THE NORTH VERDICT : Juror Distaste for Higher-Ups Seen in Verdict

It found him three times a felon, but the jury that sat in judgment of former National Security Council aide Oliver L. North also demonstrated considerable sympathy for the central theme of his defense--that North was not the master conspirator of the Iran-Contra scandal but only an instrument of higher authorities.

And at least in the eyes of former prosecutors and experienced defense lawyers, Thursday’s verdict of guilty on three charges and not guilty on nine others was yet another demonstration that American juries can be smarter than their critics--able to sort through tangled cases that experts predict will befuddle them.

Prospective jurors in the North trial were accepted only if they had no knowledge of the widely publicized case. That led some critics to suggest at the outset that individuals so isolated and out of touch with current events could never understand the intricate chain of events or grasp the fine points of applicable law.

Indeed, only one member of the final panel had education beyond the high school level.

Careful Distinctions

Yet in rendering their verdict after 12 days of deliberations, the jurors appear to have made some fairly careful distinctions among the complex charges.

“It seems as if what they were doing was acquitting him where there was evidence of higher authority,” said Jamie Gorelick, a prominent white-collar defense lawyer. “It sounds as if his defense that he was doing what he was told to do was well taken.”

Often, noted Judge Leonard B. Sand, a long-time trial judge in U.S. District Court in Manhattan, “it’s possible by sifting through the evidence and the charges to find the jury’s reasons” for convicting on some counts, acquitting on others.

In this case, noted former Justice Department official Victoria Toensing, the jury seems in particular to have shown distaste for the prosecution’s use of North’s one-time boss, former National Security Adviser Robert C. McFarlane, as a witness.

Unusual Plea Bargain

“To offer the higher-up a plea bargain is very difficult if he’s then going to come in and testify against his subordinate,” Toensing said. “Most of the time, prosecutors don’t do that.” The more common practice is to strike a bargain with subordinates to obtain their testimony against higher-ups.

McFarlane pleaded guilty last year to four misdemeanor counts of misleading Congress about the Iran-Contra scandal and was sentenced shortly before he testified in North’s case to pay a $20,000 fine. He also received a two-year sentence, which was suspended, meaning that he will not have to spend any time in prison.

Of the 12 charges on which North was indicted last year, four of them related to letters that North drafted for McFarlane to send to Congress. North was acquitted on all four counts.

The letters falsely stated that North was not involved in efforts to aide the Nicaraguan rebels. During the trial, McFarlane told the jury that North had written the letters, but he insisted that he bore “full responsibility” for them.

At that point, prosecutor John W. Keker expressed open exasperation with McFarlane--his own witness. “Mr. McFarlane,” he said at one point, “you already have pleaded guilty. It is Col. North who is on trial here.”

North, testifying in his own defense, told the jury that he had urged McFarlane not to send the letters and simply to refuse to respond to congressional inquiries about North’s activities. McFarlane, he said, rejected that advice.

A fifth charge on which North also was acquitted involved a meeting with members of Congress in the White House Situation Room in which North again denied being involved in efforts to aid the Contras. In that case, North testified, he was acting under orders of his new boss, John M. Poindexter, who had replaced McFarlane. Poindexter, who has also been indicted, did not testify at North’s trial.

Split verdicts in complicated cases are a common occurrence, one that prosecutors often count on in drafting their indictments, Toensing said. “It’s a group dynamics thing,” she said. “You give the jury enough to sort of sit back and toss a few away,” she said.

“There’s just intense pressure to compromise” once the jury begins deliberating, said Gorelick. “What a defense lawyer can do to try to prevent it is impress on juries that the defendant is going to be a felon whether it’s one count or 12.”

Perhaps surprisingly, such a jury decision often has little impact on the kind of sentence a defendant receives.

North, for example, was charged with 12 different crimes. In theory, had he been convicted of all counts, he could have been sentenced to 60 years in prison. And in theory, on the three charges on which he was convicted, he could be sentenced to 10 years.

In practice, judges in federal courts almost never sentence defendants to serve consecutive sentences on each conviction. Instead, they order the sentences to be served simultaneously.

So even if North had been convicted of all counts, he probably would not have been sentenced to more than five years in prison--the sentence for most of the counts against him. And because one of the three counts on which he was convicted carries a maximum five-year sentence, he still could receive such a sentence.

THE OLIVER NORTH VERDICT Convicted on three charges:

Obstruction of Congress and destruction of records:

Count 6--Obstructing Congress in November, 1986, by creating false documents and by altering, destroying and removing National Security Council files. (The jury found that North was not the primary instigator of these acts, but was guilty of aiding and abetting their accomplishment.)

Maximum penalty: 5 years in prison; $250,000 fine.

Altering and destroying records:

Count 9--Altering, concealing, destroying and removing documents from the White House in November, 1986.

Maximum penalty: 3 years in prison; $250,000 fine.

Illegal enrichment:

Count 10--Receipt of an illegal gratuity from retired Air Force Maj. Gen. Richard V. Secord. The indictment said Secord gave North a security system worth $13,800 for his home.

Maximum penalty: 2 years in prison; $250,000 fine.

Total maximum penalties: 10 years in prison; $750,000 fine.

Acquitted on nine charges:

Obstruction of Congress and false statements to Congress:

Count 1--Obstructing Congress with false responses to congressional committees on Sept. 5, 1985, Sept. 12, 1985, and Oct. 7, 1985, regarding his efforts to solicit funds for the Contras and to help resupply them while a congressional ban was in place.

Maximum penalty: 5 years in prison; $250,000 fine.

Count 2--Making false statements to the House Intelligence Committee on Sept. 5, 1985, regarding his efforts to solicit funds and other support for the Contras and regarding his efforts to organize military activities for the Contras.

Maximum penalty: 5 years in prison; $250,000 fine.

Count 3--Making false statements to the House Foreign Affairs Committee on Sept. 12, 1985, regarding use of his influence to solicit funds for the Contras and to facilitate movement of supplies to the Contras.

Maximum penalty: 5 years in prison; $250,000 fine.

Count 4--Making false statements to the House Intelligence Committee on Oct. 7, 1985, regarding National Security Council efforts to help raise funds for the Contras and his involvement in moving supplies to the rebel forces.

Maximum penalty: 5 years in prison; $250,000 fine.

Count 5--Obstruction of Congress in August, 1986, in denying at a White House meeting with members of Congress that he had given military advice to the Contras or had knowledge of private fund-raising efforts.

Maximum penalty: 5 years in prison; $250,000 fine.

Obstruction of presidential inquiries and false statements to the attorney general:

Count 7--Obstructing an inquiry by the attorney general by altering, removing or destroying White House documents and by making false statements orally to Justice Department officials on Nov. 23, 1986.

Maximum penalty: 5 years in prison; $250,000 fine.

Count 8--Making false statements to Justice Department officials that he was not involved in diverting Iranian arms-sale profits to the Contras and that Israel determined the amount of surplus funds to be given to the Contras.

Maximum penalty: 5 years in prison; $250,000 fine.

Illegal enrichment:

Count 11--Using for personal expenditures $4,300 in travelers’ checks that the Contras had given him for official expenses.

Maximum penalty: 10 years in prison; $250,000 fine.

Fraud:

Count 12--Conspiracy to defraud the United States, the Department of the Treasury and the Internal Revenue Service by using a tax-exempt organization to raise money for the Contras.

Maximum penalty: 5 years in prison; $250,000 fine.