An angry Los Angeles federal judge imposed a gag order Tuesday on all attorneys in the Richard W. Miller spy case, prohibiting them from making any public comment on the case outside the courtroom.
The action by U.S. District Judge David V. Kenyon Jr. came at the request of U.S. Atty. Robert C. Bonner after an article in The Times on Sunday in which defense lawyers outlined some of the key portions of their trial strategies.
Kenyon sternly reprimanded the defense lawyers for discussing the case in the press, saying that their comments had created a “serious and imminent threat” to the fair administration of justice.
“The nature and extent of pretrial publicity has taken a dangerous turn,” Kenyon said. “This trial will not become a circus show outside the courtroom.”
Kenyon’s restraining order on further lawyer comment, requested by Bonner earlier during pretrial hearings in November and renewed after the Times article on Sunday, bans the attorneys from making any statements to the press about the evidence in the case, the strength or weakness of the case, theories of either the defense or prosecution or the anticipated testimony of prospective witnesses.
“This court will feel equally strong about enforcing the order,” said Kenyon, who could impose strong contempt penalties on any lawyer violating the action.
In interviews with The Times, lawyers for Miller and two Russian immigrants, Svetlana Ogorodnikova and her husband, Nikolai Ogorodnikov, criticized the FBI for allegedly exaggerating the evidence against the three accused spies during the early stages of the case.
They spoke publicly after the U.S. attorney’s office had dropped four espionage counts against the Ogorodnikovs that accused them of actually receiving a secret FBI document from Miller, a former counterintelligence agent in the FBI’s Los Angeles office.
The trial of the Ogorodnikovs on charges of conspiracy to commit espionage and bribery of an FBI official is scheduled to begin March 19 before Kenyon, with Miller’s trial to follow.
Ogorodnikova’s lawyers, Gregory P. Stone and Brad D. Brian, said in the Times article that Ogorodnikova was an emotionally troubled and alcoholic former FBI informant with an IQ of 64 to 74 who believed that she was helping the United States by doing whatever Miller asked her to do.
Stanley Greenberg, one of Miller’s lawyers, also said in the article that part of Miller’s story--that he was trying to infiltrate Soviet intelligence to cap an otherwise undistinguished FBI career--has been substantiated by an employee of a private investigator in Riverside.
Greenberg said the Riverside witness, Larry Grayson, has confirmed that Miller asked him to photograph Miller with Soviet intelligence agents so he could prove to his FBI superiors that he had accomplished what he was trying to do.
In urging Kenyon not to impose the gag order, Stone argued that one reason for speaking publicly about the evidence in the case was that an article in the New York Times Magazine had incorrectly reported that an FBI search of the Ogorodnikovs’ apartment in West Hollywood had uncovered spy equipment.
Stone noted that although a correction had been printed by the New York Times, he and Brian decided to state their side of the case for the first time in any detail because they thought that “further misstatements” were likely if they remained silent.
Stone also said that early government statements about the Miller case had created a prejudicial climate and a presumption of guilt against Ogorodnikova. He said defense lawyers were having a hard time finding witnesses to testify for the Ogorodnikovs because many people presumed them to be guilty.
Bonner, responding to Stone, said the claim that it was necessary to speak publicly to procure the cooperation of witnesses was “one of the lamest excuses for unethical conduct I have ever heard.”
In dismissing Stone’s objections, Kenyon said he was “thoroughly” unconvinced by Stone’s arguments.
Kenyon, noting that he had admonished lawyers on two earlier occasions against trying the case in public, said they had clearly changed their strategy as a crucial stage on the eve of trial.
He said that all the lawyers in the case had conferred only last week on a jury questionnaire designed to determine the effect of pretrial publicity on the chances of a fair trial for the three defendants.
“Then, unbelievably, the defense counsel make these statements,” he said. “The apparent hypocrisy of defense counsel deserves no further comment at this point. It has created a serious threat to the administration of justice.”
None of the defense lawyers had any comment on the judge’s order. Before the hearing, however, they indicated that they probably would not attempt to appeal the issue because of the immediacy of the approaching trials.
Greenberg, speaking before the ruling by Kenyon, said he hoped the judge would not issue a gag order.
“The government’s primary concern is that the lawyers have been critical of the government,” he said. “That’s what the First Amendment is for. I have a great deal of respect for Judge Kenyon, but I feel he will be sending the wrong message.”
Greenberg also said that the three accused spies have been prevented by the government from granting media interviews because of the national security aspects of the case. Miller and Ogorodnikov are being held without bail in the federal prison at Terminal Island, and Ogorodnikova is confined in the Sybil Brand Institute for Women.