Lawyers Contend FBI Exaggerated Evidence in Spy Case

Defense lawyers in the Richard W. Miller spy case have accused the FBI of initially exaggerating the evidence against Miller and two Russian emigres charged with conspiring to pass secret government documents to the Soviet Union.

They said in interviews last week that the three accused spies should never have been prosecuted for espionage because the government has been unable to establish that Miller actually passed any documents to Svetlana Ogorodnikova or her husband, Nikolai Ogorodnikov, or caused any harm to the security interests of the United States.

A federal prosecutor declined to respond to the comments on grounds that a judge has asked all parties in the case to avoid public discussion of the evidence.

The comments of the defense lawyers followed a decision by the government to drop four counts of aiding and abetting espionage activity against the Russian couple in which the Ogorodnikovs were charged with the receipt of a secret document from Miller.

Seen as a Concession

“The dismissal of those charges means the government has now conceded that no documents were ever passed. It’s also a concession that there’s been no damage to national security,” said Gregory P. Stone, one of Ogorodnikova’s lawyers.

“I don’t think the case should ever have been brought. The initial characterization by the government that this was a major espionage case with untold damage was an incorrect assessment.”

“They acted hastily in filing the espionage charges,” added Stanley Greenberg, one of Miller’s lawyers. “To a large extent, the FBI misled the U.S. attorney’s office about the strength of the case until it was too late.”

Although the four aiding and abetting charges were dismissed, the Ogorodnikovs remain charged with conspiracy to commit espionage and bribery of an FBI official. Their trial is scheduled to open March 19 in Los Angeles federal court, with the trial of Miller to follow.

Interviews with Stone and other attorneys for the Ogorodnikovs and Miller provided a detailed preview of key portions of their defense strategy:

- Ogorodnikova’s lawyers will portray her as an emotionally troubled and alcoholic FBI informant with an IQ of 64 to 74 who thought she was helping the FBI by doing whatever she was told to do by Miller, a former agent in the counterintelligence unit of the FBI’s Los Angeles office.

Other Agent Cited

They will focus part of their defense on a charge that before she became sexually involved with Miller she had a sexual relationship with another former FBI counterintelligence agent, John Hunt, who also tried to use her to infiltrate Soviet intelligence. The government has already denied that allegation.

- Attorneys for Miller, who since his arrest have portrayed him as a slow-witted bumbler, say they now have a witness who can corroborate his claims that he was involved with Ogorodnikova without the knowledge of his FBI superiors in an attempt to cap his 20-year FBI career by infiltrating a Soviet intelligence network.

An employee of a private investigator in Riverside has confirmed that he was asked by Miller six weeks before his arrest to photograph Miller with Soviet intelligence officials so that he could prove to his superiors that he had accomplished his mission, Miller’s lawyers disclosed. The man, identified as Larry Grayson, reportedly told Miller that he was stupid not to have told his superiors what he was doing, and Miller replied that if he did so they would remove him from the case because of his past record.

- Nikolai Ogorodnikov will be presented by his attorney, federal public defender Randy Sue Pollock, as a hard-working Russian immigrant who was allowing Ogorodnikova to continue to live with him and their 13-year-old son, Matthew, in a tiny one-bedroom West Hollywood apartment only out of a sense of compassion for her personal problems.

He had no involvement in whatever was going on between his estranged wife and Miller, according to Pollock, and was indicted only because of “guilt by association.”

Following the indictment of Miller and the Ogorodnikovs early last October, U.S. District Judge David V. Kenyon Jr., who is presiding over the trials, issued stern warnings to both defense lawyers and prosecutors not to try the case in public.

The remarks by some of the defense attorneys after the Feb. 20 dismissal of four of the counts against the Ogorodnikovs included the strongest criticism yet of the government’s initial decision to prosecute the case.

Assistant U.S. Atty. Richard B. Kendall, co-prosecutor in the case, said the government explained in court that the aiding and abetting charges were dropped because it appeared that Miller--who allegedly admitted passing documents to Ogorodnikova during five days of FBI questioning before his arrest--will not make a similar admission if called as a witness at the trial of the Ogorodnikovs.

No Comment on Fingerprints

Kendall declined to comment on defense statements that part of the decision to drop the charges was the result of the FBI’s failure to find any of Ogorodnikova’s fingerprints on FBI documents that were found in a Lynwood house that Miller used when he was not staying with his family in the San Diego County community of Valley Center.

“I don’t think they should be making comments like that,” Kendall said. “Much as I would like to respond, I really don’t feel that I can say anything about the evidence in view of the judge’s comments.”

Government documents and court proceedings already have revealed much about the government’s case. Significant portions are based on Miller’s own comments to FBI questioners during the five days of his interrogation after he first told FBI superiors some of the details of his involvement with Ogorodnikova.

