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Kaczynski's Lawyers Challenge Death Penalty Law

September 17, 1997|MARK GLADSTONE | TIMES STAFF WRITER

SACRAMENTO — Challenging the federal death penalty as unconstitutional, attorneys for Unabomber suspect Theodore Kaczynski are attempting to overturn the government's decision seeking the execution of the former mathematics professor.

In documents filed late Monday, attorneys Quin Denvir and Judy Clarke maintained that the 1994 revision of the federal death penalty statute causes unconstitutional cruel and unusual punishment.

"Evolving standards of decency will eventually convince the American public that it is simply wrong and immoral to kill people, regardless whether the killing is done by an individual or the government," Kaczynski's attorneys said in papers filed in U.S. District Court.

Atty. Gen. Janet Reno in May authorized prosecutors to seek the death penalty against the onetime UC Berkeley mathematician. Among the factors that federal prosecutors cited were the "substantial planning and premeditation" that went into Kaczynski's alleged crimes and the continuing danger they believe he presents to others.

Kaczynski was arrested at his remote Montana cabin in April 1996 after an intense manhunt sparked by a series of bombings that began in 1978.

Kaczynski, 55, was indicted in Sacramento last year on 10 counts of illegally transporting, mailing and using bombs. He was charged in explosions that killed two Sacramento-area men, lobbyist Gilbert Murray in 1995 and computer store owner Hugh Scrutton in 1985.

In May, prosecutors said that should Kaczynski be found guilty of Murray's death, they would pursue his execution. The government chose not to seek the death penalty in Scrutton's killing because it occurred before the current U.S. statute was enacted.

In documents filed this week, Denvir and Clarke sought to challenge the overall federal death penalty law and, at the same time, raise questions about its application in the Kaczynski matter.

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The defense lawyers said that when Congress toughened the law in 1994, it defined the two findings needed to make a capital case: A defendant must act with the necessary intent, and there must be at least one aggravating factor that justifies the more severe sentence.

Kaczynski's attorneys argue that these two elements are missing, so he should face only life imprisonment if found guilty.

Clarke and Denvir also said Reno's death penalty notice failed to spell out the aggravating factors used as the basis for the death penalty.

For example, the government described Kaczynski as creating a risk of death to other people. But, his lawyers asked: "Does the government allege that every person who came near Mr. Kaczynski while he allegedly transported an explosive from Montana to Oakland was subject to a grave risk of death?"

Another point of contention revolves around introducing evidence of other bombings, for which Kaczynski has not been charged.

The defense team said that since such evidence is inadmissible in the penalty phase of the trial, it should be excluded from the initial guilt phase of the proceedings "so as not to violate Mr. Kaczynski's constitutional rights to due process of law."

"A jury that hears evidence in the guilt phase that the defendant committed 12 other uncharged bombings cannot be expected to disregard the evidence in the penalty phase," they said.

U.S. District Judge Garland E. Burrell Jr. has scheduled a hearing on the death penalty question for Oct. 24. Formal jury selection in the case is set to begin Nov. 12.

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