Court Overturns 1 North Verdict; Poindexter Conviction in Doubt

A federal appeals court panel set aside Oliver L. North’s Iran-Contra convictions Friday, reversing one outright and ordering a “witness-by-witness” review of whether all three were impermissibly tied to testimony he gave Congress under a grant of immunity.

The panel, divided 2 to 1, suggested that North’s Fifth Amendment right against self-incrimination may have been violated.

The ruling also could signify trouble ahead for the Iran-Contra case against John Poindexter, who was convicted of five felonies in April. Like North, Poindexter had given immunized public testimony to Congress in 1987.

North, in Baton Rouge, La., campaigning for a Republican Senate candidate, said he was “very pleased” by the ruling and added, “I certainly hope the special prosecutor ends it now. We’ve been under virtual siege.”

The ruling was also celebrated by congressional supporters of the former Marine lieutenant colonel and White House aide who became a national figure during the televised congressional hearings.

Independent counsel Lawrence E. Walsh, who is supervising the continuing Iran-Contra investigation, said, “Everyone familiar with these proceedings has recognized the difficulties presented by the grant of immunity by Congress.”

Walsh could seek review of the ruling by all 12 members of the appeals court or he could go directly to the Supreme Court.

The appeals panel reversed one of North’s convictions, blaming faulty jury instructions from U.S. District Judge Gerhard Gesell, the trial judge in the North case. On reversal, the only way the conviction could be reinstated would be through a new trial.

The appeals court reversed North’s conviction for altering and destroying National Security Council documents, saying Gesell had given an erroneous instruction to the jury on how to weigh evidence of what superiors might have told North to do.

The panel “vacated and remanded to the District Court” all three convictions, telling Gesell he “must hold a . . . full” hearing on the tainted question. Gesell could reinstate the two remaining convictions if he found there had been no taint.

Gesell’s inquiry “must proceed witness by witness; if necessary, it will proceed line by line and item by item,” the appeals court said in an opinion supported by judges Laurence Silberman and David Sentelle, both Reagan Administration appointees.

Chief Judge Patricia Wald, a Carter Administration appointee, dissented, saying she was “satisfied that North received a fair trial” and received “all of the constitutional protections to which he was entitled.”

In six days of compelled testimony in July, 1987, North admitted to many of the activities for which he was later charged with crimes.

The government must show by “a preponderance of the evidence” that no use was made of North’s immunized testimony either by witnesses or by the Iran-Contra prosecutor’s office, said the appeals panel. The hearing would deal with the testimony of witnesses before the grand jury that indicted North, as well as with witnesses who testified at his trial.

A jury convicted North on May 4, 1989, of three of the 12 charges he faced:

* Aiding and abetting an obstruction of Congress in connection with a November, 1985, shipment of Hawk missiles to Iran.

* Altering and destroying NSC documents detailing his efforts to provide military assistance to the Contras.

* Accepting an illegal gratuity, a $13,800 home security system, from retired Air Force Maj. Gen. Richard Secord, whom North had enlisted to get arms to the Contras and assist the Reagan Administration’s initiative toward Iran.

President Bush, who was vice president at the time of the Iran-Contra affair and had dealings with North, was told of the ruling, his spokesman said, but the White House declined any comment.

In the Poindexter case, assertions of taint are “a big issue in our appeal” and the former national security adviser is “very pleased” with the ruling, said Richard Beckler, one of his lawyers. Beckler’s office and Iran-Contra prosecutors are preparing documents for the appeal in the Poindexter case.

North and Poindexter were convicted of concealing from Congress the U.S. government’s role in a legally questionable November, 1985, shipment of Hawk missiles to Iran. A presidential document approving the shipment wasn’t drawn up until after the missiles were delivered.

North’s conviction for destroying NSC documents led to his Marine $23,100-a-year pension being revoked. A Marine Corps spokesman said that if North’s attorney requests a review, “that would be something that the Marine Corps would have to look at.”

The potential for taint was high in the North case because his immunized testimony “was carried live on national television and radio, replayed on news shows and analyzed in the public media,” said the appeals court.

The majority ruling said that in regard to detailed hearings on the admissibility of testimony in such a case, “we readily understand how court and counsel might sigh prior to such an undertaking.”

It “could consume substantial amounts of time, personnel, and money, only to lead to the conclusion that a defendant--perhaps a guilty defendant--cannot be prosecuted,” the panel added.

“Yet the very purpose of the Fifth Amendment under these circumstances is to prevent the prosecutor from transmogrifying into the inquisitor, complete with that officer’s most pernicious tool--the power of the state to force a person to incriminate himself,” it concluded.

“It was an absolutely correct decision,” said Sen. Orrin G. Hatch (R-Utah). Hatch said the independent counsel is “out of control in the Iran-Contra matter,” with “young, hotshot attorneys . . . trying to make their reputations at the expense of” North and others.

“One of the toughest problems . . . the prosecution had was separating evidence that was not extracted from North when he appeared before Congress in his trial,” said Rep. Henry J. Hyde (R-Ill.), who was a member of the Iran-Contra committee.

“I’m resisting screaming out hallelujah,” said Rep. Robert K. Dornan (R-Garden Grove), who called North “an honorable man.”