One At A Time

As he tries to ensure a fair trial for the four Iran-contra defendants, Federal Judge Gerhard Gesell has criticized the congressional committees that investigated the affair for vastly complicating his chore. The committees "were interested much more in what the President knew," Gesell growled last month. "They were chasing a rabbit they never caught." Last week he hinted that some of the smaller quarry -- Oliver North, John Poindexter, Richard Secord and Albert Hakim -- may also elude the criminal snares set by Independent Counsel Lawrence Walsh.

In its determination to bare the scandal, Congress granted immunity to all the defendants except Secord. That means their testimony cannot be used against them in a trial. But since the four are charged with conspiracy, each defendant has the right to use statements of his coconspirators that might show his own innocence. Last week Gesell ruled that the way out of this dilemma is to hold four trials. A jury thus could listen to immunized testimony that might help the defendant on trial in one case, while this testimony could not be used in the trial of the man who gave it.

Now Walsh must present the same evidence four times, using three separate % staffs (except in the Secord trial). That is because prosecutors trying one case are not supposed to know what immunized testimony was used in a previous trial -- a practical absurdity. Conceded a prosecution source: "There may be only one trial."

Walsh told Gesell his first target would be North. But he asked Gesell to consider a novel alternative: trying North and Poindexter together but with two juries (one would leave the courtroom when the immunized testimony of its defendant was discussed); then doing the same with Secord and Hakim.

Should Congress have held no hearings until Walsh had his cases all set? Arthur Liman, the chief Senate committee lawyer, does not think so. "If Congress had not given immunity, the country would still be totally in the dark about what happened," he says. Ironically, while the defendants protested the hearings as unfair, their hours on TV may eventually set them free.