Judge Warns of Immunity Snags in Iran-Contra Trial

The judge in the Iran-Contra case warned today that the congressional immunity granted Oliver L. North and two co-defendants could make trying the three on conspiracy charges a “practical impossibility.”

U.S. District Judge Gerhard A. Gesell raised the problem at a hearing on the difficulty resulting from immunized testimony given to Congress by North, a former National Security Council staff member; former presidential National Security Adviser John M. Poindexter, and businessman Albert A. Hakim.

Gesell made no ruling on the question of proceeding with trial, saying he expects to decide the major pretrial issues by the end of June.

But the judge told attorneys in the case that under normal trial procedures, a defendant could take the stand and be questioned by a co-defendant about testimony given earlier to Congress.

In this case, Gesell said, none of the statements given Congress under a grant of limited immunity from prosecution can be used at trial.

“As I see it, it is a practical impossibility to try the conspiracy counts. . . .” Gesell said. “If you try (the defendants) together, you violate the immunities.”

Problems in Separate Trials

Gesell said separate trials also would raise a problem because the defendants might not be able to call each other as witnesses to defend their own positions. For instance, Poindexter could refuse to testify that he authorized North’s activities in the Iran-Contra affair if subpoenaed by North’s lawyers.

North, Poindexter, Hakim and retired Air Force Maj. Gen. Richard V. Secord are charged with conspiring to turn a lawful presidential directive to sell arms to Iran into an illegal enterprise, which included profiting from the weapons sales and assistance to the Nicaraguan Contra rebels during a ban on such aid. Secord did not testify under an immunity grant.

Barry Simon, attorney for North, argued at the hearing that the case should not go forward because the prosecution staff of independent counsel Lawrence E. Walsh and grand jury witnesses were exposed to the immunized testimony.

“Their testimony is being used against them,” Simon said. “There’s no way of unscrambling that problem. It is a problem that absolutely prevades the case.

“You can’t unscramble what witnesses now know after what they had seen and heard from immunized testimony, and what they (knew) before.”

Other Charges Remain

While the conspiracy counts are the main charges, other charges against the three include theft of government property, acceptance of an illegal gratuity, obstruction of a congressional investigation, false statements to Congress and obstruction of a presidential inquiry.

Herbert J. Stern, a former federal judge arguing for the independent counsel, said one defendant could question another without bringing the immunized testimony into the case.

For example, he said that if Secord wanted to use immunized testimony from North--in hopes of winning acquittal--”all General Secord has to do is ask Colonel North for the same facts, and out it comes.”

Gesell said he would not allow four separate trials to solve the problem, commenting, “four individual trials is ridiculous.”