Bail Ordered While Miller Awaits New Spy Trial - Espionage Case: The former FBI agent whose conviction was overturned has been in jail for five years.

The U.S. 9th Circuit Court of Appeals on Friday ordered a Los Angeles judge to hold a bail hearing for Richard W. Miller, a former FBI agent whose conviction on charges of spying for the Soviet Union was later overturned on appeal.

The decision by the three-judge panel in San Francisco paves the way for Miller’s release from prison for the first time in five years. He is being held at a medium-security prison in Rochester, Minn.

The court issued an order granting Miller’s motion that he be released on bail while awaiting a new trial on espionage charges.

Last April, the same panel overturned Miller’s conviction, saying he should be retried because jurors were allowed to hear too many details about lie detector tests that Miller failed.

In mid-July, U.S. District Judge David V. Kenyon denied Miller’s bid to be freed on bail pending his third trial. Kenyon said he based his decision on the weight of the evidence against the former FBI agent and the risk that Miller would flee.

The appellate judges, however, said the government “failed to show by a preponderance of the evidence” that Miller constituted a flight risk.

In their opinion, 9th Circuit Judges Dorothy Nelson, Stephen Reinhardt and Diarmuid O’Scanlain said they were persuaded by a federal probation report prepared last May that if Miller were properly supervised, he would show up for his new trial.

Prosecutors declined to comment Friday. But Joel Levine, one of Miller’s defense lawyers, said he is pleased by the ruling.

“It’s been a long time coming,” Levine said. “Richard Miller has been in custody five years, and to date he has not received a fair trial. Finally, he has a chance of vindication and freedom.”

Levine said probation officials indicated that they would be satisfied if Miller put up as bond three pieces of property valued at $350,000 to $400,000 that are owned by his friends. But the officials also said Miller should be kept under “close supervision” pending his third trial.

Miller, 52, was convicted by a Los Angeles federal court jury in June, 1986, for passing FBI secrets to the Soviet KGB during an adulterous affair with a married Russian emigre named Svetlana Ogorodnikova.

The U.S. government has expended enormous resources prosecuting Miller. His three-month trial in 1985 ended in a mistrial when jurors deadlocked after three weeks of deliberations. His second trial lasted four months, and Kenyon sentenced him to two life terms plus 50 years.

Miller, an excommunicated Mormon and father of eight, had numerous problems as an FBI agent. He asserted that his relationship with Ogorodnikova and her husband was an attempt to become a secret double agent by penetrating a KGB spy ring.

But prosecutors contended that Miller had agreed to pass a confidential intelligence document to Ogorodnikova in exchange for sex, $15,000 in cash, $50,000 in gold and a $675 Burberry trench coat.

The appeals court overturned the conviction because prosecutors were allowed by Kenyon to present evidence that Miller, during five days of rigorous interrogation by his FBI superiors, failed several lie detector tests.

The reversal of his conviction was a significant blow to the government. It constituted the first time a major espionage conviction had been overturned in more than five dozen prosecutions since World War II.

Meanwhile, Ogorodnikova and her husband pleaded guilty to espionage charges and were sentenced to prison.

The U.S. attorney’s office has not said whether it will appeal the reversal of Miller’s conviction to the U.S. Supreme Court.