Mistrial Declared in Miller Spy Case : Deadlocked Jurors Are Dismissed; Prosecutor Will Seek Quick Retrial

A mistrial was declared Wednesday in the espionage case of former FBI Agent Richard W. Miller after jurors said they were “hopelessly deadlocked” at the end of 14 days of deliberations.

The foreman of the jury said a final vote taken Wednesday showed the jury deadlocked 10 to 2 for conviction on the three most serious espionage charges against Miller and 11 to 1 for conviction on four related spy counts.

Confronted with the jury’s insistence that it was unable to reach a verdict, U.S. District Judge David V. Kenyon rejected repeated government urgings that he order the jury to continue its discussions.

“I must say we have to face reality,” the judge said. “If we push these people any further in terms of asking them to stay, we run a clear risk of getting a verdict not based on the right reasons.

“The court will declare a mistrial because jurors are unable to reach a verdict. The jurors will be excused.”

Kenyon’s decision to declare a mistrial in the case of the first FBI agent ever charged as a spy was a blow to the FBI as well as to U.S. Atty. Robert C. Bonner, who personally headed the prosecution team.

Convicted Couple

Not only did the mistrial follow the earlier convictions of Miller’s accused co-conspirators in the alleged spy plot, Russian emigres Svetlana and Nikolai Ogorodnikov, but FBI statistics going back 40 years showed that every one of 67 previous FBI espionage cases prosecuted had resulted in guilty verdicts.

The case had been of particular importance to the FBI because Miller himself was an agent. FBI Director William H. Webster had called the case an embarrassing chapter in the FBI’s history after Miller’s arrest last year,

FBI officials in Washington said Wednesday, however, that they had no comment about the deadlock because of a gag order imposed by Kenyon on the lawyers in the case.

Bonner, who smiled wanly at FBI agents in the courtroom after reading the note from the jury before it was announced, immediately said the government will seek to retry Miller as soon as possible on the same seven espionage counts accusing him of passing secret FBI documents to the Soviet Union.

“I would certainly like to retry the case myself,” he said, adding that he believed a second trial could begin by January.

While the deadlock was a setback to the government’s hopes of convicting Miller as an FBI turncoat, neither Miller’s lawyers nor Miller himself appeared happy with the prospect of a second trial.

Miller’s lawyers, Stanley Greenberg and Joel Levine, grimaced after reading the jury note, while Miller maintained the same emotionless look he has displayed throughout the trial.

“We’re disappointed the case was not resolved favorably to Mr. Miller. That’s all I can say,” Greenberg told reporters.

Miller’s wife, Paula, who has maintained her husband’s innocence since his arrest, said both she and her husband were unhappy with the mistrial.

“For 13 months, I’ve thought this would be over some day,” she said in a telephone interview from the family’s home in rural Valley Center in northern San Diego County. “Now I have my doubts that it will ever end.

“I can see how the lawyers have their views, but I cannot see how a jury can’t have a doubt about Richard’s guilt,” she added. “There was nothing in that trial to prove to me that he’s a spy. Luckily at least two of the jurors did have some doubts.

13 Months in Prison

“Richard just wants to be home,” she said. “He’s been in prison for 13 months already on the presumption of innocence. He told me he hasn’t really absorbed it all yet.”

Throughout Miller’s trial, which started Aug. 6, the defense had portrayed Miller as a bumbling agent who was trying to salvage his dismal career by becoming the first man in FBI history to infiltrate the Soviet KGB.

Bonner and Assistant U.S. Atty. Russell Hayman had argued that Miller was simply a greedy and bitter agent who had agreed to pass secret FBI documents to the Soviet Union for the promise of $65,000 in gold and cash and the sexual favors of convicted Soviet agent Svetlana Ogorodnikova.

The jurors gave few clues as to the issues that divided them during their 14 days of deliberations, agreeing beforehand in the jury room not to discuss their deliberations with reporters.

A few jurors, whose identities were not revealed during the trial, commented briefly, however. One juror, who gave his name as Rick Sterner, said when asked what had gone wrong:

“I don’t know. In my opinion, the government had an excellent case. . . . It’s been a big disappointment that it came to a mistrial.”

The jury had first reported itself deadlocked Friday, and Kenyon had told the jurors to reconsider their positions over the weekend and to resume deliberations on Monday morning.

