U.S. Official Says Retrial of Ex-FBI Agent Almost Certain

A retrial of former FBI Agent Richard W. Miller is a “virtual certainty” in the wake of a federal appeals court ruling overturning his conviction as a Soviet spy, U.S. Atty. Robert C. Bonner said Wednesday.

Bonner, commenting on Tuesday’s reversal of Miller’s conviction by the U.S. 9th Circuit Court of Appeals, said he will make a decision in the next few weeks with Justice Department officials in Washington on whether to seek an immediate retrial of the first FBI agent ever found guilty of espionage.

Other options to be considered include appealing the ruling of the three-judge panel to an 11-judge panel representing the entire appellate court or to appeal directly to the U.S. Supreme Court for a review of the Miller reversal.

Miller, 51, was arrested in October, 1984, on charges of passing FBI secrets to the Soviet Union during a romance with Soviet emigre Svetlana Ogorodnikova, who was subsequently convicted with her husband, Nikolai, as a Soviet spy. The Ogorodnikovas are both serving federal prison terms.

Tried Twice

In a case that stretched over two years of courtroom maneuvering, Miller was tried twice as a spy. His first trial ended in a deadlocked jury in 1985. He was found guilty in a second trial that ended in June, 1986, and was sentenced to two life prison terms plus 50 years.

That conviction was overturned Tuesday, however, by a finding that U.S. District Judge David V. Kenyon abused his discretion during Miller’s trial by allowing too much testimony by FBI agents about the details of polygraph tests flunked by Miller.

While polygraph tests are sometimes permitted in federal court to show the state of mind of defendants, their use is limited. And federal appeals courts across the nation are divided over the circumstances in which they can be used.

Miller, who claimed that he was trying to use Ogorodnikova as a double-agent to salvage a failing career, first denied ever passing documents to her. After being told that he had failed polygraph questions, however, he told half a dozen agents that he had passed some secret information.

Miller’s admissions, still admissible as evidence in any future trial, formed the basis of the government’s case against him. Kenyon allowed testimony about the polygraph tests--including specific questions that Miller failed--to show what may have led to his decision to begin changing his story.

While stopping short of ruling that no polygraph testimony could be permitted in Miller’s trial to show his state of mind, the 9th Circuit Court panel said it was “more than likely” that the jury’s verdict was influenced by the polygraph evidence that Kenyon allowed.

Bonner’s quickness in declaring his intent to proceed with a third trial, barring some government victory in the appeals process, came after considerable speculation that the reversal by the 9th Circuit Court panel might trigger plea-bargain talks between Miller’s lawyers and the government involving a guilty plea to some lesser charge than espionage, possibly bribery or embezzlement.

Government’s Position

Both Bonner and officials in Washington, however, made it clear that Miller’s position as the first FBI agent convicted as a spy makes it impossible for the government to back down from its original charges for the sake of avoiding another time-consuming and potentially embarrassing public trial.

Bonner, who is expected to leave his job for a federal judgeship in the next few months, said: “I’m virtually certain the case will be retried whether I’m U.S. attorney or not. In the next few weeks we will decide which course to take.”

Agreeing with Bonner were officials in Washington, who expressed surprise at the court’s decision and privately voiced doubts that the polygraph testimony had been a major influence on any jury decision in the Miller case. They said any decision must ultimately be approved by Atty. Gen. Dick Thornburgh.

“Retrial is inevitable,” said one official who declined to be identified by name or agency. “We’ve got to do something. We’re not going to let go.”

While government officials pondered their next moves, two members of the jury that convicted Miller expressed unhappiness with the appellate panel’s opinion, written by Judge Dorothy W. Nelson of Pasadena, with Judges Stephen Reinhardt of Los Angeles and Diarmuid F. O’Scannlain of Portland in agreement.

“As far as I know the polygraph evidence was not even discussed in deliberations,” said Dale Lowery of Los Angeles. “It was not a factor at all in our decision. I’m a little bit insulted thinking that the appeals court thinks the jury cannot take the judge’s instructions and follow them that we couldn’t consider the polygraph tests. We just blocked it out of our minds right there.”

Said Mollie Doyle, a juror from Arroyo Grande in San Luis Obispo County:

“I don’t believe the polygraph testimony had any influence on us. We were instructed to disregard any evidence about it, and we didn’t put any weight on it whatsoever. Far more important were Miller’s own statements about what he had done.”

Miller’s lawyers, Stanley Greenberg and Joel Levine, agreed with Bonner Wednesday that a third trial is probable. They said they assume there will be some talks about a possible settlement, but expressed doubt that the two sides can find any room to negotiate a plea bargain.

Miller, who has been in federal custody for 4 1/2 years, remains in federal prison in Minnesota. His lawyers plan to ask Judge Kenyon to grant him release on bail, but were not optimistic about their chances. If Kenyon denies bail for Miller on grounds that he remains a flight risk, the defense may appeal to the 9th Circuit.

While the panel’s ruling overturned Miller’s conviction, it does not become legally official until it is officially recorded by the U.S. District Court. Until such time, Miller remains a convicted spy in the eyes of the law. Eventually, however, his legal status will return to that of an accused criminal awaiting trial.

Contributing to this article was Times staff writer Ronald J. Ostrow in Washington.