Appeals Judges Question Tactic in Ex-FBI Agent’s Spying Trial

A federal appeals court panel on Wednesday sharply questioned whether details of lie detector tests flunked by former FBI Agent Richard W. Miller before his arrest as a Soviet spy should have been repeatedly presented to jurors who convicted Miller of espionage.

At an unusually long, two-hour hearing, three judges of the U.S. 9th Circuit Court of Appeals voiced serious concerns about the use of polygraph evidence in both of Miller’s espionage trials in Los Angeles federal court.

Miller, the first FBI agent ever accused of passing government secrets to the Soviets, was tried in 1985 but the jury deadlocked. He was retried in 1985, was convicted and sentenced to two consecutive life terms in prison.

Testimony About Tests

During Miller’s trials U.S. District Judge David V. Kenyon permitted testimony about polygraph tests during which Miller was asked whether he had passed secret information to the Soviet Union. During the tests, Miller denied passing secrets to the Soviets. He later changed his story and confessed after being told that he had flunked the polygraphs.

Kenyon had ruled that the polygraph tests could be discussed to show Miller’s “state of mind” before his confessions and arrest on Oct. 2, 1984. In challenging that ruling, Miller’s lawyers argued Wednesday that the admission of the test results was without precedent in the 9th Circuit.

The use of polygraph evidence has been rare in federal courts. Prosecutors and defense attorneys in the Miller appeal cited only two cases, both from other federal circuits, in which polygraph evidence has been allowed. In those cases, however, the evidence was introduced to show that the defendants’ confessions had not been coerced.

A 9th Circuit panel of Judges Stephen Reinhardt and Dorothy W. Nelson of Los Angeles and Diarmuid F. O’Scannlain of Oregon sharply questioned both government and defense lawyers on the question of polygraph evidence.

They also raised questions about other decisions by Kenyon to exclude some statements by Miller indicating that he was exhausted during the FBI interrogation that preceded his arrest.

Nelson announced first that each side would have 30 minutes to present its case, but later extended that to twice the allotted time when it became clear that the defense needed more time.

“It’s too important a case,” she said. “We will give you some additional time.”

Miller was a counterintellience agent on the FBI’s Soviet squad in Los Angeles, and in trouble for chronic obesity and poor performance when he met Svetlana Ogorodnikova, a Soviet emigre living in Los Angeles, in early 1984. The two began a sexual relationship that quickly led to an espionage conspiracy involving Miller, Ogorodnikova and her husband, Nikolai.

Defense lawyers Stanley I. Greenberg and Joel Levine, who represented Miller during both of his trials, raised 15 appellate issues, ranging from the polygraph issue to allegations that Miller’s FBI interrogators did not follow agency rules in their interviews, showing “bias” toward Miller.

“There is no dispute over what Miller said to his interrogators,” responded Assistant U.S. Atty. Russell Hayman. “Quite frankly, who cares if the interviewers were biased or not?”

While the panel appeared ready to dismiss some of the issues as irrelevant to the outcome of the trial, the judges--especially Reinhardt and Nelson, two of the most liberal judges on the 9th Circuit--returned repeatedly to the use of testimony about the lie detector.

Responding to a question from Reinhardt, attorney Levine said the polygraph testimony allowed in Miller’s trial had, in effect, told jurors that Miller was lying when he denied passing documents to the Soviets. Reinhardt later told Hayman that the government could have handled the issue in a less “prejudicial” manner.

Another issue in the Miller appeal was whether Kenyon erred in allowing testimony that Miller had sold Department of Motor Vehicles information to a private investigator before his involvement with Ogorodnikova in passing documents to the Soviet Union.

The testimony was allowed by Kenyon on grounds that it showed a pattern of behavior.

Reinhardt was openly skeptical of the comparison, however, noting that it is a frequent practice for police to sell or give driver’s license information to personal injury lawyers.

When Hayman insisted that the DMV information was sensitive and relevant, Reinhardt countered:

“What was sensitive? There is a somewhat different quality between selling state secrets to the Russians and selling driver’s license information. I don’t think every police officer who sells that would be a traitor. If you are arguing the crimes are equal, then the sentence here is terribly unfair.”

The 9th Circuit may take as long as six months in deciding the Miller case. If Miller’s conviction is reversed, a new trial would be likely. The government, however, would first be expected to ask for an en banc review by the entire 9th Circuit and possibly by the U.S. Supreme Court.

Miller is serving his two life terms at a federal prison in Minnesota. Svetlana Ogorodnikova is serving an 18-year term in a prison at Pleasanton, Calif., and her husband, Nikolai, is confined in a federal prison near Phoenix.