Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, July 24, 1990                   TAG: 9007240367
SECTION: EDITORIAL                    PAGE: A-6   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

TECHNICALITIES

The former National Security Council aide - by his own admission - lied to Congress, shredded official documents, and otherwise disgraced his office and himself. But a ruling Friday by a federal appellate panel has cast doubt on whether his May 1989 criminal convictions will stick.

By a 2-1 vote, the panel dismissed outright North's conviction for altering and destroying official documents. Instead of instructing the jury that unanimous agreement was needed to convict North on the charge, the panel said, trial-court Judge Gerhard Gesell should have said such unanimity was needed regarding one or more specific documents. It's a confusing distinction, but apparently significant to the appellate judges.

By the same vote, North's convictions for accepting an illegal gratuity, and for aiding and abetting in the obstruction of Congress, were returned to the lower court. In hearings there, the appellate panel said, independent counsel Lawrence Walsh must show that no use was made of evidence tainted by North's "immune" testimony before the congressional Iran-Contra committee.

Walsh already had taken extraordinary steps to insulate himself and his staff from North's congressional testimony. Witnesses were not covered by the immunity (granted to North by the committee to get around the Fifth Amendment roadblock and compel him to answer its questions). And, of course, witnesses could testify only to their own first-hand knowledge. Still, the appeals panel reasoned, witnesses' thoughts might have been influenced, their memories jogged, by North's televised congressional testimony.

It may well be impossible for the prosecution to prove a negative, to show evidentiary purity any better than it already has. Unless the requirement is overturned on further appeals, this could be the end of the case.

The weight added to the burden of proof, in this instance, by Reagan-appointed judges, is heavy. True, the sight of a manifestly guilty lawbreaker going free on technicalities is nothing new. It is frustrating, but it's also a price Americans pay to uphold the constitutional guarantee of a fair trial. Ollie-bashers should keep in mind - as, to its credit, did the ACLU in joining the appeal - that the identity of the accused is irrelevant to the guarantee.

For that matter, it wouldn't be amiss for North himself to display a glimmer of recognition of the irony. As he continues circling the lecture circuit and speaking for GOP political campaigns, North could put in a word or two about the merits of a Constitution that he once regarded so lightly. That development would be as unexpected as it would be welcome.