When U.S. District Judge David V. Kenyon was picked last year to preside over the Richard W. Miller spy case, both government and defense lawyers praised him as a fair-minded judge and predicted that he would do his best to give them equal treatment as they prepared for the trial of the first FBI agent ever charged with espionage.
The lawyers have not said much about the judge or anything else in recent months, however, because of the unexpected manner in which the judge lived up to their predictions of equal treatment: Kenyon slapped a gag order on all of them in March banning any public comment about the case.
The gag order, issued by Kenyon at the government's request to halt pretrial publicity after defense lawyers had discussed their case in interviews with The Times, showed a tough side of Kenyon at an early stage in the Miller case. That tough side contrasted with his reputation as an easy-going judge who is unusually patient and good-humored with most lawyers.
Kenyon's stern tone as he warned that the Miller trial "will not become a circus show performed outside the courtroom" was not a departure in judicial philosophy for the conservative judge, however, merely a momentary change of mood from his usual relaxed and jovial courtroom style.
Miller was arrested Oct. 2 on charges of conspiring with accused Soviet spies Svetlana and Nikolai Ogorodnikov to pass FBI secrets to the Soviet Union, and Kenyon was assigned to the case in a random selection process the next day.
In the long months of courtroom melodrama that have surrounded the Miller case, Kenyon, 54, has generally avoided solemn lectures to attorneys, more often engaging in light-hearted banter with jurors and lawyers, frequently joking about himself and the problems he faces presiding over the trial.
During pretrial hearings, Miller took the witness stand to testify about his sexual relationship with Svetlana Ogorodnikova, which began in May, 1984, and continued until the following September. Miller counted on his fingers before testifying that the relationship had lasted four months.
"When was the last time you saw an FBI agent resorting to counting on his fingers to tell the difference between three and four?" one of Miller's lawyers, Stanley Greenberg, later asked Kenyon in an effort to dramatize Miller's general ineptitude as an FBI agent.
"I must admit that the next day I found myself counting on my fingers too," Kenyon responded.
"I'm sorry I mentioned it then, your honor," Greenberg said.
Public scrutiny of Kenyon, a Republican from San Marino who is known for his unusual blend of compassion, folksy style and conservative approach to the law, has been inevitable because of the Miller case. Admirers and critics focused last week not only on his fairness but on his overall performance as a judge.
"He's an intelligent and capable guy," one federal prosecutor said. "I don't think there's a judge in this district as motivated to be fair to both the government and the defense. Far and away his greatest strength is his desire to do the right thing."
"His greatest weakness is his indecisiveness," a defense lawyer and former federal prosecutor countered. "He makes it look like he's being fair, but you can count on him to systematically rule in favor of the government in criminal cases. If you ask me, his greatest strength is his law clerk."
One of Kenyon's first major decisions was to reject a government request to try Miller before the Ogorodnikovs. He agreed to separate trials and ruled that it was most fair to the defense to try the Ogorodnikovs ahead of Miller.
During the two-month trial of the Ogorodnikovs, which ended June 25 when they pleaded guilty to conspiring with Miller, Kenyon nullified that initial defense victory in another major ruling.
Miller's Statements OKd
Over the protests of the lawyers for the Ogorodnikovs, Kenyon ruled that the government could question Miller during the Ogorodnikov trial about pre-arrest admissions he made to the FBI, including reported statements admitting that he had passed FBI documents to Ogorodnikova.
In effect, the judge had given the government what it had hoped for from the beginning, a decision that prosecutors could use Miller's statements in both trials and not have them excluded for a variety of reasons, including hearsay.
Meanwhile, faced with mounting pressures to speed the trial along and resolve an unending stream of legal controversies, Kenyon continued to jokingly apologize for frequent delays in proceedings, at one point calling himself "kind of slow" and another time describing himself as "wishy-washy."
On May 8, early in the trial of the Ogorodnikovs, a juror stayed home with the flu, and the prosecution suggested replacing the sick juror with an alternate. As defense lawyers rose to object, Kenyon begged off the issue by postponing the trial a day.
"Let's not make a federal case out of it," he said.