Supreme Court lets stand ruling on Oliver North

WASHINGTON -- The Supreme Court Tuesday let stand an appeals court decision vacating the convictions of former Marine Lt. Col. Oliver North for his role in the Iran-Contra scandal.

The court, without comment, refused a request by independent counsel Lawrence Walsh to review a 2-1 decision of the U.S. Circuit Court of Appeals for the District of Columbia, which set aside two of North's convictions and overturned the third on the grounds he did not get a fair trial.

Walsh immediately announced he would conduct an exhaustive review of the evidence at North's trial as required by the appeals court, rather than drop the charges.

'We are, of course, disappointed that the Supreme Court would not take the North case at this time,' said Walsh. 'We shall proceed with the remand in accordance with the decision of the court of appeals.'

The controversy centered on what steps the government must take to ensure that testimony compelled under a grant of immunity before congressional investigators is not later used at a criminal trial.

The circuit court ruled that the government violated North's Fifth Amendment rights by forcing him to testify before Congress in 1987 after granting him immunity, and later trying him on 12 related counts without properly questioning witnesses to ensure they were not influenced by North's immunized testimony.

On May 4, 1989, North, a former National Security Council aide, was convicted of three felony counts for his role in the Iran-Contra scandal, which involved the secret shipment of arms to Iran in an effort to free U.S. hostages, with the profits being funneled to the Nicaraguan Contra rebels when such aid was banned by Congress.

North was found guilty of one count each of obstructing a congressional inquiry, destroying government documents and receiving an illegal gift in the form of a security system for his home. He was acquitted of nine other charges.

North was sentenced to a three-year suspended prison term, two years' probation conditioned on performing 1,200 hours of community service, and a $150,000 fine.

On July 20, 1990, the appeals court set aside the convictions. The one count it also overturned, involving the destruction of government documents, was not being challenged by the government.

The appeals court has ordered the government to conduct a 'witness by witness' review of the 89 people who testified before the grand jury that indicted North, and the 32 trial witnesses to determine the 'content' and 'sources' of their testimony.

If the court finds that any witness at trial used North's immunized testimony before Congress in any fashion, and that the error was not 'harmless,' a new trial would be ordered.

If a witness at the grand jury stage is found to have used the immunized testimony in more than a 'harmless' manner, the charges must be dropped.

Walsh contends the appeals court order is so strict it would virtually preclude anyone compelled to testify before Congress from ever coming to trial.

At North's trial, witnesses were expressly told to disregard anything they might have heard during his six days of nationally televised testimony before Congress in July 1987. But the circuit court said that order by U.S. District Judge Gerhard A. Gesell was insufficient to prove that the fruit of the government's compelled testimony was not utilized to prosecute.

The circuit court based its ruling on the Supreme Court's 1972 Kastigar vs. United States decision, which allowed the government -- by granting immunity -- to compel testimony from an unwilling witness who invokes his Fifth Amendment privilege against self-incrimination.

'The Fifth Amendment requires that the government establish priorities before making the immunization decision,' the circuit court wrote. 'The government must occasionally decide what it values more: immunization . or prosecution. If the government chooses immunization, then it must understand that the Fifth Amendment and Kastigar mean that it is taking a great chance that the witness cannot constitutionally be indicted or prosecuted.'

The standard proposed by the D.C. Circuit requires an exhaustive review of evidence that would 'far exceed' North's 12-week trial in both 'length and complexity,' the government said.

Walsh said the circuit court has painted the government into a corner that would make it virtually impossible to both compel testimony at public hearings and carry on criminal prosecutions.

The government has conferred immunity such as that granted North on more than 300 witnesses at congressional hearings and other fact-finding panels the past 20 years in cases involving narcotics trafficking, assassinations, organized crime and government fraud and mismanagment.

Had the appeals court standard been in effect, it would likely have forced federal prosecutors to choose between criminal trials or congressional inquiries in many of those instances and in such scandals as Watergate, ABSCAM, misconduct at the Department of Housing and Urban Development and the savings and loan fiasco, Walsh claimed.

North's lawyer, Brendan Sullivan, said the appeals court followed established law in finding North's rights were violated. He noted that Walsh had warned Congress before North's testimony there that a grant of use immunity would create 'serious -- and perhaps insurmountable -- barriers to the prosecution.'NEWLN: North also appealed to the high court, asking that the two convictions in question be completely overturned -- as opposed to vacated -- because of technical trial errors. But the court also refused to hear North's appeals. ------NEWLN:90-1337 United States vs. Oliver L. NorthNEWLN:90-1501 Oliver L. North vs. United States