The jury had deliberated for 2 1/2 more days before finally sending Kenyon a note just before noon Wednesday saying it was “hopelessly deadlocked” and that there was no point in further deliberations.

Lawyers Summoned

At 2:40 p.m., the judge called the lawyers to his courtroom to announce that he had received the note and to ask for their comments on what he should do about it.

As soon as Kenyon read the note, Bonner asked that the judge instruct the jury to resume its deliberations in a final effort to resolve the case, urging him to use a controversial legal instruction known as the Allen charge that emphasizes the importance of a case and the likelihood of another trial.

Miller’s defense lawyers objected to the judge’s sending the jurors back for further deliberations and requested a mistrial. Kenyon appeared ready to grant their request immediately.

“I have come to the conclusion that to require these people to go further in their deliberations would run a very serious risk of having them reach a verdict by improper means,” Kenyon said. “We simply have to allow these people to go about their lives.

At 2:56 p.m., the jurors took their seats in the courtroom, which had filled to a crowd of about 100 news reporters, FBI agents and courthouse spectators. The jury foreman told Kenyon he saw no way to arrive at a unanimous verdict on any of the counts, but four members of the jury suggested otherwise.

One of the jurors said she thought personal problems of jurors were the cause of the deadlock and the three others expressed the belief that there might be a way to reach a verdict, and the comment prompted Kenyon to suddenly reconsider his position.

“I’m concerned about the possibility that perhaps some of you--perhaps even a majority--feel it’s personal problems that are preventing a verdict,” he said.

“If that’s the case, it would be a real shame. I want it very clear you are under no pressure to deliberate further. What I’m wondering about is if you could talk it over among yourselves and resolve if it’s personal things or not.”

Agreeing to Kenyon’s request, the jurors then retired to the jury room for another hour, sending Kenyon a final note at 4:38 p.m. after a total of 72 hours of deliberations during the two weeks of discussing the case.

“No personal problems have clouded our decision,” the jurors said. “We have done our best. Our decisions are based on strong convictions that cannot be resolved.”

At that point Kenyon declared a mistrial.

The failure to obtain a conviction was another setback for the Los Angeles federal prosecutor’s office, which had suffered a stinging defeat in last year’s John Z. DeLorean cocaine trafficking case when the former auto maker was acquitted of all charges.

The Miller case had initially been seen by many as an open-and-shut case for conviction, but defense attorneys raised a long list of questions they said had not been answered by prosecutors--most of them focusing on Miller’s intent. They said the prosecution never proved beyond a reasonable doubt that Miller intended to be a spy.

The Miller trial followed the two-month trial of the Ogorodnikovs, which ended June 26 when they pleaded guilty to conspiring with the ex-agent to obtain FBI documents for the Soviet Union. In a plea-bargain agreement, Ogorodnikova was sentenced to 18 years in prison and her husband received an eight-year sentence.

Defense Contention

Miller’s lawyers maintained throughout his trial that he was attempting to become the first FBI agent in history to infiltrate a Soviet KGB spy ring during his involvement with Ogorodnikova, which began May 24, 1984. Miller did not testify at his own trial, but he had told his story as the government’s star witness in the trial of the Ogorodnikovs.

“I felt I could do what nobody had done before--infiltrate an active Soviet intelligence network,” Miller testified under a grant of immunity. “I had a James Bond kind of fantasy. I’d come out a hero.”

At the time of his first meeting with Ogorodnikova, Miller, the father of eight, had been excommunicated from the Mormon Church for adultery and was threatened with possible dismissal from the FBI for a chronic weight problem. His weight at times ballooned to 250 pounds. The FBI weight standards were 193 pounds for an agent of his height, 5 feet, 10 inches.

While Miller claimed he was trying to help the FBI, the government contended that he was motivated by his bitterness toward the bureau and the lure of sex and money offered by Ogorodnikova. Miller was charged with passing her secret documents in August, 1984, and of planning to travel with her to Eastern Europe for meetings with Soviet intelligence officials that would have led to future assignments as a Soviet “mole” inside the FBI.

From the time of Miller’s arrest Oct. 2, 1984, a side issue to the Miller case was the question of whether the FBI should have fired Miller earlier instead of placing him on the Soviet counterintelligence squad in September, 1981, and “coddling” him as an agent, as Miller’s lawyers claimed.

