Spy Granted Immunity to Testify at Miller Trial

Clearing the way for a potentially explosive courtroom showdown, a federal judge ruled Friday that convicted Soviet spy Svetlana Ogorodnikova can testify under a grant of immunity next week as the first witness for the defense in the espionage retrial of former FBI Agent Richard W. Miller.

The ruling by U.S. District Judge David V. Kenyon was the second major setback for government prosecutors in a tumultuous week of courtroom skirmishing that left U.S. Atty. Robert C. Bonner protesting so heatedly that the judge threatened to cite him for contempt of court.

Ogorodnikova, who has never testified at any court proceeding about the events leading up to her involvement with Miller and subsequent arrest as a spy in 1984, has been viewed since the beginning of the Miller case as an unpredictable, high-risk witness whose testimony could prove devastating to either the defense or the government.

The Russian emigre, portrayed as an unhappy and emotionally troubled alcoholic by her attorneys during her own trial last year, presents a problem for the prosecution because of her previous claims that she had a sexual relationship with another FBI agent, John Hunt, before her affair with Miller two years later.

Gamble for Defense

But Ogorodnikova as a witness also represents a gamble for Miller’s defense lawyers on the crucial issue of what she will say about whether Miller, in fact, gave her secret FBI documents to pass on to the Soviet Union.

Kenyon’s decision to grant Ogorodnikova immunity despite the government’s protests came after the prosecution rested its case on the 28th day of testimony in Miller’s second spy trial, after calling a total of 63 witnesses. Miller’s defense lawyers, Joel Levine and Stanley Greenberg, decided not to call Ogorodnikova in Miller’s first trial, but are scheduled to put her on the witness stand when the defense case begins Tuesday.

The ruling by Kenyon followed another hotly disputed ruling by the judge earlier in the week, when he reversed himself and denied a government move to prevent either Hunt or Ogorodnikova from testifying about their relationship before 1984.

It was after that decision that the government announced it would not voluntarily grant Ogorodnikova immunity to testify, a reversal of Bonner’s position during the first Miller trial.

“I think there’s a good argument that when the government granted immunity in the first case, there was reason to take them at their word,” Kenyon said Friday. “On the other hand, the defense hasn’t made a case that Mrs. Ogorodnikova will testify in their behalf. It seems to be largely wishful thinking to me.

“But in the interests of justice--regardless of which way it goes--there is such a risk of violation of due process that the government must allow Mrs. Ogorodnikova to testify. In the final analysis, we are talking about a search for truth.”

After Kenyon’s ruling, Bonner rose to object to a comment by the judge that the prosecution’s move to block Ogorodnikova’s testimony had been “purely tactical.” The prosecutor said there was “a concern there might be things (crimes) disclosed by Mrs. Ogorodnikova for which she has not been prosecuted.”

“You were perfectly willing to do it at the last trial,” Kenyon retorted. “If you’re going to change your opinion and you don’t tell anybody about it, the defense has the right to rely on what you said earlier.”

Kenyon’s threat to cite Bonner for contempt came after the prosecutor switched his argument to point out that the defense had not called Ogorodnikova at the first trial, after obtaining the government agreement for immunity.

‘This Is Unprofessional’

“I’m leaving the bench,” Kenyon said, his voice rising. “This is unprofessional to reargue this case. It’s so wrong to do this to the court. If you argue the case you’re going to be found in contempt of court.”

The judge’s threat cut off any further effort by Bonner to attempt to limit the immunity grant to the period of Ogorodnikova’s relationship with Miller, setting the stage for the defense to begin its questioning of Ogorodnikova with her 1982 meetings with Hunt.

Ogorodnikova, meanwhile, was transferred from the Sybil Brand Institute for Women in Los Angeles to the federal Metropolitan Correctional Center in San Diego after an altercation with a sheriff’s jail guard Thursday morning.

Cmdr. Lee Baca of the Sheriff’s Department’s Custody Division, said Ogorodnikova, who was moved to Sybil Brand from a federal prison for women in Pleasanton earlier in the trial, refused to leave her cell to be transported to the U.S. Courthouse for a hearing Thursday “because she wanted to get herself dressed and prepared.”

Times staff writer David Freed contributed to this story.