WASHINGTON — The judge who presided at the trial of former White House aide Oliver L. North said Friday he doubts that North's conviction in the Iran-Contra scandal can stand up under rules set by the U.S. Circuit Court of Appeals.
U.S. District Judge Gerhard A. Gesell, in his first remarks since the appellate court last year set aside North's 1989 convictions pending hearings by Gesell, said it looks like "the end of the case" if the testimony of any prosecution witness proves to have been influenced by North's forced testimony given under immunity to Congress in 1987.
The hearing Friday was the first on the matter since the appeals court ruling last July. The U.S. Supreme Court let that decision stand last month.
"It's a pretty big can of worms," Gesell said. "If one witness is disqualified under the standards set by the court of appeals, that's the end of the case."
However, Gesell said that he would conduct an evidentiary hearing in September at the request of independent counsel Lawrence E. Walsh. The first witness to be examined at the hearing will be former National Security Adviser Robert C. McFarlane, who was the prosecution's principal witness against North.
The judge said the government "would bear a very heavy burden" in showing that the trial testimony of McFarlane, who was once North's boss, had not been affected or "tainted" by McFarlane's familiarity with North's congressional testimony two years earlier.
In a 2-1 ruling last year, the appellate court in Washington threw out North's conviction on one count involving removal of sensitive documents from the White House. On the two remaining counts of obstructing Congress and accepting an illegal gratuity in the form of a home security system, the panel set aside the convictions pending a hearing by Gesell on whether prosecutors made unfair use of North's immunized testimony before Congress.
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 testimony.
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, Judges Laurence H. Silberman and David B. Sentelle said.
Under a grant of immunity that Congress obtained for North, the government pledged that it would not use his testimony in any way to prosecute him.
Michael Bromwich, an associate independent counsel, told reporters after the hearing Friday that "we'll give . . . our best shot" to demonstrating that no tainting occurred, despite the doubts expressed by Gesell.
North's lawyer, Brendan V. Sullivan Jr., last month denounced as "outrageous" Walsh's decision to proceed with the case despite the Supreme Court's action. He said Walsh should abandon the case because "Col. North has been subjected to the largest, most costly criminal prosecution in the United States."
Gesell seemed to sympathize with that viewpoint at the hearing by telling Bromwich: "One wonders what we're trying to accomplish here."
The judge added that North "has not only been long under the gun of the existence of this litigation but he's served a part of his sentence with distinction"--the 1,200 hours of community service in a District of Columbia drug education program for youths. North was not at Friday's hearing.