A federal judge challenged two counts of a seven-count indictment against suspected spy Arthur James Walker here today, saying the acts alleged apparently do not constitute crimes.
U.S. District Judge J. Calvitt Clarke deferred a decision on whether to throw out the counts after chastising prosecutors for failing "to cover all the bases."
"I think the government's indictment is defective in that it does not name all the elements of the crimes charged . . . , " Clarke said during a 2 1/2-hour hearing on pretrial motions in the case against Walker, one of four alleged participants in a spy ring involving current and former Navy men. "Why should we spend whatever time trying this case just so the appellate courts can kick it around?" the judge asked.
The hearing illustrated the extraordinary nature of the pending cases of Arthur Walker, a former Navy lieutenant commander, two other former Navy officers and a Navy seaman.
Confronted with a stack of motions several inches high from both sides, Clarke struggled with questions of how to protect the government's secrets and guarantee Arthur Walker a fair trial, given the sensitive nature and notoriety of the case.
The judge denied a defense motion to transfer the case from Norfolk to Richmond, although he said he expects selecting unbiased jurors from Norfolk would be an arduous process. Norfolk is both a major Navy base and the home of three of the defendants. Clarke left open the possibility that he would transfer the case later.
Clarke granted the request of prosecutors for two protective orders setting out stringent security procedures that defense attorneys and their client must follow in preparing the defense.
Assistant U.S. Attorney Tommy E. Miller said defense attorneys had damaged an ongoing investigation into the alleged spy ring by showing documents in Arthur Walker's case to "potential coconspirators."
Clarke also granted a defense motion to close a hearing Friday on whether to suppress a statement Arthur Walker made to FBI agents before his arrest.
Miller described the case as "a very limited conspiracy" between Arthur Walker and his brother John Walker, the alleged leader of the spy ring.
The two counts of the indictment questioned by Clarke charged Arthur Walker with unauthorized possession of documents relating to the country's national defense. Clarke said prosecutors appeared to have erred in not charging that Walker had reason to believe the information "could be used to the injury of the United States or the advantage of any foreign nation."
He said previous cases indicated "release of classified information in itself is insufficent" for an espionage charge.