Use of Old Weinberger Notes Ruled Out : Iran-Contra: A judge calls the pages dating to the 1950s ‘extraneous.’ Prosecution at perjury trial had hoped to show habit of documentation.

A federal judge Friday derailed efforts by federal prosecutors to subpoena thousands of pages of decades-old notes belonging to former Defense Secretary Caspar W. Weinberger, who is facing perjury charges in the Iran-Contra scandal.

U.S. District Judge Thomas F. Hogan said the handwritten notes, which date to Weinberger’s service in the Richard M. Nixon Administration and, in some cases, to his days as a California assemblyman in the 1950s, were “extraneous” to his upcoming trial.

Robert S. Bennett, Weinberger’s chief defense attorney, had objected to the subpoena on the grounds that it amounted to “a fishing expedition” by independent counsel Lawrence E. Walsh, who is investigating the arms-for-hostages deal of the Ronald Reagan Administration. Bennett also termed it “plain harassment.”

Prosecutors said they wanted the notes to show that he misled Iran-Contra investigators two years ago when he said he was not in the habit of making notes as a public official.

Weinberger, 75, is set to stand trial Jan. 5 on charges that he lied to Congress and prosecutors about his knowledge of the Iran-Contra affair. In addition, he is accused of trying to conceal the existence of the extensive handwritten notes he took during White House discussions of the sale of arms to Iran by denying that he ever kept such records.

Prosecutors found 1,700 pages of the notes among papers he deposited at the Library of Congress. Because Weinberger maintains control over the property, a subpoena was required by the prosecution to secure them. The judge denied their request.

Of particular interest are notes of key meetings he attended while he was defense secretary from 1981 to 1987.

While Weinberger’s lawyers won the battle against retrieving old notes at a pretrial hearing, they suffered a setback when Hogan upheld government objections to the introduction at trial of a lie-detector test that Weinberger passed earlier this year. The test was administered by a private polygraph operator retained by Weinberger’s attorneys.

According to court papers, the test showed Weinberger was telling the truth when he said he had not intentionally concealed from government investigators the crucial notes on Iranian arms sale discussions. But prosecutor James J. Brosnahan argued that the lie-detector test was not objective enough, and Hogan ruled polygraphs generally are not admissible in federal courts.

In another action, Hogan said he would take steps to shield prospective jurors from being prejudiced by the results of three “mock trials” conducted by Walsh’s staff to test potential jury reaction to their evidence. Prosecutors staged the dramatic presentations behind closed doors earlier this month, using actors in the roles of witnesses and paying some Washington residents to serve as “jurors.”

Two of the three “juries” judged Weinberger guilty on all four counts with which he is charged, while the third group found him guilty on three counts. Bennett said Hogan should order Brosnahan to furnish the defense with videotapes made by Walsh’s staff of the mock jury deliberations.

While declining to do that, Hogan said he wanted names of all mock jurors so that none of their friends or relatives would be selected for Weinberger’s actual trial. The judge said he was “rather concerned” about the possibility of prejudice caused by the mock trials.

Brosnahan said a worse act of prejudice--this one against Walsh’s office--was the public criticism leveled by Atty. Gen. William P. Barr in a USA Today interview published Thursday. Barr said that “people in this Iran-Contra matter have been prosecuted for the kind of conduct that would not have been considered criminal or prosecutable by the Justice Department.” Barr did not specifically refer to Weinberger.

However, the attorney general’s comments reflected recent criticism of Walsh by Senate Republicans and some White House aides who believe Walsh’s investigation has gone on too long and has cost too much money--nearly $40 million since his appointment by a panel of federal judges six years ago.