In Good Hands

All those conservatives who have insisted that Lt. Col. Oliver L. North and three other figures indicted in the Iran-Contra scandal were destined to be lynched in court ought to pay close attention to a series of pre-trial rulings just handed down by U.S. District Judge Gerhard A. Gesell. Some of the rulings tilt toward the prosecution and some so favor the defense that they may make it impossible to try all four defendants, but they all prove one thing: This case is in the hands of an extremely scrupulous and evenhanded judge.

The most controversial pre-trial issues have revolved around last summer’s Iran-Contra hearings and the testimony taken by the congressional committee, often in exchange for grants of immunity. Congress promised North, Rear Adm. John M. Poindexter and Iranian-American businessman Albert A. Hakim that once they had waived their Fifth Amendment privilege against self-incrimination and testified, nothing that they said would be used against them.

While the hearings dominated daytime television, independent counsel Lawrence E. Walsh swore off TV and ordered his staff not to watch, either. Walsh methodically copied all the evidence collected before the hearings began and submitted it under seal to the court so that he could eventually show that the prosecution was not tainted by the improper use of immunized testimony. He has since acknowledged that his staff was not completely insulated from the hearings; some inadvertently saw snatches of press accounts. But last Thursday Walsh persuaded Gesell that his evidence against North, Poindexter, Hakim and a fourth defendant who testified without immunity, retired Maj. Gen. Richard V. Secord, was obtained outside those hearings.

Walsh won that round, but he lost on another crucial point. Gesell, over Walsh’s protests, ordered separate trials for the defendants, ruling wisely, in our view--that trying them jointly would trample their constitutional rights. A joint trial would have created a conflict between each defendant’s Sixth Amendment right to call witnesses, including his co-defendants, and the Fifth Amendment privilege against self-incrimination: North might defend himself, for example, by calling Poindexter and asking him about his testimony that he ordered the arms-for-hostages swap. But doing that in front of a jury also deciding Poindexter’s fate would deny him a fair trial.

Walsh now faces the daunting task of setting up four teams of prosecutors and somehow keeping each team in the dark about the work of the other teams. Separate teams are in order because once North, who is scheduled to go first, is put on trial, his prosecutors will almost certainly be exposed to some of the immunized congressional testimony. If they helped try subsequent trials, they would have to prove their cases had not been influenced by what they had already heard--a near impossibility. Even with separate prosecutorial teams, the later cases may be tainted by immunized testimony that filters out, and the charges could be dismissed.

Separate trials will aid the defense in other ways, too. Prosecutors will have to call the same witnesses and introduce into evidence the same documents four times, a logistical nightmare as well as a huge expense. And it may be far harder to prove the underlying criminal charge, that the four defendants conspired to defraud the government by diverting profits from the sale of arms to Iran to the Nicaraguan Contras. Conspiracies are proved by showing that the co-conspirators agreed to commit a crime, then that one of them committed a single “overt act” toward that end; the acts of one defendant can then be attributed to all. With only one defendant in the dock, however, it becomes harder to paint a coherent picture of a threatening conspiracy.

On issues that are still pending, like whether the defense attorneys are receiving the access that they need to classified documents being screened by an interagency government committee, Gesell has made it clear that he is willing to dismiss the cases if the government won’t do its duty. He has hurried the cases toward trial faster than Republicans might like--North’s trial could begin at the height of the fall presidential campaign--but he has shown meticulous regard for the defendants’ rights and a fine indifference to the trials’ outcome. No one could ask for more from a judge.