WASHINGTON -- A federal judge voiced deep doubts yesterday that the Iran-contra prosecutor can salvage any criminal case against former White House aide Oliver L. North, but he agreed to allow another -- probably final -- attempt.
U.S. District Judge Gerhard A. Gesell told Michael R. Bromwich, a lawyer for the prosecutor, that there was only a "slight possibility" that even "the ablest group of lawyers in the world" could save the case in the wake of a sweeping legal victory for Mr. North in the federal appeals court here 10 months ago.
When Mr. Bromwich promised to give it "our best shot," the judge responded with a lecture about the legal difficulties ahead and said some sympathetic things about Mr. North, noting his years "under the gun" of the criminal case growing out of the Iran-contra scandal.
The judge praised Mr. North for the "conscientious" way, "highly to his credit," that he carried out his community service sentence of 1,200 hours in an anti-drug center for inner-city youths here.
Then, the judge wondered "what it is we're trying to accomplish here."
With tones of resignation in his voice, the judge, who will be 81 years old tomorrow, remarked: "We're unfortunately on our way again."
Judge Gesell said he would order Mr. North's former boss, former National Security Adviser Robert C. McFarlane, to take the stand in September to describe the background of the testimony he had given against Mr. North at the trial two years ago. Mr. McFarlane testified against Mr. North as part of a deal in which he was allowed to plead guilty to four minor crimes for his role in the scandal.
Because Mr. McFarlane probably was the prosecution's most important witness, the judge said, a new probe of the evidence he gave would provide a good test of whether the case against Mr. North was unconstitutionally "tainted."
The "taint," if there was one, would be the result of the use at trial of any evidence that could be traced to or was shaped by what Mr. North had told Congress in 1987 hearings under a promise of legal immunity. "If as much as one witness at the trial is disqualified" by such a taint, the judge said, "that's the end of the matter."
Judge Gesell bluntly told Mr. Bromwich that prosecutors have "a very heavy burden to establish" that there was no taint, using standards set by the U.S. Circuit Court of Appeals in the North case.
One of Mr. North's lawyers, Barry S. Simon, told the judge that, "on McFarlane alone, the court could end" the case. Mr. Simon said that, after examining Mr. McFarlane's trial testimony, it would be clear that the prosecution "can never meet its burden, and this case can end."
The judge hinted that he might see it that way, too. He said that Mr. McFarlane was "all involved, in every possible way, in the immunized testimony" that Mr. North gave. The Circuit Court, in ordering a wide-ranging probe into possible taint at Mr. North's trial, had used the McFarlane testimony as an example of the problem it saw.
A ruling by Judge Gesell that there was a constitutional taint of the trial would wipe out the two remaining guilty verdicts against Mr. North, which have only been set aside temporarily by the appeals court decision he won last summer. Those were convictions for helping others mislead Congress about the Iran-contra scandal and accepting an illegal gift for his role in the affair. A third conviction, for shredding documents, was overturned outright by the appeals court.
It would be almost impossible, prosecutors have conceded privately, to start all over to build an entirely new case against Mr. North.