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Poindexter trial delayed; Reagan deposition Friday

Published Oct. 16, 2005

A federal district judge Monday postponed by two weeks the trial of John M. Poindexter to provide more time to resolve a number of issues, including a potentially serious snag over 150 classified documents proposed for use as evidence. Judge Harold H. Greene delayed the start of the trial to March 5 from Feb. 20 to allow lawyers for the independent prosecutor, Lawrence E. Walsh, and the defense to solve problems over the secret papers from the executive branch and other issues.

The delay is the second for the trial, originally set for late January.

The earlier delay was to resolve questions about whether former President Ronald Reagan should be subpoenaed and compelled to turn over excerpts of his private diaries.

Poindexter, a retired Navy rear admiral, served as Reagan's national security adviser from December 1985 until he resigned in November 1986.

He faces five charges, including accusations he obstructed congressional inquiries and made false statements about the sales of arms to Iran and diversion of proceeds to the Nicaragua rebels at a time when Congress had banned such assistance.

Greene announced after a hearing Monday that he would take Reagan's videotaped testimony in a deposition at the Los Angeles Federal Courthouse on Friday.

The judge's comments about problems concerning classified documents were the first public acknowledgement that a dispute exists over a large quantity of secret papers.

Neither the prosecution nor the defense has described what subjects are addressed in the disputed documents.

But about 20 documents relate to Reagan's role in the Iran-Contra affair, and these will be the subject of a hearing today to determine whether they can be declassified for use at the deposition, according to people who have read the papers.

The rest cover a range of Iran-Contra matters.

The judge rejected a proposal by Theodore B. Olson, one of Reagan's lawyers, to hold the deposition in Reagan's Los Angeles office suite.

Olson said he wanted to avoid a "circus carnival environment."

Testimony by a president or former president in a judicial proceeding is highly unusual, although two former presidents, Jimmy Carter and Gerald R. Ford, gave videotaped testimony in criminal trials.

Unlike Reagan, however, they were not asked about their conduct in office.

The judge has held one hearing in private to consider problems related to classified documents that both sides hope to use in the trial.

He said in a footnote to an order issued last week that the process "has gone well and thus far without significant difficulty."

A conflict over classified documents is potentially grave because it could prompt Greene to dismiss some or all of the charges against Poindexter.

That could happen if the judge determined Poindexter is entitled to use specific secret documents, and if the prosecution cannot substitute unclassified material.

On Friday, lawyers for Reagan said he would comply with the order that he testify on videotape in Poindexter's trial.

The deposition would mark the first time Reagan has appeared as a witness in a criminal trial in the Iran-Contra affair.

In a brief filed with the court Monday, seven news organizations asked the judge to open the deposition to the public.

The brief, signed by Patrick J. Carome, a lawyer representing the news organizations, said the courts have granted public access to all aspects of criminal trials.

Carome asked the judge to allow public attendance because the witness is "a former president who is being called for the first, and perhaps only, time to a court to describe his role and understanding of the events in question."

The news organizations seeking access to the deposition are Cable News Network, Capital Cities/ABC, CBS, NBC, the New York Times Co., The Times Mirror Co. and the Washington Post.

Lawyers for the independent prosecutor, Reagan and the Justice Department said the testimony should be taken in private to guard against the inadvertent disclosure of national security information.

Reagan's lawyers also asked the judge to seal the videotape until it is shown to a jury. Greene appeared reluctant to open Reagan's deposition.

"I would find it doubtful that the press could be there," he said. He directed all sides to give him briefs on the subject by today.

Despite the attention surrounding Reagan's deposition, it is routine for depositions in many court cases to be taken in private.

With the issue of Reagan's appearance as a witness settled, Greene seemed unwilling to press the former president further to turn over excerpts of his diaries to Poindexter.

Several times during the hearing he asked defense lawyers why they needed the diaries when Reagan himself was testifying.

Reagan has invoked executive privilege in refusing to comply with the judge's order that he turn over the diaries, a privilege claim that Greene has said is weakened because President Bush has not also asserted the privilege with respect to the diary material.

But the judge said Monday it is up to Poindexter to demonstrate that the diary material is relevant.