Spy Case Judge Rated Fair, Tough : Kenyon Also Exhibits Humor During Ex-FBI Agent’s Trial

When U.S. District Judge David V. Kenyon was picked last year to preside over the Richard W. Miller spy case, both government and defense lawyers praised him as a fair-minded judge and predicted that he would do his best to give them equal treatment as they prepared for the trial of the first FBI agent ever charged with espionage.

The lawyers have not said much about the judge or anything else in recent months, however, because of the unexpected manner in which the judge lived up to their predictions of equal treatment: Kenyon slapped a gag order on all of them in March banning any public comment about the case.

The gag order, issued by Kenyon at the government’s request to halt pretrial publicity after defense lawyers had discussed their case in interviews with The Times, showed a tough side of Kenyon at an early stage in the Miller case. That tough side contrasted with his reputation as an easy-going judge who is unusually patient and good-humored with most lawyers.

Kenyon’s stern tone as he warned that the Miller trial “will not become a circus show performed outside the courtroom” was not a departure in judicial philosophy for the conservative judge, however, merely a momentary change of mood from his usual relaxed and jovial courtroom style.

Miller was arrested Oct. 2 on charges of conspiring with accused Soviet spies Svetlana and Nikolai Ogorodnikov to pass FBI secrets to the Soviet Union, and Kenyon was assigned to the case in a random selection process the next day.

In the long months of courtroom melodrama that have surrounded the Miller case, Kenyon, 54, has generally avoided solemn lectures to attorneys, more often engaging in light-hearted banter with jurors and lawyers, frequently joking about himself and the problems he faces presiding over the trial.

During pretrial hearings, Miller took the witness stand to testify about his sexual relationship with Svetlana Ogorodnikova, which began in May, 1984, and continued until the following September. Miller counted on his fingers before testifying that the relationship had lasted four months.

“When was the last time you saw an FBI agent resorting to counting on his fingers to tell the difference between three and four?” one of Miller’s lawyers, Stanley Greenberg, later asked Kenyon in an effort to dramatize Miller’s general ineptitude as an FBI agent.

“I must admit that the next day I found myself counting on my fingers too,” Kenyon responded.

“I’m sorry I mentioned it then, your honor,” Greenberg said.

Overall Performance

Public scrutiny of Kenyon, a Republican from San Marino who is known for his unusual blend of compassion, folksy style and conservative approach to the law, has been inevitable because of the Miller case. Admirers and critics focused last week not only on his fairness but on his overall performance as a judge.

“He’s an intelligent and capable guy,” one federal prosecutor said. “I don’t think there’s a judge in this district as motivated to be fair to both the government and the defense. Far and away his greatest strength is his desire to do the right thing.”

“His greatest weakness is his indecisiveness,” a defense lawyer and former federal prosecutor countered. “He makes it look like he’s being fair, but you can count on him to systematically rule in favor of the government in criminal cases. If you ask me, his greatest strength is his law clerk.”

One of Kenyon’s first major decisions was to reject a government request to try Miller before the Ogorodnikovs. He agreed to separate trials and ruled that it was most fair to the defense to try the Ogorodnikovs ahead of Miller.

During the two-month trial of the Ogorodnikovs, which ended June 25 when they pleaded guilty to conspiring with Miller, Kenyon nullified that initial defense victory in another major ruling.

Miller’s Statements OKd

Over the protests of the lawyers for the Ogorodnikovs, Kenyon ruled that the government could question Miller during the Ogorodnikov trial about pre-arrest admissions he made to the FBI, including reported statements admitting that he had passed FBI documents to Ogorodnikova.

In effect, the judge had given the government what it had hoped for from the beginning, a decision that prosecutors could use Miller’s statements in both trials and not have them excluded for a variety of reasons, including hearsay.

Meanwhile, faced with mounting pressures to speed the trial along and resolve an unending stream of legal controversies, Kenyon continued to jokingly apologize for frequent delays in proceedings, at one point calling himself “kind of slow” and another time describing himself as “wishy-washy.”

On May 8, early in the trial of the Ogorodnikovs, a juror stayed home with the flu, and the prosecution suggested replacing the sick juror with an alternate. As defense lawyers rose to object, Kenyon begged off the issue by postponing the trial a day.

“Let’s not make a federal case out of it,” he said.

The Miller trial began Aug. 6, with more than 40 witnesses called by the government in the first three weeks of testimony, which ended Friday. Last week, anticipating at least another month of testimony, Kenyon spoke hopefully of getting to watch the World Series in October, but he did not seem overly optimistic about his chances.

Dislikes Public Attention

Kenyon has declined to be interviewed since the beginning of the Miller case and has made it clear in previous interviews with The Times that he does not enjoy public attention. One person who has talked to Kenyon said the judge has privately confided that he is looking forward to the end of the case and the resumption of his normal workload.

Born in San Marino, Kenyon is a former Marine captain and a 1957 USC Law School graduate. He was appointed to the Los Angeles Municipal Court and then to the Superior Court in 1970 by then-Gov. Ronald Reagan. A deeply religious man, Kenyon is married and has two children.

As a Superior Court judge, Kenyon established an experimental juvenile court project known as the Juvenile Justice Center in 1976 in South-Central Los Angeles, which brought together all the agencies that deal with troubled teen-agers in one facility.

Because of Kenyon’s background, there was initial skepticism in the black community that Kenyon could make the experiment a success. By the time of his appointment to the federal bench in 1980, however, he was highly regarded in the South-Central area, so much so that the county facility was renamed the David V. Kenyon Juvenile Justice Center.

“I figured a San Marino Republican would last two or three days down here,” Supervisor Kenneth Hahn recalled in a 1980 interview. “He’s probably the only judge in the United States who could have done what he did. Even though he was white, he came down to South-Central and he walked the streets and he became the peoples’ friend. He didn’t go out in a black robe like so many judges would do. He went out as a human being. And he had great respect and love.”

‘Judicial Temperment’

As a federal judge, Kenyon’s reputation for basic decency has stayed with him.

“I think he’s fair, even-handed and he allows both sides to try their cases without interference,” said attorney Howard Weitzman, one of the few prominent defense lawyers in Los Angeles who is willing to publicly criticize a federal judge. “He has the most judicial temperament of any judge I have observed. His greatest strength is an overwhelming effort to be fair.”

Of the 26 federal trial judges in Los Angeles, Kenyon has one of the lowest reversal rates on appeal, in part because he is extremely cautious in reaching decisions. Kenyon often allows attorneys to argue their points at length in the courtroom when other judges might cut off the discussion. He also has a reputation for using his law clerks to help him reach his initial decisions.

“Basically he’ll bounce an idea off us and ask us to play the devil’s advocate,” said Dennis Mitchell, one of Kenyon’s law clerks during the last year. “He’s respectful to attorneys and he expects attorneys to be respectful to the court. If someone’s trying to take advantage of him, he’ll zap them.”

Several attorneys interviewed last week said Kenyon’s major weaknesses are that he allows proceedings to be delayed by what some see as unnecessary courtroom oratory and that he does not take stronger control. Most added, however, that they think those weaknesses might also be viewed as strengths if the result is a just decision.

Although Kenyon did not respond to comments made about him, he once dismissed the importance of both praise and criticism. “Fame or love or hate isn’t what it’s about,” he said. “It’s having a clear conscience and the patience to do what’s right. You don’t do things for adulation or you’ll get dumped just as fast as you rose.”

‘Fame or love or hate isn’t what it’s about.