Judge Will Release More Ellsberg Burglary Papers

LOS ANGELES--The Pentagon Papers trial--now called Watergate West by some reporters--is scheduled to resume on Tuesday in U.S. District Court here.

But lawyers in the case will appear in court this morning, presumably to watch Judge Matt Byrne give more documents to the defense and more warnings to the prosecution.

The documents will probably contain additional information about the burglary at the Beverly Hills office of Dr. Lewis J. Fielding, the psychiatrist who once treated Daniel Ellsberg '52.

And the warnings, if they come, will be familiar: that the prosecution must move faster to provide the court with all information the Justice Department has regarding the Fielding burglary.

On Friday night, Byrne received a government document that defense lawyers hope to get this morning: a sworn affadavit from former White House aide Egil (Bud) Krogh. In the affadavit, Krogh reportedly admitted that he helped plan the burglary at Dr. Fielding's office.

Earlier reports indicated that Krogh directly implicated President Nixon in the burglary. But the Los Angeles Times yesterday quoted sources close to Krogh as denying those reports.

At the time of the burglary--September 1971--Krogh was deputy to John Ehrlichman, then a top Nixon aide. Ehrlichman has admitted hiring convicting Watergate conspirators G. Gordon Liddy and E. Howard Hunt to prepare a psychological profile of Ellsberg. And Hunt, in turn, has admitted that he and Liddy helped conduct the burglary.

So the case grows larger and the tale becomes stranger and more ominous with each passing day. And lost in the Watergate shuffle is the central issue in the Pentagon Papers trial: are Daniel Ellsberg and Anthony J. Russo innocent or guilty?

For a time last week, it appeared that the jury might never decide that question.

But by the week's end, the numerous defense motions for a dismissal of charges had either been denied or were still pending. Meanwhile, Byrne ordered the prosecution to continue examining rebuttal witnesses, which is the last phase of the trial before closing argument.

The defense, understandably, has been reluctant to drop the Watergate issue. Although defense lawyers have repeatedly predicted that the jury would vote for acquittal, they want to play it safe. So if they can win a dismissal of charges, or a mistrial "with prejudice"--which means Ellsberg and Russo would be safe from further prosecution--they will gladly accept it.

Thus, the defense has no compulsion to win on the issues, to "vindicate" Ellsberg and Russo. Far from resenting the intrusion of Watergate, they welcome it.

"Well, I'm delighted it came up," defense lawyer Leonard I. Weinglass told The Crimson late Saturday night. "I think it takes the issues in the case far beyond the case, because it deals not only with the revelation of the Pentagon Papers now, but the ongoing operation of government."

Watergate, he said, "underscores the issue (in the trial), not undermines it."

On Friday, in an attempt to keep the Watergate angle alive, the defense began a boycott of regular proceedings. They refused to cross-examine witnesses, or formulate any objections to testimony, until Byrne rules on pending dismissal motions.

The boycott involves certain risks for Ellsberg and Russo. It is now possible for the prosecution to introduce testimony that the defense, through objections, might otherwise have prevented. By not objecting at this point, the defense might lose some rights of appeal.

But the name of the game in the trial is now Watergate, and the defense wants to keep it that way. For now, at least, it seems that they will succeed