Secret Confession Stuns FBI Spy Trial

In a stunning disclosure that caught Richard W. Miller’s lawyers by surprise and increased her own credibility problems, convicted Soviet spy Svetlana Ogorodnikova revealed Thursday that she secretly confessed to a federal judge last June that she had received agency documents from the former FBI agent.

Her secret confession to the judge almost a year ago--made through her attorneys--directly contradicted seven days of Ogorodnikova’s testimony as a defense witness in Miller’s espionage retrial in which she has tearfully proclaimed Miller’s innocence and denied ever receiving secret FBI documents from him.

Ogorodnikova reluctantly confirmed the private statements about receiving documents in the first hour of a textbook cross-examination by Assistant U.S. Atty. Russell Hayman, who led her through a series of her current denials of guilt, forcing her to contradict herself on every occasion by admitting her previous confessions.

In short order, Hayman arrived at the secret testimony that the government had been saving to use against the defense following the risky decision by Miller’s lawyers to call Ogorodnikova as a witness on his behalf.

“At the time of your guilty plea, did you authorize your attorneys to tell this judge that Miller passed documents to you?” Hayman asked.

“Yes,” Ogorodnikova replied.

“Did you tell this judge you were afraid to admit that in open court because you were afraid of reprisals against your family in the Soviet Union?” Hayman continued.

“I think yes,” she answered.

Even as she confirmed her private confession to the judge under questioning, Ogorodnikova continued to disavow the previous admissions--denying that she ever actually saw any FBI documents or passed anything else from Miller to the Soviet KGB.

Ogorodnikova, who pleaded guilty to espionage conspiracy last June 26 along with her husband, Nikolai, had publicly confessed only to showing Soviet officials a “handwritten note” from Miller and his FBI credentials and to “unlawfully” plotting with Miller to eventually pass documents to Soviet officials in Eastern Europe.

Immediately protesting the fact that they were never told of the secret confession by Kenyon or government prosecutors, Miller’s lawyers unsuccessfully moved for a mistrial on grounds that they might have changed their plans to use Ogorodnikova as a witness if they had known that the government would be able to impeach her testimony with the previous confession.

After huddling in private with defense and prosecution lawyers, Kenyon denied the mistrial motion but confirmed during a break that he had kept the confession a secret, saying he believed that the other public admissions by Ogorodnikova June 26 were sufficient to establish her guilt.

Kenyon did not say specifically if Ogorodnikova’s fears for her relatives in the Soviet Union--her mother, a brother and her 14-year-old son, Matvei--were the reason for his secrecy.

“During the plea, her lawyers did put certain things on the record that are out now,” Kenyon said. “The court at the time did not feel it was appropriate (to reveal the secret admission.) The statement in court was sufficient. It seems to me it was most appropriate not to take her at her word.”

At the conference with Kenyon last June 26 were Ogorodnikova’s lawyers, Brad D. Brian and Gregory Stone, and two assistant U.S. attorneys, Richard Kendall and Bruce Merritt, the prosecutors in the trial of the Ogorodnikovs. Their comments have been kept under court seal by the judge.

Hayman, 28, one of the youngest of more than 100 federal prosecutors in the U.S. attorney’s office in Los Angeles, was assigned to work as U.S. Atty. Robert C. Bonner’s assistant during the first Miller trial, which ended in a mistrial last November because of a deadlocked jury.

Early in Miller’s second trial, the prosecution team decided that the combative young prosecutor would handle the cross-examination of Ogorodnikova if she was called as a witness and that Bonner would cross-examine Miller if the defense calls him.

Suddenly thrust into a star role in the Miller retrial, Hayman spent most of Thursday continuing to lead Ogorodnikova through a series of denials of any pro-Soviet activity following her arrival in the United States in 1973.

Much of her testimony has already been disputed by prosecution witnesses who testified earlier in the Miller retrial, and Hayman is expected to begin a strong attack on her credibility today by introducing more previously undisclosed statements by Ogorodnikova to FBI agents last year when she was attempting to negotiate a plea bargain.

Sources close to the case said Ogorodnikova’s secret confession through her attorneys to Kenyon is likely to become one of the major defense appeal issues if Miller is convicted. But several legal scholars said Thursday that the government is obliged only to provide evidence to the defense that goes to the testimony of government witnesses or might help prove a defendant’s innocence.

In Miller’s retrial, the government actually tried to block Ogorodnikova’s testimony and refused to grant her immunity, forcing Kenyon to do so without the government’s consent.

“It’s just the breaks of the game. They have to live with it. They called her,” one government prosecutor not connected to the Miller case said of the defense’s plight.

While some defense lawyers disagreed and said they thought there was a strong chance for a defense appeal on the issue, one leading law professor predicted that Miller’s lawyers, Stanley Greenberg and Joel Levine, would have little luck in challenging the surprise disclosure.

“I believe it’s not reversible error,” said USC law professor Charles Whitebread. “The Supreme Court said only last year that you have to show that even exculpatory evidence (tending to prove innocence) would have to have a direct impact on a case if it had been revealed to the defense.”

Gerald F. Uelmen, a professor at Loyola Law School, called the situation “unprecedented” and said it was impossible to predict the outcome of a possible future appeal.