Prosecutors Shift Course in Miller’s Spy Retrial

Federal prosecutors reversed course in the Richard W. Miller espionage retrial Tuesday by moving to block any testimony about a controversial relationship between Svetlana Ogorodnikova and former FBI Agent John Hunt that preceded Miller’s involvement with the convicted Soviet agent.

The government asked U.S. District Judge David V. Kenyon to ban both Hunt and Ogorodnikova, if she is called as a defense witness in Miller’s second spy trial, from discussing any aspects of the relationship that began in 1982, when Hunt tried to recruit her as an FBI informant.

During Miller’s first trial, which ended in a deadlocked jury last November, Hunt was a key prosecution witness, testifying for three days about his relationship with Ogorodnikova during 1982 and 1983 and denying Ogorodnikova’s claims that he had been involved with her sexually.

To ‘Confuse’ the Jury

Although the government itself had brought out most of Hunt’s testimony in the first trial, prosecutors argued Tuesday that the testimony had only served to “confuse” the jury, whose members later cited Hunt’s testimony as one of the factors contributing to the eventual deadlock.

“The vast majority of his testimony was devoted to his 1982 contacts with Svetlana Ogorodnikova,” Assistant U.S. Atty. Russell Hayman wrote in a memo to Kenyon. “The government submits that such testimony was confusing, misled the jury as to the issues in the case and was wasteful of the court and jury’s time.”

The government request, which Kenyon took under consideration pending Hunt’s expected appearance as a prosecution witness Thursday, followed the disclosure last week that Miller’s lawyers now plan to call Ogorodnikova as a defense witness in Miller’s second trial as soon as the prosecution rests its case.

Quickly responding to the prosecution move, Miller’s lawyers, Joel Levine and Stanley I. Greenberg, pointed out that U.S. Atty. Robert C. Bonner had focused on Hunt’s relationship with Ogorodnikova in 1982 and 1983 during his opening remarks to the jury at the start of the second trial Feb. 25.

Levine asked Kenyon to declare a mistrial on grounds that Bonner was guilty of prosecutorial misconduct for first raising the issue to the jury, then abandoning it. Kenyon also took the mistrial motion under consideration, but noted that “bad faith” would have to be established for any such motion to be granted.

In protesting the government move, Levine argued that a central theme to Miller’s defense is that his proclaimed goal of trying to use Ogorodnikova to infiltrate the Soviet KGB was essentially no different than Hunt’s earlier efforts to recruit Ogorodnikova as an FBI informant.

“We argued that Miller had a reasonable objective. We expect to show that Hunt’s efforts basically had a similar objective,” Levine said. “This jury should know that at least this objective was considered relevant by the FBI, although Miller admittedly went about it in an unauthorized manner.”

Reasonable Doubt Cited

In asking that Hunt and Ogorodnikova be banned from discussing their relationship before 1984, when Miller and Ogorodnikova began their involvement, Bonner and Hayman said any such testimony would be irrelevant unless it could be established that Miller had known of the contacts between Hunt and Ogorodnikova.

Arguing before Kenyon, Hayman claimed that no such foundation could be established, adding that even Hunt eventually could not decide Ogorodnikova’s state of mind in terms of her loyalties to either the United States or the Soviet Union.

“That’s what reasonable doubt is all about,” Levine responded, claiming that the Hunt testimony in the first trial provided a “gray area” in the trial that muddied any simple conclusions about Miller and Ogorodnikova.

“The prosecution has now come to some kind of realization that the testimony they initiated is no longer advantageous to their case,” Levine added.

Hunt, 54, took the witness stand as an early prosecution witness in the first Miller trial and was originally scheduled to testify early in the second trial. On March 12, however, the prosecution suddenly rejuggled its witness list to place less emphasis on Hunt’s testimony and put him toward the end of the 70 prosecution witnesses expected to testify.