Lawyers for Alleged Spy Accuse Prosecution of Misconduct

Attorneys for accused Chinese double agent Katrina Leung have asked a federal judge to throw out the indictment against her on grounds of prosecutorial misconduct, it was disclosed Thursday.

A motion filed in U.S. District Court accused federal prosecutors of illegally and unethically exacting a commitment from Leung’s former FBI handler and lover, James J. Smith, that effectively bars him from speaking to the defense about the case.

The pledge was contained in a plea agreement the retired agent reached with the government earlier this year, allowing him to plead guilty to a reduced charge of failing to report his 20-year sexual relationship with Leung, a businesswoman from San Marino.

During that time, Leung was a paid FBI informant assigned to spy on high-level Chinese officials. But authorities charged she also fed information about the FBI to China, which Smith, an FBI supervisor in Los Angeles, allegedly covered up.

The U.S. attorney’s office had no immediate comment on the defense motion, but a spokesman said a response probably would be filed next week with U.S. District Judge Florence-Marie Cooper, who is presiding over the case. The defense has asked for a court hearing Dec. 9.

In a declaration filed with the motion, defense co-counsel Janet I. Levine said that Smith was a critical witness to every allegation the government has made against her client. Leung is charged with illegally possessing three confidential FBI documents.

Noting that Smith recruited Leung and supervised her for two decades, the defense lawyer argued that he alone could provide exculpatory evidence to help prove Leung’s innocence.

The defense argued that forbidding a witness from speaking to a defendant violates the defendant’s right to a fair trial.

Smith could refuse to speak to Leung’s defense team, according to the motion, but the prosecution may not offer him a plea deal conditioned on his promise not to speak to the defense.

The motion quoted from the American Bar Assn.’s canon of ethics, which states that “a prosecutor should not discourage or obstruct communication between a prospective witness and defense counsel.”

In calling for dismissal of charges against Leung, the defense said “it is difficult to imagine conduct more egregious than openly and blatantly prohibiting ... the most critical percipient witness from being interviewed by the defense.”