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All these matters weighed heavily on Judge Byrne. Then, three weeks ago, the prospect that the case would end in a dismissal surfaced with Byrne's own disclosure that he had visited John D. Ehrlichman, who had offered him the directorship of the FBI, and that he had met President Nixon at the Western White House. The defense immediately demanded dismissal of the case. The judge refused, saying that he had declined to discuss the FBI offer with Ehrlichman and had done nothing improper.
As disclosure followed disclosure, the courtroom air became filled with defense cries of "taint" and motions for mistrial and dismissal, but Byrne hesitated. He was troubled because there were no very direct precedents to guide him. Indeed there could hardly be any, since both the charges and the revelations of the Government's interference and misconduct were unprecedented. Defense Counsel Leonard Boudin tried to cajole Byrne with the coy suggestion: "I'm hopeful that in future when I'm asked to cite a precedent, I'll be able to cite one made by Your Honor in this case."
Byrne had three basic alternatives: 1) declare a mistrial, which would expose the defendants to retrial before a new jury; 2) dismiss the indictments in such a way that the government could never again prosecute these defendants for the same alleged offenses (these two might be combined); or 3) send the case to the jury and decide later whether to throw out a possible guilty verdict if further investigation incriminated the Government still more deeply.
Only a Glimpse. When Byrne mounted the bench to announce his ruling, the courtroom was packed. The corridors were filled with pass holders who had been unable to squeeze in. With the jurors absent during procedural arguments, the jury box was crammed with newsmen. Byrne began briskly: "I am prepared to rule on the motion for dismissal."
First Byrne offered the defense a choice: Did it want to press for dismissal or take the risk of letting the case go to the jury for a final verdict? It took Boudin & Co. only a one-minute huddle to answer: "Dismissal." Byrne had obviously anticipated this and had the appropriate ruling prepared. He read it quickly but clearly. The Government, he noted dryly, had made an "extraordinary series of disclosures" regarding the activities of several agencies. He had tried to develop "all relevant information" about these activities, but "new information has produced new questions, and there remain more questions than answers."
Of the special investigative unit that White House officials had set up, and which burglarized Psychiatrist Lewis Fielding's office, Byrne said: "We may have been given only a glimpse of what this special unit did, but what we know is more than disquieting." As for the CIA's assistance, he said that the agency was "presumably acting beyond its statutory authority and at the request of the White House."