The judge presiding over the perjury trial of former White House aide Michael K. Deaver told his lawyers yesterday they may not invoke Deaver's claim that he was an alcoholic as a defense in their final arguments to the jury.
U.S. District Court Judge Thomas Penfield Jackson said insufficient evidence was developed in Deaver's six-week long trial to support what had been a key aspect of his defense. "There is no evidence of alcoholism," Jackson declared after a two-hour session on what he will tell the jury.
Deaver's lawyers were expected to argue today that the memory of the Reagan administration's former deputy chief of staff was clouded by his drinking and that his failure to recall meetings in congressional and grand jury testimony therefore was truthful and not criminal.
But Jackson, who had agreed several months ago to allow Deaver to offer the controversial defense over the objections of prosecutors, declared yesterday that what evidence existed of Deaver's alcoholism consisted of "heresay . . . self-serving declarations."
"It's not enough to go to the jury . . . . It's not going to the jury, I'm taking it away," the judge said.
Deaver, who is accused of five counts of lying to a congressional subcommittee and a federal grand jury, suddenly rested his case Monday without offering a defense. A central part of that defense was to have come from medical experts who, defense lawyers said, would tell the jury about the impact alcoholism would have on a witness.
In excerpts from his forthcoming book, "Behind the Scenes," that appeared in Life magazine, Deaver said he was drinking as much as a quart of Scotch and consuming three packs of breath mints a day shortly before he left the White House May 10, 1985, to establish a lobbying firm. He later said he had exaggerated how much he had drunk and that he had removed the assertion from the book.
Defense lawyer Randall J. Turk conceded yesterday that there had been no "medical evidence" about Deaver's alcoholism from the 52 witnesses who testified for the prosecution. But Turk maintained that three women who worked at Deaver's firm had testified about the impact of his drinking.
When Stephen L. Braga, a Deaver lawyer, asked Jackson if he would keep the defense from raising the issue in final arguments today, Jackson said that he did. "The issue of alcoholism is not to be injected into arguments," Jackson said.
In his opening argument to the jury, chief defense lawyer Herbert J. Miller Jr. had portrayed Deaver as a gravely ill man who was lucky to be alive. He had joined Alcoholics Anonymous and was a recovering alcoholic, Miller said.
Under the timetable laid out by the judge yesterday afternoon, prosecutor Whitney North Seymour Jr. and Miller make their final arguments to the jury today. Jackson will deliver his charge to the jury Friday morning who will presumably begin deliberating Deaver's fate.
The judge also upset defense lawyers yesterday with his statement that he intends to tell the jury that prosecutors believe Deaver may have lied in an effort to conceal possible violations of the Ethics in Government Act. The 1978 law restricts the contacts former government officials may make after leaving the federal payroll.
Turk objected to its inclusion in the judge's charge to the jury, arguing that the defense was entitled to have its theory of the case also presented to the jury by Jackson. The defense's theory, Turk said, is that Seymour brought the perjury charges against Deaver after he failed to find any evidence of a violation of the ethics act by Deaver.
"If Mr. Deaver had violated the Ethics in Government Act, there isn't a soul alive on this planet who, had he seen this trial, would doubt for a moment that Mr. Seymour would have charged him with such a violation," Turk wrote in a motion.
Jackson held, however, that the jury needed to have some knowledge about the ethics law because the case was filled with so much evidence about it. Without an explanation, the jury would be confused about much of the case, he said.
Turk also objected to Jackson drawing much of his information about the law from a White House memorandum admitted into evidence. Turk said the memo, drafted by former White House counsel Fred F. Fielding for departing presidential staff, "is out in left field."