Recruited by the FBI while he was attending Brigham Young University in Provo, Utah, Miller began his career in 1964. During the years that followed, as Miller moved to FBI offices in San Antonio, New York, Puerto Rico, Tampa and Los Angeles, he received a series of “excellent” ratings, but testimony showed that such ratings were virtually automatic in the FBI, with 90% of the bureau’s agents placed in the same category.

Suspension Over Weight

Miller had been suspended without pay because of his weight in September, 1983. At the same time, he was taken off his normal cases in the Soviet counterintelligence squad in the FBI’s Los Angeles office and assigned to monitor FBI wiretaps, a job he frequently complained about to other agents.

In April, 1984, he was again suspended without pay because of his weight, this time for two weeks. Later, he was placed on probation. Agents testified at Miller’s trial that he complained the FBI was out to fire him, and the government portrayed him as a “classic target” for KGB recruitment when Ogorodnikova called Miller on May 24, 1984, a short time after one of her frequent trips to Moscow and a day after a visit to the Soviet Consulate in San Francisco.

Miller, not knowing the identity of the female caller, received permission from the head of the Soviet squad, Gary Auer, to meet with her. Later in the day he reported back to Auer that the woman he met was Ogorodnikova.

Auer testified that he called John Hunt, a counterintelligence agent who had previous dealings with Ogorodnikova, and that they advised Miller to have no further contact with her because she had been troublesome in the past and had questionable loyalties. Miller claimed earlier that they only warned him to “proceed with caution.”

While Miller was talking to Auer and Hunt, Ogorodnikova was waiting for him not far from the FBI’s Westwood offices. That afternoon they drove to Malibu, and Miller later testified in the trial of the Ogorodnikovs that they talked about their mutual problems.

Either on that meeting or a second meeting a few days later, Miller and Ogorodnikova began the sexual relationship that was to continue until shortly before their arrests. On June 21, 1984, Ogorodnikova went to Moscow for a month, returning July 24 and contacting Miller shortly after her return.

Restaurant Meeting

A critical meeting was on the night of Aug. 5, 1984, at the Charthouse Restaurant in Malibu.

“We were in the lounge area in a corner that faced the ocean,” Miller testified at the trial of the Ogorodnikovs. “She said she was a major in the KGB. ‘My government pays a lot of money for information.’ I decided to string her along. I wouldn’t do anything like that for less than $1 or $2 million.

“I said ‘I don’t believe what you’re saying,’ ” Miller continued. “She said, ‘You must believe.’ I thought I’d play along to see where this crazy lady was going. I told her I would provide no information at all, but I would be willing to meet somebody. Before I met anybody, I wanted $50,000 in gold in three different safety deposit boxes.”

Two nights later, Miller and Ogorodnikova had sex at a Hollywood motel and Ogorodnikova suddenly asked Miller if he wanted to meet a man she identified as Nikolai Wolfson, described as the man in charge of KGB finances in the Los Angeles area. Miller agreed.

He found himself at 2 a.m. on Aug. 8 talking outside the Ogorodnikov apartment to a sleepy 52-year-old meatpacker clad in a bathrobe who turned out to be Ogorodnikova’s husband, Nikolai. Miller later said he had trouble understanding what Ogorodnikov said, but discussed the proposal for $50,000 in gold.

On Aug. 24, 1984, Miller and Ogorodnikova drove together to San Francisco, where she visited the Soviet consulate on Aug. 25. The day before his arrest as a Soviet spy, after first denying passing any documents, Miller told agents that he gave Ogorodnikova a copy of the FBI’s Positive Intelligence Reporting Guide and another unidentified secret document to take with her into the consulate. He also admitted giving her his FBI credentials to show the Soviets that she was dealing with a real FBI agent.

Beginning of Probe

The massive FBI investigation into Miller’s suspected espionage activities began after the trip to San Francisco. The FBI’s code name for the investigation was “Whipworm,” a reference to an internal parasite. Miller’s lawyers later claimed it showed that from the very beginning the FBI had a “preconceived notion of Miller’s guilt.”

Obtaining wiretaps on the telephones of both Miller and the Ogorodnikovs, the FBI intercepted conversations between Ogorodnikova and Soviet Vice Consul Aleksandr Grishin.

Grishin, identified by the FBI as a KGB agent, was later named as an unindicted co-conspirator in the case, immune from prosecution because of his diplomatic status. He returned to Moscow earlier this year on an “extended vacation.”

Miller volunteered his story first on Sept. 27 to P. Bryce Christensen, one of three assistant agents in charge of the Los Angeles office and his former boss on the Soviet counterintelligence squad.

