Walsh to ask top court to look at North case

November 28, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The special Iran-contra prosecutor, rebuffed by the full appeals court here yesterday, prepared to move on to the Supreme Court in what may be his last chance to revive the criminal convictions of former White House aide Oliver L. North.

The U.S. Circuit Court of Appeals, with 10 of its 12 members voting, refused to reconsider a sweeping decision in Mr. North's favor by a three-judge panel of that court last July. The vote was 8-2 to leave that ruling intact.

At the same time, the Circuit Court released a new opinion by its three-judge panel that appeared to expand Mr. North's victory, thus making it even more difficult for Independent Counsel Lawrence E. Walsh to get the convictions reinstated or even to get a chance to try Mr. North a second time.

Mr. Walsh said in a brief statement that his staff was studying the Circuit Court's actions but added that "in all probability" he would try to get the Supreme Court to review the case "because of the importance of the questions involved."

Chief Circuit Judge Patricia M. Wald, one of the dissenters in the appeals court yesterday, said in her opinion that "it is difficult to think of a case of more exceptional importance." She said the case had "ominous" implications for future criminal trials of government officials who have been prosecuted after they have first appeared during a congressional investigation to answer questions under a grant of legal immunity -- as Mr. North did.

The Supreme Court has the discretion to grant or deny review of any appeal in the North case. It may not act on a Walsh appeal until next spring, at the earliest.

The Circuit Court panel, in the ruling left intact by the full Circuit Court yesterday, had set aside Mr. North's convictions in the Iran-contra scandal and ordered a hearing to test whether his case had been "tainted" by the unconstitutional use against him of testimony he gave to congressional investigators under a promise of immunity during televised 1987 hearings.

Prosecutors must prove there was no "taint" of the prosecutors, of witnesses before the grand jury which charged Mr. North, or of witnesses at his trial last year, or else charges against him must be dismissed.

Although Mr. Walsh's staff would get a chance at such a hearing, the ground rules the Circuit Court panel laid down for that hearing make it difficult to prove there was no misuse of Mr. North's testimony. Every word of testimony by every witness would have to be gone over to test for "taint" traced to Mr. North's testimony under immunity before Congress.

The panel also said yesterday that there would be "taint" even if a witness were merely "motivated" to testify by Mr. North's testimony.

If Mr. Walsh does not persuade the Supreme Court to review the case or ultimately loses an appeal there, he then would have the option of going through the hearing ordered by the panel -- an apparently long-shot chance of reinstating the convictions -- or dropping the case.

Mr. Walsh in September had asked the three-judge panel to reconsider its ruling and had asked the full 12-member court to review the panel decision. Both refused to do so yesterday. The panel, in a new, unsigned opinion, changed its mind on only one secondary point.

Reacting to the prosecutor's plea for reconsideration, the panel's 2-1 majority conceded that a decision by Congress to grant legal immunity in order to bring out information to "expose wrongdoing" among key government officials may have a "cost" in making it harder for a prosecutor to follow up with a criminal case against the immunized witnesses.

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