The federal judge presiding over the perjury trial of Michael K. Deaver yesterday declined to dismiss portions of the five-count indictment against the former White House aide and then halted a hearing into the issue because he said he was not familiar with higher court rulings that may govern the case.
"I frankly do not know what the rule is," said U.S. District Court Judge Thomas Penfield Jackson. He said he needed to spend the weekend reading the cases.
Until that declaration, Jackson had repeatedly rejected attempts by Deaver's lawyers to dismiss portions of the indictment on grounds that prosecutors had failed to prove that section of the case.
But independent counsel Whitney North Seymour Jr. twice produced rulings that sent Jackson, who was a civil law specialist before he was named to the bench in 1982, to his chambers to read the cases.
"It's much easier on the civil side," Jackson said after one such break, noting that judges have much greater freedom in lawsuits to dismiss portions of cases than they apparently have in criminal cases.
Deaver, former White House deputy chief of staff, is charged with lying to a congressional subcommittee and a federal grand jury about contacts he made with senior Reagan administration officials as a lobbyist shortly after he left the government.
Yesterday, defense attorney Hebert J. Miller Jr. moved for acquittal, arguing that, among other things, Seymour was guilty of "egregious overreaching" in the indictments. He cited instances in which he charged that the special prosecutor had failed in 19 days of testimony to produce evidence of several contacts Deaver supposedly had.
"We don't have to prove our innocence," Miller complained as the judge ruled against Deaver.
Jackson, however, accepted Seymour's position that the government had produced other evidence that the contacts -- with then-Secretary of Transportation Elizabeth Hanford Dole and Assistant Secretary of State Gaston Sigur -- had occurred. Seymour said "it must be self-evident" that Dole "has amnesia on this" and said he could not vouch for Sigur's "credibility."
More important than his rulings on Dole and Sigur, the judge appeared to accept two key arguments offered by Seymour: that prosecutors had to produce only one other witness to testify about the meetings that Deaver allegedly failed to acknowledge and that he could not dismiss a portion of any count in the indictment if prosecutors had produced evidence supporting some portion of it.
During the trial, the prosecution has been unable to produce witnesses to several meetings described in the indictments. Jackson said he is worried that if the five full counts are allowed to stand, Deaver if he testifies, might incriminate himself.
Stating he was "sufficiently troubled" by the issue of what he could and could not dismiss from the case, Jackson ended the hearing yesterday afternoon after listening to arguments on four of the five counts. He said he will resume the hearing Monday morning.
Defense lawyers had been confident that they would gain dismissal of portions of the 17-page indictment, and Miller was clearly troubled by the judge's ruling. Miller charged that Seymour's interpretation "lets him play Russian roulette with the rights of a defendant," in effect allowing him to use Deaver to convict himself.
Earlier, when the judge appeared on the verge of dropping one of Deaver's alleged meetings from the indictment, Seymour, to the judge's surprise, interjected: "You are wrong on the law, with all due respect."
Jackson then listened as Seymour lectured him on what he believed a 1986 ruling from the Court of Appeals allowed the judge to do. "You have no have no power to deny the government" the right to keep some of the counts intact until the completion of the defense case, Seymour said.