Miller said on Sept. 27 last year that he had become involved with Ogorodnikova in May, 1984, and that she had approached him about providing secret FBI documents to Soviet intelligence. He said she claimed to be a major in the Soviet KGB and offered him $65,000 in exchange for government documents, at one point introducing him to her husband and allegedly describing him as the man in charge of finances of a Soviet spy ring.

Miller had first planned to meet with other Soviet officials in Mexico, he said, but the proposed meeting was shifted to Eastern Europe. He said his reason for volunteering the information to his FBI superiors was that he had taken his plan as far as he could without official authorization. He has since maintained that at that point he had no idea he already had been under surveillance for weeks in an FBI counterespionage operation code-named “Whipworm.”

During the questioning that followed Miller’s first statements, he first maintained that he had passed no FBI documents to Ogorodnikova. He later allegedly admitted, however, that he showed her a copy of an FBI document called “Reporting Guidance: Foreign Intelligence Information” during a meeting with her at his Lynwood residence.

Previous Record as Informant

A day after that admission, on Oct. 2, Miller was fired and arrested as a spy along with the Ogorodnikovs, the first FBI agent ever to be accused of espionage.

Stone and Brad A. Brian, co-counsel for Ogorodnikova, made it clear that their defense will focus on her previous record as an FBI informant, especially her earlier alleged sexual relationship with former agent Hunt.

Ogorodnikova’s claim that she was romantically involved with Hunt, who resigned after the October arrest, was made public earlier in court documents. Hunt, who reportedly now lives in Oregon, has not responded to the allegation publicly.

“As we have contended all along, she had a relationship with Hunt, as his informant and his lover,” Brian said. “She had a virtually identical relationship with Miller, and, as she had done with Hunt, if Miller asked her to do something she followed his instructions. She believed she was benefiting the United States.”

Brian said a psychologist who examined Ogorodnikova in 1979 found her to have an IQ of between 64 and 74--in the lowest 9% of the overall population. He suggested that it is not the likely intelligence level of a Soviet agent.

In addition, Brian said, Ogorodnikova was experiencing serious emotional problems at the time she met Miller.

“She was suffering severe depression, she was severely alcoholic and she was anorexic,” Brian said. “She had a real need for someone to give her a sense of self-worth.”

Stone, saying that the government itself does not believe Ogorodnikova was a high-ranking KGB official, added a personal view of the accused spy as he has observed her during the last five months:

Sorry Husband Is Involved

“She is kindhearted. She cares about people. She’s somewhat simple. She’s very depressed. She cries about her son and her husband. She’s sorry Nikolai is involved in this.”

Greenberg, joining the criticism of the initial FBI reaction to Miller’s activities, said Miller’s comments were the “sole basis” for initially charging the Ogorodnikovs with receiving secret documents.

“Those two people were indicted with the hope that the charges could be substantiated, and they haven’t been able to do it,” Greenberg said. “The only reason Miller is still charged with passing documents is that he admitted it after five days of questioning, and he’d already told them he’d say anything just to end the questioning.

“If he had admitted passing pumpkin papers from the Alger Hiss case, I think he’d be charged with it,” Greenberg added.

Miller’s defense, his lawyer continued, will be based primarily around Miller’s original contention that he was trying to cap an otherwise undistinguished career by using Ogorodnikova to penetrate Soviet intelligence.

“We’ve got two dummies here, no question about that,” he said. “But these people should have never been taken seriously as spies. It’s unrealistic to talk about the Miller case in the same breath as other espionage cases that have come along in the last few years.”

Greenberg added that a key witness in Miller’s defense will be Grayson, the employee of a Riverside private investigator.

Noting that Grayson has corroborated Miller’s claim that he asked Grayson to photograph his planned meeting with Soviet agents in Mexico in August, 1984, Greenberg said:

“Grayson warned Miller he shouldn’t do it without reporting to his superiors, and Miller told him he couldn’t do that or they would take him off the case because they thought he was incompetent. The government has talked to him. If they don’t call him as a witness, we will.”

Case Against Nikolai Ogorodnikov

Pollock, representing Nikolai Ogorodnikov, agreed with the other defense lawyers that the government’s case against all three defendants appeared weaker than originally presented. She added that the case against her client was regarded by all of the defense lawyers as the weakest of all.

“He’s not involved in this thing. None of us understand why he was indicted,” she said, declining to discuss Miller’s previous version of his meeting with Ogorodnikov on grounds that she does not know what Miller will actually say about it in court.

Miller’s testimony at the Ogorodnikovs’ trial remains a subject of concern, both for the other defendants in the case and for the government. Nobody is quite sure what he plans to say if called, or whether it will be favorable or harmful to the two accused Russians.

But Greenberg volunteered his own view.

“I think the Ogorodnikov’s chances of acquittal will be enhanced if the government calls Miller as a witness,” he said. “I think he will corroborate much of what they are saying about the case.”