Judge Lifts Testimony Ban in Miller Trial

In a dramatic reversal of a crucial ruling in the espionage retrial of Richard W. Miller, a federal judge Tuesday lifted a ban on testimony about a prolonged relationship between convicted Soviet agent Svetlana Ogorodnikova and retired FBI Agent John Hunt that began in 1982.

U.S. District Judge David V. Kenyon, who had dealt what appeared to be a devastating blow to the defense less than 24 hours earlier by banning such testimony, said he reconsidered his position after “lying in bed thinking about it” during the night.

Kenyon, who initially ruled that any testimony by Hunt and Ogorodnikova be limited to their activities in 1984, said his decision was prompted by a defense motion Monday asking him to strike the testimony of six prosecution witnesses who have already testified about Ogorodnikova’s activities before 1984.

“I had it all figured out until I had this all dumped on me,” Kenyon said.

At first, Kenyon said, he was “taken aback” by the defense motion. But the judge added that he felt it necessary during the night to reconsider his initial rejection of the motion because of the “enormity of the ramifications” of the decision.

“The case is important enough not to stand on ceremony,” Kenyon said. “We see an inconsistency. . . . The realities are that we have an opening statement by the prosecution and witnesses that refer to Mrs. Ogorodnikova’s state of mind. The court cannot say the defense can’t bring in other things that show her intent.

“It seems to me there are factors that just have to be considered,” Kenyon added. “One is what appears to be fair. When it comes to Mrs. Ogorodnikova’s intent, the court must modify its decision. It’s a matter of balance.”

Kenyon made it clear that one of his concerns was the possibility of subsequent reversal by the U.S. 9th Circuit Court of Appeals.

“The thing’s been going on for a year and a half,” he said. “I’ve heard it twice already. That’s twice as much as any Court of Appeals will have heard it, too. And that’s a concern of mine, bless their souls.”

Just as Kenyon’s ruling Monday had visibly upset Miller’s lawyers, Joel Levine and Stanley Greenberg, his reversal Tuesday caught federal prosecutors off balance and left them noticeably irritated with the sudden switch.

Hunt, 54, a retired FBI counterintelligence agent, first met Ogorodnikova in 1980 and made a serious effort to recruit her as an FBI informant in 1982 and 1983. Ogorodnikova has claimed she had a sexual relationship with Hunt--which Hunt denies--before her subsequent affair with Miller in 1984.

While U.S. Atty. Robert C. Bonner and Assistant U.S. Atty. Russell Hayman have claimed that the Hunt-Ogorodnikova relationship merely confuses the issues in the Miller case, defense lawyers contend that the earlier relationship is crucial to establishing a precedent for Miller’s later involvement.

In Miller’s first trial, the prosecution called Hunt as one of its key witnesses. When that trial ended in a deadlocked jury, however, jurors cited Hunt’s testimony as one of the factors that led to the mistrial, prompting the government to reassess Hunt’s effectiveness as a witness.

Appearance Postponed

As Miller’s retrial opened Feb. 25, Bonner still referred to the early Hunt-Ogorodnikova relationship in his opening statement. A series of prosecution witnesses subsequently testified about Ogorodnikova’s pro-Soviet activities before her involvement with Miller, which started May 24, 1984.

Hunt, who now lives in Seattle, was prepared to testify early in the trial when the prosecution suddenly decided to postpone his appearance--the first public indication that a major change in the prosecution’s case was emerging.

Last week, after the defense announced plans to call Ogorodnikova as their first witness, Bonner and Hayman suddenly moved to cut off any testimony by her or Hunt about their relationship in 1982, arguing that Hunt’s testimony on the subject in the first trial had “confused and misled” the jury.

Bid to Block Testimony

After Kenyon’s reversal Tuesday, Bonner made one last-ditch attempt to block testimony about the Hunt-Ogorodnikova relationship before 1984 by proposing to strike the testimony of four of his own witnesses.

Kenyon, however, denied Bonner’s motion, and ordered the prosecution to begin its examination of Hunt, who described his first meetings with Ogorodnikova in 1980 and 1982. Hunt stopped Tuesday while describing a June 6, 1982, meeting with the Russian emigre, during which she allegedly propositioned him sexually. Hunt is expected to resume today by recounting that he rejected the overture and others that followed.

As Hunt left the witness stand Tuesday, Ogorodnikova, sentenced to 18 years in prison for espionage conspiracy, made her first courtroom appearance during Miller’s two trials for a conference on how her scheduled testimony should proceed.

Conference Cast Doubt

The brief conference cast doubt on whether she may testify at all. Her lawyers told Kenyon that they will instruct her to invoke her Fifth Amendment protection against self-incrimination on most questions, and Bonner retracted a statement made during the first Miller trial that he would not oppose a grant of immunity for her to protect her from additional prosecution.

With the matter unresolved, Miller’s lawyers appealed to Kenyon to order her to testify and grant her a limited immunity from prosecution without the consent of the government.