Miller Spy Case: Focus on Jury Selection as Start of 2nd Trial Nears

Richard W. Miller, the first FBI agent ever charged with espionage, appeared to have gained about 20 pounds during the months since the end of his first trial.

As the 250-pound Miller prepared for the start of the government’s second attempt to convict him as a Soviet spy, his chronic weight problem was again one of Miller’s nagging concerns.

Miller, bulging out of a rumpled three-piece suit, worried about his appearance as he complained to U.S. District Judge David V. Kenyon that he has not been getting enough exercise at Terminal Island federal prison, where he has been held without bail for the last 16 months.

“You are entitled to one hour of exercise daily,” Kenyon said, after checking with prison officials. “Are you getting it?”

“No, sir,” Miller said. “I ask every single day. I’ve been gaining weight, and it bothers me.”

Miller’s complaints were part of the general grumbling from almost everybody involved as lawyers focused last week on selecting a jury to decide Miller’s guilt or innocence on charges of passing secret FBI documents to the Soviet Union.

While Miller was worrying about his weight, both his lawyers and prosecutors were complaining about the jury selection process as well as the unwillingness of many prospective jurors to sit through a time-consuming trial.

Other Complaints

Miller, in his first prolonged courtroom dialogue with Kenyon since his 1984 arrest on espionage charges, voiced other concerns about his treatment in prison as his second trial neared.

Another complaint was that he was not allowed to take a shower in the morning on the days of his appearances in court, but Kenyon said that was prison policy to avoid delays in transporting prisoners to the U.S. courthouse in Los Angeles.

“They do wake me up at 4:30 in the morning, and the marshals don’t come until 7 a.m.,” Miller protested.

“But if I have to take my shower in the evening, then the evening’s fine,” Miller added, shrugging as he accepted the judge’s view that the policy was probably unchangeable.

On Tuesday, less than four months from the inconclusive ending to Miller’s first spy trial, U.S. Atty. Robert C. Bonner will begin his second attempt to convict Miller of seven espionage and bribery charges carrying the maximum penalty of life in prison.

The first trial took three months, including two weeks of jury deliberations that ended in a deadlock and a mistrial last Nov. 6. While 11 jurors ultimately favored convicting Miller on at least some of the charges against him, one juror forced the second trial by holding out for acquittal on every count.

Jury Selection Watched

Because the first trial had ended in such a lopsided deadlock, there was special focus on the selection of the jury for the second trial by both the defense and the prosecution.

Miller’s lawyers, Joel Levine and Stanley Greenberg, hoped to find more jurors like the holdout in the first trial, Virginia Hennes, a Fountain Valley mental health worker working on a doctorate in psychological studies.

The strategy of Bonner and Assistant U.S. Atty. Russell Hayman was to keep potential jurors with strong psychology backgrounds off the second jury. Their preference was to find jurors with a background in the aerospace and defense industries, preferably those who had security clearances.

As both sides approached the task of jury selection, the defense was quick to object that the prosecution had the advantage in analyzing potential jurors because it could use government computers to put together juror profiles.

“It’s unfair,” Greenberg said. “The court should provide us funds for an equivalent computer to operate.”

As Kenyon dismissed the request of the defense, Hayman defended the government by saying that the prosecution was only using a “desk-top microcomputer of the type made by Radio Shack.” Bonner, meanwhile, pointed out that the defense had its own special weapon in finding desirable jurors--an Orange County psychologist who was observing the “body language” of potential jurors to see if they were likely to be sympathetic to Miller.

The jury expert was Wendy Saxon, 36, a specialist in psychodiagnostics, who was serving without pay. While Bonner and Hayman studied their computer readouts looking for aerospace workers, she spent four days looking in vain for a new juror who could match Hennes’ background.

Ultimately, neither side found what they had hoped to find in a new jury. The prosecution challenged most of the top defense choices for the jury, and the defense knocked off the few aerospace workers who didn’t disqualify themselves by saying they would resent having to be part of the Miller jury.

One after another, prospective jurors told Kenyon that it would be a financial or a personal hardship for them to serve on a jury for 10 weeks or longer. Their excuses ranged from the loss of income to scheduled vacations and, in the case of one potential juror, plans to participate in an upcoming bowling tournament.

Bonner, increasingly displeased as several aerospace employees claimed financial hardship, finally clashed with Kenyon over the judge’s decision to disqualify one Boeing Co. employee who said that serving on the jury would “definitely be a sacrifice because this particular period where I work is going to be very, very busy.”

After twice protesting Kenyon’s decision, Bonner was warned by Kenyon that he was on the verge of contempt. At the same time, Miller’s lawyers asked for a mistrial, claiming that Bonner was actually trying to place hardship cases on the jury on the alleged theory that they would want to convict Miller quickly just so that they could get back to their jobs.

Continuing Gag Order

By their comments in the courtroom, both sides made it clear they did not view the jury that was ultimately selected to be representative of the overall jury pool in the Los Angeles area. Restrained by Kenyon from discussing the case by a continuing gag order, however, neither side ventured any public comment about the possible significance of the jury’s makeup.

Among the 12 jurors selected for the second trial were a market researcher for Toyota, the manager of a Los Angeles law firm, an office worker in the student health center at the University of California at Irvine and a Compton housewife and mother of three who prompted an inquiry about her health from Kenyon by slumping into her jury seat and covering part of her face with her hand. “Are you all right, ma’am?” Kenyon asked. “Yes, your honor, this is the way I always sit.”

Others on the panel included a teacher’s aide, a retired mathematics teacher, the mother of a Los Angeles County deputy sheriff, a medical laboratory technician, a business executive and a man who identified himself as the producer of two syndicated country music radio programs.

Beginning Tuesday, they will hear the government’s version of the events leading up to Miller’s arrest on Oct. 2, 1984, on charges of conspiring with Russian emigres Svetlana and Nikolai Ogorodnikov to pass secret FBI documents to the Soviet Union in exchange for a promised $65,000 in gold and cash, plus a Burberry’s trench coat and Ogorodnikova’s sexual favors.

The Ogorodnikovs pleaded guilty to espionage conspiracy during an earlier trial that ended last June, and are currently serving prison sentences imposed by Kenyon. Nikolai Ogorodnikov, 53, now claims his guilty plea was coerced by prosecutors and has a pending request before Kenyon to reopen his case.

Bonner and Hayman claim that Miller, 49, frequently disciplined by the FBI because of his weight, was unhappy with his treatment by his bosses when he met Svetlana Ogorodnikova in May, 1984, and began an affair that led ultimately to his arrest on espionage charges. They portrayed him in the first trial as a bitter adulterer with serious financial and personal problems that made him an “ideal target” for recruitment by the Soviet KGB.

Miller, whose wife is now seeking a divorce, has claimed since his arrest that he was involved with the Ogorodnikovs only in an attempt to salvage his FBI career by becoming the first agent in history to penetrate an active Soviet spy ring.