North Seeks 6-Month Trial Delay Due to Election Impact; ACLU Urges Dismissal

Seeking to avoid a political thunderstorm during a presidential election campaign, Oliver L. North appealed Wednesday for a six-month delay in the start of his Iran-Contra trial--but the American Civil Liberties Union urged that his indictment be thrown out altogether.

Attorneys for North, objecting to the scheduled Sept. 20 trial date, argued in motions to U.S. District Judge Gerhard A. Gesell that “the intense publicity generated during the final seven weeks of a presidential campaign would deny Lt. Col. North a fair trial.”

As evidence, North’s lawyers said that the frequent references to the Iran-Contra scandal at the Democratic National Convention make it clear that Democrats plan to use the scandal as a presidential campaign issue.

In arguing for a March trial date, North’s defense team also insisted that it would be “absolutely impossible” to read through nearly 1 million pages of relevant documents before Sept. 20. Moreover, they said, the September trial date would intrude on their summer vacation plans.

Meanwhile, in an unlikely pairing of one-time adversaries, the American Civil Liberties Union joined North and his accused co-conspirators in charging that their indictments were “fundamentally flawed” and should be dismissed.

Twenty months after it first called for full prosecution of those implicated in the scandal, the ACLU argued in a court motion that the defendants’ immunized testimony before Congress last summer inevitably would be used against them in their trials in violation of their Fifth Amendment rights against self-incrimination.

The ACLU, in support of a petition also filed Wednesday by defendants North, John M. Poindexter and Albert A. Hakim, asked the U.S. Court of Appeals to overturn a lower court’s ruling in June.

In that ruling, Judge Gesell rejected the defendants’ claims that their prosecutions were tainted by their own immunized testimony. He asserted that Lawrence E. Walsh, the court-appointed independent counsel who secured the indictments of the Iran-Contra defendants, had taken “strenuous precautions to safeguard” their constitutional rights.

North and Poindexter masterminded the sale of arms to Iran and the diversion of profits to Nicaragua’s Contra rebels when North served on the staff of the White House National Security Council under Poindexter, who was President Reagan’s national security adviser. Hakim, an Iranian-born California businessman, oversaw the operations’ finances.

All three, citing their Fifth Amendment protection, had refused to testify to House and Senate committees last year until the committees guaranteed them that their testimony would not be used to prosecute them.

The ACLU, condemning those grants of immunity, asserted that the testimony of other witnesses at the trials of North, Poindexter and Hakim would be “influenced, refreshed and corrected” by what the witnesses heard the defendants say in their nationally televised appearances before Congress.

The ACLU pointed out that Robert C. McFarlane, Poindexter’s predecessor as national security adviser and a likely witness in the Iran-Contra trials, had requested a second appearance before the congressional Iran-Contra committees to rebut assertions made by North in his testimony.

“This widespread use of immunized testimony has substantially tainted the grand jury process and will inevitably taint any trial on the merits,” the ACLU asserted.

Kate Martin, director of the ACLU Foundation National Security Project, rejected suggestions that the group had placed itself in an uncomfortable position by coming to the defense of government officials whose prosecution they had once urged.

While another ACLU official acknowledged separately that the ACLU and the defendants made “strange bedfellows,” Martin said: “The Constitution’s protections have to be observed in all cases. . . . The ACLU reads the Fifth Amendment to mean what it says--that no person should be compelled to testify against him--or herself.”

Martin charged that Walsh’s efforts to avoid using immunized testimony to build his case “have not turned out to be sufficient” and the independent counsel is “running afoul of the Constitution.”

Walsh, who has long maintained that the defendants’ immunized testimony would not be used in their prosecution, did not oppose the ACLU’s joining in the petition and had no direct comment on the development.

Barry Simon, one of North’s attorneys, said of the ACLU’s action: “We’re pleased that they’ve expressed agreement on the point that we’ve been trying to make.”