Miller Defense Gambling on Testimony by Ogorodnikova

The defense played it relatively safe in the first espionage trial of Richard W. Miller, and the result was a near conviction of the first FBI agent ever charged with spying.

As Miller’s second trial opened in February, his lawyers were confronted with a decision on whether to change their strategy and come out gambling.

They decided to gamble April 22--by calling convicted Soviet spy Svetlana Ogorodnikova as their first witness.

This week the defense attorneys plan to rest their case after calling more than 30 other witnesses. But Miller’s chances of acquittal hinge largely on whether or not the gamble on Ogorodnikova ultimately pays off.

Ogorodnikova, 36, and her husband, Nikolai, 52, Russian immigrants living in West Hollywood, were arrested with Miller, 49, an FBI Soviet counterintelligence agent in Los Angeles, on Oct. 2, 1984, on charges of plotting with him to pass secret FBI documents to the Soviet Union.

Entered Guilty Pleas

She and her husband had pleaded guilty to espionage conspiracy at their own trial last year, but Ogorodnikova dramatically changed her story during 13 days of testimony in Miller’s retrial--proclaiming that she, her husband and Miller were innocent of any wrongdoing.

The question was whether any members of the second Miller jury would believe her story or any crucial portions of it. Ogorodnikova herself said she doubted an American jury would believe anything she said. But others close to both the prosecution and the defense were not so sure.

There was only one villain in the sometimes bewildering story she told from the witness stand, and it wasn’t Miller. Instead, she blamed virtually everything on another FBI counterintelligence agent, John Hunt, accusing him of having been her former lover and mentor in FBI intrigue two years before she first met Miller in May, 1984.

As sources close to the Miller case reviewed the possible impact of Ogorodnikova’s testimony on the jury last week, they saw ways in which her testimony may have both helped Miller and hurt him.

To the extent in which her testimony about Hunt shifted the focus from Miller, the gamble was a possible plus for the defense, simply because it highlighted a confusing side issue to the case that gave jurors something to think about besides the issue of whether Miller in fact passed secret documents to the Soviet Union.

‘Something Different’

“The defense had to do something different in the retrial,” one source said. “In effect, they called her simply to stir up the drink a little bit. They really didn’t have much to lose, considering the outcome of the first trial.”

In the first trial, the jury had deadlocked and a mistrial was declared by the judge presiding over the case in Los Angeles federal court. Although the mistrial was a setback for the government, Miller’s lawyers saw little reason for optimism about their chances in a second trial.

Ten out of 12 jurors had favored convicting Miller on the three most serious of seven espionage and related bribery charges against him, and only one juror had blocked Miller’s conviction on four lesser counts.

The fact confronting defense lawyers Stanley Greenberg and Joel Levine was that the government’s chances for conviction go up in a retrial, not down.

Rather than repeat their defense case a second time, knowing that prosecutors would have months to prepare for it, Miller’s lawyers looked to Ogorodnikova.

But their decision to call her as a witness backfired in one important area with the surprise disclosure during her testimony that she had secretly admitted passing secret documents from Miller to the Soviets during her guilty plea last June.

U.S. District Judge David V. Kenyon had agreed to keep the confession a secret, even from Miller’s lawyers, on grounds that public release of the admission might jeopardize Ogorodnikova’s relatives, including her mother and 14-year-old son, inside the Soviet Union.

Aware of Confession

U.S. Atty. Robert C. Bonner and Assistant U.S. Atty. Russell Hayman, prosecutors in the case, had tried to block Ogorodnikova from testifying at all, although they knew that she had made the secret confession and that disclosure would hurt the defense.

Caught by surprise, Miller’s lawyers charged that they had been unfairly lured into a carefully planned trap by the prosecution. But Kenyon, showing increasing irritation with defense tactics, was unsympathetic to their protests.

The judge, who has indicated he plans to hold Greenberg in contempt of court at the end of the Miller trial on grounds of misconduct by the defense, dismissed a defense motion for a mistrial on grounds of prosecution misconduct linked to the secrecy over Ogorodnikova’s previously undisclosed confession.

Kenyon later ruled that Miller’s lawyers could not introduce statements by Ogorodnikova on seven other occasions when she had denied ever receiving documents from Miller, finding that she had obvious motives from the moment of her arrest to “fabricate” such denials.

Bad for Defense

The series of rulings by Kenyon clearly hurt the defense, and Miller’s lawyers devoted much of their energy in the aftermath of Ogorodnikova’s testimony searching for other witnesses who could bolster her credibility with the jury.

One witness last week was Irene Salinger, the daughter of former White House Press Secretary Pierre Salinger. She is a Russian immigrant who arrived in Los Angeles in 1976 and knew Ogorodnikova during the time of her alleged affair with Hunt, a relationship which Hunt denies.

Salinger described a meeting with Ogorodnikova at the Cafe Casino in Westwood that, according to Ogorodnikova, took place the day after a meeting with Hunt in late 1982 or early 1983 in which Hunt allegedly told her that the FBI had had no further use for her services as a potential informant.

“She did tell me there was an affair and the wife found out,” Salinger said. “She was told the only reason he was involved was because it was his assignment. She said he told her that, and that broke her heart.”

Objections Overruled

Salinger’s limited testimony was allowed by Kenyon over objections by the government that the issue was irrelevant and potentially confusing to the jury. And Kenyon himself expressed reservations about permitting it, observing that the FBI agent on trial in his courtroom was named Miller, not Hunt.

“The main difference in Miller’s retrial has been that the prosecution has placed less emphasis on Hunt and the defense has put more emphasis on Hunt in the second trial,” one source close to the trial said.

“In effect, the defense used Ogorodnikova to try to put Hunt on trial, instead of Miller. Whether that will work or not remains to be seen. The first trial makes it pretty clear that you only need to convince one juror that Miller shouldn’t be on trial.”

Ogorodnikova’s performance as a witness could have worked against Miller, however, the source continued.

‘Real Soviet Side’

“Now the case has a real Soviet side to the jury,” he said. “They’ve seen the Soviet agent who Miller has said was trying to recruit him for the KGB. Svetlana isn’t just a picture to them anymore.

“They watched her take over the courtroom while she was a witness. She was even calling the breaks instead of the judge whenever she wanted to. They’ve seen how she can manipulate people. What they’ll make of that remains to be seen.”

Miller, who did not testify in his own trial, was forced to testify under a grant of immunity in the trial of the Ogorodnikovs and was judged by both sides to be a disastrous witness. Courtroom comments by his lawyers last week indicated he will not be called at the end of the defense case.

Miller claims that Ogorodnikova attempted to recruit him for the Soviet KGB, but that he was just “playing along” with her in an effort to end his mediocre career by becoming the first FBI agent to actually infiltrate a Soviet spy ring.

Before his arrest, Miller broke down under FBI questioning and confessed to half a dozen agents that he had actually passed classified FBI documents to Ogorodnikova in the course of their relationship. Those admissions, which Miller now disavows, form the heart of the prosecution’s case against him.

Because of Ogorodnikova’s secret confession to Kenyon last June that she received documents from Miller--which she now also disavows--any jurors leaning toward acquittal will have to overcome the fact that both major figures in the Miller case have at one time or another confessed to passing FBI documents.

“Miller’s lawyers have to first convince the jury that Miller made a series of false confessions and then that Svetlana made a false confession too,” another source close to the Miller case said. “Maybe they can do it, but it’s a big hurdle to have to attack two different confessions as being false.”