Duel Over Witnesses : Miller Trial Lawyers Play Cat-Mouse Game

Lawyers on both sides in the espionage retrial of Richard W. Miller tried to outsmart each other by switching their courtroom tactics Thursday in a legal battle of cat and mouse over the testimony of two key prosecution witnesses.

The most crucial duel was fought over the testimony of FBI Agent Paul DeFlores, who gave a dramatically different account of a chance encounter with Miller on Sept. 26, 1984, than he did when he testified as a surprise witness in Miller’s first trial last year.

In the first trial, DeFlores said he was parked in a Little League ballpark in Westwood, when he observed Miller with convicted Soviet agent Svetlana Ogorodnikova “25 to 30 feet away.” He said Miller spotted him at the same time.

“It appeared to me he had a surprised look on his face,” DeFlores testified in the first trial. “His eyebrows rose up and his eyes got a little larger.”

That testimony was a crucial element in the government’s argument that the only reason Miller reported his involvement with Ogorodnikova to FBI superiors the next day was that he thought he had been seen with her by an FBI surveillance agent.

In the first trial, however, defense lawyers Joel Levine and Stanley Greenberg challenged the notion that DeFlores could have seen any facial expressions by Miller. The jury was taken to the scene last Oct. 8 to judge for itself, and some jurors agreed it would have been almost impossible for Miller to have recognized DeFlores as he sat in his parked car at an actual distance of 43 feet.

On Thursday, however, the prosecutors, U.S. Atty. Robert C. Bonner and Assistant U.S. Atty. Russell Hayman, switched their tactics to make the point that Miller might easily have recognized the parked two-tone green 1979 Buick in which DeFlores was sitting, even if the agent’s features might have been hard to distinguish.

DeFlores altered his latest testimony substantially, saying this time that he was about “30 to 40 feet” away from Miller and initially avoiding any mention of his previous statements that Miller had recognized him.

“We made eye contact,” DeFlores said.

Car Well Known

The thrust of Bonner’s examination of DeFlores, a member of the FBI’s bank robbery squad, was to establish that his car was well known to FBI agents, including Miller, because DeFlores regularly parked it near the entrance of the FBI garage in Westwood, while waiting to respond to bank robbery calls.

On at least one occasion, DeFlores said, Miller had walked past him while he sat in his Buick in the garage.

Stealing the defense’s thunder from the first trial, Bonner concluded his examination of DeFlores by announcing that the prosecution will later request that the jury be taken to the Little League ballpark to examine the scene.

That left Levine with the decision of whether to bring up the fact that DeFlores had originally testified that Miller had recognized him, a line of questioning that could eventually backfire on the defense.

“Were there any gestures of recognition?” Levine asked, deciding to cite the earlier testimony.

“It appeared when we made eye contact he had a surprised look on his face,” DeFlores said.

Under intense questioning from Levine, the agent said that he had discussed his testimony for the second trial with Bonner on Monday but denied that he had been advised to avoid mentioning anything about Miller’s facial expressions.

“In our interview, he just advised me to say what I said last time. It was something I left out,” DeFlores explained.

The second prosecution witness caught in the legal maneuvering Thursday was FBI Agent David Van Bockern, who testified at the first trial that he had been following Ogorodnikova on Sept. 24, 1984, when his car ended up behind hers at a red light and apparently attracted her attention.

The license number of Van Bockern’s FBI car was subsequently found written on an envelope in Ogorodnikova’s car, and the government suggested in the first trial that Ogorodnikova had possibly passed the information to Miller, giving him another reason for coming up with a “bail-out” story on Sept. 27.

In the first trial, which ended in a hung jury, the defense made only a token effort to challenge Van Bockern’s testimony. This time, however, Greenberg was ready with a cross-examination aimed at establishing that Ogorodnikova could have written down the license number at any time during the monthlong investigation of Miller, even during the five-day period of FBI questioning that preceded his Oct. 2, 1984, arrest, when he had no contact with Ogorodnikova.

Followed Woman

Van Bockern said he had driven the same car every day for almost a month while following Ogorodnikova around Los Angeles and said he had continued to keep her under surveillance after Miller’s FBI interrogation began on Sept. 28, 1984.

“I have no idea when it was written down,” he said, referring to the license number of his FBI car.

As testimony ended Thursday, P. Bryce Christensen, one of three assistant special agents in charge of the FBI’s Los Angeles office, told how Miller informed him on Sept. 27, 1984, that he had been involved with Ogorodnikova for the previous four months in an effort to penetrate the Soviet KGB.

Christensen, the 55th prosecution witness in 14 days of testimony, will continue his testimony today. He will be followed by the first of the FBI agents who subsequently questioned Miller, until he finally admitted passing FBI documents to Ogorodnikova and was arrested as a spy.

Miller has claimed that he spoke to Christensen, because he could no longer continue his plan by himself and needed FBI help.

Ogorodnikova and her husband, Nikolai, pleaded guilty to conspiracy and are serving federal prison terms.