He was interrogated for five days. Richard T. Bretzing, head of the FBI’s Los Angeles office, led the team of FBI agents that traveled to Miller’s home late on Oct. 2, 1984, and personally made the arrest of Miller after notifying him first that he had finally been fired by the FBI.

Times staff writers Jane Applegate, Leonard Greenwood, John Kendall, Kim Murphy and Ronald L. Soble contributed to this story.HOW JURY VOTED ON SEVEN COUNTS

Here is a breakdown of the jury’s final vote on the seven espionage counts facing Miller:

- Conspiracy to pass secret FBI documents relating to the national defense to the Soviet Union, a charge carrying a possible maximum life prison term. Ten votes for conviction, two for acquittal.

- Obtaining secret documents relating to the national defense with reason to believe that they would be used by the Soviet Union, a lesser charge with a 10-year maximum sentence. Ten to two for conviction.

- Passing a copy of the FBI’s Positive Intelligence Reporting Guide to the Soviet Union, knowing that it could harm the United States, a maximum life sentence. Ten to two for conviction.

- Passing a classified document to the Soviet Union, a lesser charge carrying a maximum 10-year sentence. Eleven to one for conviction.

- Soliciting $50,000 in gold to provide secret documents to Svetlana Ogorodnikova and other Soviet agents, a bribery charge with a 15-year maximum sentence. Eleven to one to convict.

- Soliciting $15,000 in cash to meet with Soviet officials outside the United States and to deliver official FBI documents to them, another bribery charge with the same penalty. Eleven to one in favor of conviction.

- Agreeing to receive a $675 Burberry trench coat for a planned trip to Vienna or Warsaw to meet with Soviet agents, another bribery count carrying 15 years in prison. Eleven to one for conviction.

THE MILLER CASE

May 24, 1984--Miller meets Svetlana Ogorodnikova for first time and begins sexual affair shortly afterwards.

Aug. 5--Miller says Ogorodnikova tells him she is a major in Soviet KGB and offers him money for FBI secrets.

Aug. 8--Miller meets Nikolai Ogorodnikov, and discusses meeting Soviet officials for $50,000 in gold.

Aug. 25--Miller and Ogorodnikova arrive in San Francisco, where she visits Soviet Consulate. Allegedly takes Miller’s FBI credentials, a copy of secret Positive Intelligence Reporting Guide and another secret document.

Sept. 1--Alerted by the San Francisco trip, FBI launches a massive espionage investigation code-named Whipworm, a reference to an internal parasite.

Sept. 25--FBI surveillance agents follow Soviet Vice Consul Aleksandr Grishin to San Francisco International Airport, where he calls Ogorodnikova to discuss plans for a trip with a “friend” to Warsaw.

Sept. 27--Miller tells FBI official P. Bryce Christensen he has been secretly involved with Ogorodnikova to penetrate a Soviet KGB spy ring.

Sept. 28--Five-day FBI interrogation of Miller begins. It continues until Miller admits passing documents to Ogorodnikova.

Oct. 2--Miller and the Ogorodnikovs are arrested on espionage charges.

Oct. 12--Grishin named as an unindicted co-conspirator with Miller and the Ogorodnikovs. The Soviet KGB agent, immune from prosecution because of his diplomatic status, later returns to Moscow.

Oct. 21--Miller and the Ogorodnikovs plead not guilty to espionage charges in front of U.S. District Judge David V. Kenyon, who later severs the cases and orders the Ogorodnikovs to be tried first.

March 5, 1985--After defense lawyers outline their strategies in The Times, Kenyon imposes a gag order on all lawyers banning future comment. He declares: “This trial will not become a circus show outside the courtroom.”

April 19--The trial of the Ogorodnikovs begins.

June 26--After 27 days of prosecution testimony, Ogorodnikov pleads guilty to espionage conspiracy in exchange for an eight-year sentence. Ogorodnikova pleads guilty to the same charge and later is sentenced to 18 years in prison.

Aug. 6--The Miller trial begins. The prosecution calls 75 witnesses in 25 days of testimony. The defense rests Oct. 4 without calling Miller, presenting 41 other witnesses in an 11-day defense.

Oct. 18--After rebuttal testimony, wrangling over jury instructions and closing arguments by both sides, the case goes to the jury.

Nov. 6--Mistrial declared after jury deadlocks.