Spy Case Jury Out 10 Days : Deadlock Hinted in Miller Trial

The possibility that jurors in the spy trial of former FBI Agent Richard W. Miller may be deadlocked was raised publicly for the first time Thursday when a federal judge called lawyers for both sides together to discuss the lengthy deliberations.

U.S. District Judge David V. Kenyon told the attorneys at the start of the jury’s 10th day of deliberations that he was thinking of telling the panel that they could announce a partial verdict if they have reached a decision on any of the seven counts against the first FBI agent to be charged with espionage.

“I believe it is proper before the weekend to consider telling the jurors that if they do come to a verdict in any of the matters, they are free to bring that verdict into court, even though they have not arrived at a verdict in the other matters,” Kenyon said.

The judge delayed a decision on whether to actually give such an instruction after strong protests from Miller’s lawyers. Kenyon said only that he would give the possibility further thought.

The jury, meanwhile, broke off its deliberations early Thursday afternoon without any hint of whether it is close to even a partial verdict.

In explaining his suggestion to the lawyers, Kenyon referred to the lengthy deliberations already taken by jurors in the Miller case.

“The longer that the jury deliberates, the more chance that the jury won’t remain as a total unit,” the judge said. “If they’ve reached a decision in any way, the court should know that.”

While U.S. Atty. Robert C. Bonner had no objections to the judge’s proposal, defense lawyers Joel Levine and Stanley Greenberg objected strenuously. They argued that such an instruction might constitute unwarranted interference in the panel’s deliberations.

“Why?” Greenberg asked. “What purpose would it serve? We have no indication of a deadlock, or any other kind of problem.”

While Thursday’s comments were the first courtroom references to the possibility of a deadlocked jury, there has been nervous speculation for several days among lawyers in the case about the lengthy deliberations.

While a deadlock has been discussed as one possible explanation, the attorneys have also pointed out that the jury has more than two months of testimony to review and seven different counts to decide. More than three of the jury’s first 10 days of deliberations were devoted to rehearing a substantial part of that testimony.

Levine, arguing against Kenyon’s suggestion, said an instruction about a count-by-count verdict in the Miller case should be considered only if it becomes clear to the judge that one of the jurors is about to drop out for one reason or another. In the federal courts, alternate jurors are excused once deliberations start. A prolonged absence of any juror ultimately could produce the same effect as a deadlocked jury--another trial.