and became second in command of the federal prosecutor's office in New Jersey. He handled many of the office's day-to-day administrative duties.

Although the Unabomber case is clearly the most high-profile trial Cleary has overseen, he also supervised a celebrated New Jersey case involving a post office massacre. It led to guilty pleas and a lifetime federal prison sentence for the defendant.

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