A Big Break For Ollie

The ghost of the congressional Iran-contra hearings has long hung over the cases of key figures in the scandal. Last week the ghost was haunting the prosecutors of Oliver North. A three-member appeals court in Washington overturned one of North's three convictions. The court sent the other two back % to federal Judge Gerhard Gesell for him to determine whether North's testimony at congressional inquiries into the scandal had in effect been used against him by the grand jury that indicted him, by the staff of independent counsel Lawrence Walsh or by any of the prosecution's 29 witnesses. Such tainting could mean a new trial or the dropping of all charges against the former National Security Council aide.

The judges threw out North's conviction for destroying government records, ruling that Gesell had made two mistakes in instructing the jury; both were highly technical. More broadly, the panel found that Gesell should have held more extensive pre-trial hearings to determine whether the evidence to be used during the actual trial had been "tainted" by witnesses' recollections of North's congressional testimony, for which he had been granted immunity. Gesell was ordered to conduct hearings "witness-by-witness" and "if necessary, line-by-line" that, said the majority, might "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 unexpected reversal came from two Reagan appointees, judges David Sentelle and Laurence Silberman. A strong dissent came from Judge Patricia Wald, a Carter appointee, who insisted, "North received a fair trial -- not a perfect one but a competently managed and a fair one."

It is now up to Walsh to decide whether to appeal to the full circuit court, take his case directly to the Supreme Court or go along with the tedious hearings. If they are held, Gesell will have to determine if North's other two convictions, for obstructing Congress and accepting an illegal gift, should also be dropped. Whatever Gesell decides, the ruling raises a troubling question about the congressional probes of the scandal: Did the lawmakers' haste to hold sensational hearings guarantee that the culprits would go unpunished?