High Court Lets Voiding of North Verdicts Stand

The Supreme Court handed a setback to the Iran-Contra prosecutors Tuesday, letting stand a ruling that legal experts said may well lead to the dismissal of charges against former White House aide Oliver L. North.

Without comment, the high court refused to review a U.S. appeals court decision that voided North’s convictions on three charges arising from his role in diverting proceeds from the sale of U.S. arms to Iran to help supply the rebels in Nicaragua.

The Supreme Court action will force independent counsel Lawrence E. Walsh to conduct months of hearings to prove that none of the evidence presented in North’s trial was tainted by his previous testimony before Congress.

Walsh said that he was disappointed by the high court action but is prepared to proceed with the hearings “ . . . in accordance with the decision of the court of appeals.”

North’s lawyer, Brendan V. Sullivan Jr., denounced as “outrageous” Walsh’s decision to proceed with the case.

“Col. North has been subjected to the largest, most costly criminal prosecution in the United States,” he said. The 4 1/2-year investigation has cost more than $25 million.

Several criminal law experts who have followed the North case predicted that Walsh would be unable to salvage his case and that the charges would be dismissed.

“The chances for him are very slim,” said Georgetown University law professor Paul Rothstein. “They have set a practically insurmountable burden.”

Last July, the U.S. appeals court here voted, 2 to 1, to nullify North’s convictions for lying to Congress, destroying government documents and accepting an illegal gratuity from a government contractor.

The appeals court opinion, written by two appointees of former President Ronald Reagan, said that North’s right to avoid self-incrimination may have been violated because prosecutors failed to prove that none of the witnesses had been influenced by his congressional testimony.

For one week in July, 1987, the former Marine, proud and defiant, was seen on national television as he explained his role in the Iran-Contra affair to Congress. In return, he received a promise that none of his testimony could be used against him in court.

North’s testimony was not seen by Walsh or his staff. Not only did they avoid TV and news accounts, they obtained evidence in advance and sealed it to prove that they had not learned anything from his appearance before Congress.

But the appeals court said that was not enough to ensure that North’s rights were protected.

Some witnesses, including high-level Reagan Administration officials, watched North on television and could have had their “memories refreshed” by what he said, the court ruled. If so, their testimony in his trial would have been “tainted,” requiring that his convictions be reversed, said Judges Laurence H. Silberman and David B. Sentelle.

If the Iran-Contra prosecutors want to preserve the convictions, they now have the “heavy burden” of proving that no testimony in the 12-week trial was influenced by North’s testimony before the congressional committee, the two judges said.

Walsh, a former federal judge, had asked the Supreme Court to reverse the appeals court ruling. He said that it would have a broad impact and make it “virtually impossible” to prosecute anyone who has been compelled to appear before Congress.

In refusing to hear the appeal in the case (U.S. vs. North, 90-1337), the Supreme Court justices may have believed that the lower court ruling was correct or they simply may have ignored the appeal because further hearings are pending.

Walsh and U.S. District Judge Gerhard A. Gesell now must undertake a “line-by-line review” of the evidence in the 12-week trial. This hearing is likely to take many months, attorneys said. Gesell then will rule on whether any testimony was tainted.

Washington lawyer Abbey D. Lowell said that he doubts Walsh can succeed. “I think Judge Walsh ought to think twice about going ahead . . . . The court of appeals has made it all but impossible for him,” he said.

Lowell and other experts predicted that the appeals court will also throw out the convictions of the other key Iran-Contra defendant, former National Security Adviser John M. Poindexter. In April, 1990, Poindexter was convicted on five counts of lying to Congress and obstructing an inquiry.

His attorneys have appealed those convictions to the same U.S. appeals court that voided North’s convictions last year.

Poindexter and North were accused of masterminding a scheme from the Reagan White House to use secret arms sales to Iran to supply the Contras in Nicaragua, in defiance of a congressional ban on such aid.

The U.S. appeals court has played a key role in the Iran-Contra inquiry. In 1988, the court, in an opinion by Judge Silberman, declared that the law authorizing appointment of an independent counsel was unconstitutional. That decision, if upheld, would have halted the investigation in its early stages.

But the Supreme Court reversed the ruling on a 7-1 vote, clearing the way for Walsh’s investigation.

North was sentenced to 1,200 hours of community service, which he has already performed, and a $150,000 fine.

In a separate decision, the Supreme Court ruled 6 to 3 Tuesday that a prosecutor’s removal of several bilingual Latinos from a jury did not amount to unlawful discrimination.

In a 1986 case, the court for the first time had ruled that a prosecutor’s systematic removal of blacks from a jury pool was unconstitutional. In such cases, a judge should demand from the prosecutor a legitimate, non-racial reason for such moves, the court said.

In Tuesday’s case (Hernandez vs. New York, 89-7645), the high court said that a systematic removal of all Latinos from a jury also would be unconstitutional. But it upheld a New York court’s decision to allow a prosecutor to remove two bilingual Latinos from a jury pool because, he said, they would not agree to abide by the official translation.

The prosecutor explained that he did not mean to exclude Latinos categorically and had no reason to do so because the murder victim and the witnesses to the crime were Latinos. Because the prosecutor had a “race-neutral basis” for his action, it was legal, the court said.

But attorneys for the Mexican American Legal Defense and Educational Fund in Los Angeles said that they feared the ruling sets an ominous precedent.

NEXT STEP

U.S. District Judge Gerhard A. Gesell, who presided over Oliver L. North’s trial, will conduct new hearings to determine whether testimony against North was influenced by his televised appearances before congressional committees. An appeals court ruled that a new trial must be held--or the criminal charges dismissed--if any of the evidence was tainted. If Gesell throws out the convictions, independent counsel Lawrence E. Walsh could opt to drop all charges rather than retry North.