Alleged Spy’s Lawyers Ask Dismissal of Case

Defense lawyers asked a federal judge Thursday to dismiss the government’s case against accused Chinese double agent Kristina Leung, claiming the prosecution has improperly blocked their access to a key witness who can prove her innocence.

Janet I. Levine, co-counsel for the former FBI operative, also charged that prosecutors had refused to turn over exculpatory information that would “prove [she] is a loyal American who risked her life for her country.”

U.S. District Judge Florence-Marie Cooper scheduled the hearing to consider allegations that prosecutors had illegally and unethically barred Leung’s former FBI handler and lover, James J. Smith, from speaking to the defense about the case.

Assistant U.S. Atty. Michael Emmick denied any such attempt in a lengthy plea agreement that prosecutors negotiated with Smith earlier this year. Smith, who retired from the FBI in 2000, was allowed to plead guilty to a reduced charge of failing to report his 20-year sexual relationship with Leung, a San Marino businesswoman.

Emmick said the plea agreement contained “inartful” language that might have given rise to a mistaken impression that Smith was prohibited from talking to Leung’s lawyers.

Levine scoffed at the prosecutor’s explanation. “There was nothing inartful about the language. Everything the government has done in this case has been deliberate.”

Leung, a highly regarded FBI asset for two decades, was indicted in May 2003 on charges of illegally copying and possessing three confidential FBI documents that were discovered during a search of her home.

The government contends she swiped them from Smith and intended to use them to harm U.S. interests. According to an FBI affidavit, Leung admitted that she filched documents from Smith’s briefcase and that she passed unauthorized information to Chinese government officials. She was not charged with espionage.

Defense lawyers Levine and John Vandevelde argued that having access to Smith is crucial in preparing her defense.