Miller Trial--’Intellectual Challenge’ : First Job for Defense: Getting the Case; Second Job: Winning It

Joel Levine and Stanley Greenberg, two former federal prosecutors, are ending a sometimes frustrating year as the defense team in one of the strangest espionage cases in U.S. history.

It began on a Sunday afternoon last October, when the two drove together to Terminal Island Federal Prison to meet a prospective new client named Richard W. Miller, the first FBI agent ever accused of being a spy.

Like many of the top criminal defense lawyers in Los Angeles, Levine, 40, and Greenberg, 44, had begun thinking about the possibility of defending Miller almost immediately after his arrest last Oct. 2 for allegedly passing secrets to the Soviet Union.

Although they had separate law practices, they had remained friends since leaving the U.S. attorney’s office and they had worked together on criminal cases before. They did not know if they would be asked to defend Miller, but they considered themselves an ideal team for what they saw as a two-man job.

‘A Lawyer’s Dream’

Levine’s major cases as a prosecutor were the 1977 spy trials of Christopher Boyce and Andrew Daulton Lee, who later became known as “The Falcon and the Snowman.” After winning convictions, he started private practice later that year.

Greenberg, who left the U.S. attorney’s office in 1974, had tried major fraud cases as a federal prosecutor and earlier served as the U.S. Army’s legal adviser in the investigation of the My Lai massacre in Vietnam.

“To me the Miller case was an intellectual challenge,” Levine recalled. “One, from what I had read, I thought the guy was innocent. Second, having been a prosecutor in one of these cases, I knew the odds at conviction are high.”

“It was a lawyer’s dream,” Greenberg added. “From the beginning, it was clear it was going to be an historic case.”

With the Miller case nearing its conclusion, Miller lavished praise on his lawyers on Sunday in a statement relayed by his wife, Paula.

“I think they walk on water,” Miller said. “They’ve been friends as well as attorneys.”

Levine and Greenberg, however, initially faced the same problem that confronted almost every other criminal lawyer in Los Angeles at the time of Miller’s arrest: The first choice was attorney Howard Weitzman.

Less than two months before Miller’s arrest, Weitzman and Donald Re had won the dramatic acquittal of auto maker John Z. DeLorean on cocaine charges after one of the most publicized trials in Los Angeles history. Weitzman emerged as one of the most sought-after lawyers in the nation.

The preliminary hunt for a lawyer was left to Miller’s wife and to an Orange County lawyer, E. Gary Smith, who had represented the Millers in the past as their family lawyer. According to Smith, Weitzman was at first anxious to take the case but changed his mind after Paula Miller indicated that she wanted to take some time making the decision.

“It was an ego thing on Weitzman’s part,” Smith said. “At first he said he would take the case for the literary rights. But when Paula finally called, he said he had changed his mind, saying: ‘I’m not used to begging for cases, I’m used to being begged.’ ”

After Weitzman turned Miller down, Smith continued, the search focused on about a dozen top lawyers. Among them was Greenberg, who told Smith of his talks with Levine and their conclusion that the former agent’s defense would have to be approached as a two-man job.

Similar Defense

Levine, in prosecuting Boyce, had run up against a defense based partly on the claim that Boyce believed that he was working as a CIA subcontractor while supplying U.S. satellite secrets to the Soviet Union. Before even meeting Miller, Levine sensed that Miller would offer a similar defense.

At the first meeting between Miller and the two former prosecutors, Levine began by telling their prospective client what he thought his defense would be, observing later that Miller was amazed at how close he had been to the former agent’s own version: that he had been attempting to infiltrate the Soviet KGB and never planned to betray his own country.

Not only was Smith impressed by Levine’s perception, he also liked the fact that the two former prosecutors said they did not want to work for some promise of future book rights, saying they believed that that would present a possible conflict of interest.

Exactly how much the two lawyers have been paid, if anything, for defending Miller has not been disclosed, but a reasonable estimate of the value of their legal services is in the area of $500,000.

“There’s no question they have essentially been working on a pro bono (for the public good) basis, and I respect them for that,” Smith said.

In addition to anticipating Miller’s defense, Levine and Greenberg accurately forecast some serious problems for themselves as a result of the government’s simmering resentment of Weitzman’s handling of the DeLorean trial, which featured daily news conferences on the steps of the U.S. Courthouse in downtown Los Angeles.

No ‘Circus Atmosphere’

Early in the case, U.S. District Judge David V. Kenyon sternly warned lawyers for Miller and his co-defendants, Svetlana and Nikolai Ogorodnikov, against generating the kind of “circus atmosphere” that he connected to the DeLorean trial.

When the judge later decided that the attorneys had ignored his warning by outlining their defense strategies to The Times, he imposed a restraining order on all of them against any further comment about almost every aspect of the case.

“It’s the kind of case where the built-in institutional biases in favor of the government seem to operate at their fullest,” Greenberg said before the gag order was imposed. “I can see the impact that the DeLorean case has had on us just in the way some of the judges say hello to us in the hallways.”

Before the Miller trial began Aug. 6, the government tried the Ogorodnikovs on charges of conspiring with Miller to obtain secret FBI documents for the Soviet Union. They pleaded guilty after two months of the trial in exchange for an 18-year sentence for Ogorodnikova and an 8-year sentence for her husband.

The trial of the Ogorodnikovs was the low-point of the year for Levine and Greenberg, because they had to watch silently while their client testified as an immunized government witness.

Miller, an admitted adulterer, petty thief and lifelong bumbler, was questioned by government lawyers as well as by the attorneys for the Ogorodnikovs. Miller and Levine were unable even to voice objections. Their only recourse was an occasional quip outside the courtroom.

‘Getting Run Over’

“Oh, yeah, we love getting run over,” Greenberg said at one point.

In Miller’s trial, which is expected to go the jury late this week, Levine and Greenberg were often on the losing side of key rulings by Kenyon, including decisions allowing the government to introduce a series of confessions by Miller, polygraph evidence against the former agent and testimony linking him to previous bribe-taking activity.

The strategy of the two former prosecutors was to chip away at the government’s case rather than to assault it head-on and to build as strong an appeal record as possible in case of a verdict convicting Miller. Levine and Greenberg not only decided against calling the Ogorodnikovs as witnesses but also reached the conclusion that it was wisest not to put Miller on the stand.

Although they were blocked by Kenyon’s gag order from discussing almost anything related to the case, they had made most of their views about the case known before the restraining order was issued.

“If Miller is convicted, it will be for all of the wrong reasons,” Greenberg said early in the case. “Richard is not as bad as he’s been portrayed. I have genuinely come to be fond of him. Joel and I felt from the beginning that whatever happened, this guy was going to have the best defense we could give him.”

‘Like an Average Man’

Levine, in a probable preview of the closing statement he will deliver this week on Miller’s behalf, also had summarized his views on Miller before the judge’s ban on comment about the case.

“I’m not saying we’re going to get him off,” Levine said. “But I think he’s going to get the kind of defense he needs. What we have wanted to show in this case is that Richard Miller is like an average man. But because of where he was in life, we expect him to wear a Superman suit.

“It isn’t that strange for an Everyman to be in debt, to have affairs, to be overweight,” Levine added. “But when he’s in the FBI, it hurts your eyes to look at that. He existed for 20 years on his wits. He never belonged. Everything the FBI has charged about his personal life was known by the FBI before he ever met Svetlana Ogorodnikova.”