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Judge Deals Crucial Blow to Defense in Miller Trial

April 15, 1986|WILLIAM OVEREND | Times Staff Writer

A federal judge delivered a stunning blow to the defense in the Richard W. Miller espionage retrial Monday by banning any testimony about a prolonged relationship between convicted Soviet agent Svetlana Ogorodnikova and retired FBI agent John Hunt.

The major victory for government prosecutors came as U.S. District Judge David V. Kenyon ruled that any testimony about the relationship between Hunt and Ogorodnikova in 1982 and 1983 was irrelevant in terms of Miller's subsequent involvement with the Russian emigre.

Sources close to the case said the ruling by Kenyon virtually "gutted" the defense case in Miller's retrial and also set up a possible appeal issue if Miller is later convicted of passing secret FBI documents to the Soviet Union.

Hunt, 54, was an FBI counterintelligence officer who attempted to recruit Ogorodnikova as an FBI informant two years before Miller first met her in May, 1984. She has claimed Hunt was also her lover, but he has denied the allegation.

Hunt was a key witness in Miller's first trial, which ended in a deadlock last November. The government subsequently decided that his three days of testimony refuting the sexual allegations and defense claims that he had been trying to set up a "double agent" operation with Ogorodnikova had "confused" the jury.

The government was slow, however, in deciding exactly what to do with Hunt in the second trial. Early in the trial, Hunt's testimony was suddenly postponed without explanation. Then, last week, the government moved to limit his testimony only to the events of 1984, after Miller's first encounter with Ogorodnikova.

Earlier Impact

In a memo to Kenyon last week, U.S. Atty. Robert C. Bonner and Assistant U.S. Atty. Russell Hayman criticized the impact of Hunt's testimony in Miller's first trial, arguing it was "confusing, misled the jury as to the issues in the case and was wasteful of the court and jury's time."

The switch in prosecution strategy came after Miller's lawyers, Joel Levine and Stanley Greenberg, announced that they planned to call Ogorodnikova as the first witness for the defense. In urging Kenyon to limit testimony about events before 1984, the government also asked that Ogorodnikova be banned from testifying about the previous relationship.

While Greenberg and Levine argued unsuccessfully that the Hunt-Ogorodnikova link was a crucial element in their defense, Kenyon sided with the prosecution's view that it shed little light on the "state of mind" of Miller and Ogorodnikova two years later.

In his ruling, Kenyon summarized in unusual detail his own impressions of Ogorodnikova:

"There is no way the jury could draw the conclusion that she was not working for the Soviet Union. Probably, the truth lies somewhere in this area: Mrs. Ogorodnikova was a third-wave immigrant who was dissatisfied with this country and was working with the Soviet Union to get back to the Soviet Union. There's all kinds of evidence this was true.

"And then she got involved with Mr. Hunt. To say she got involved emotionally is quite accurate. She had a crush on him, fell in love with him, whatever. This created a problem for her, or maybe an opportunity. You can see them riding off into the sunset. I think she had a fantasy of that."

Miller's lawyers claimed it was unfair to ban the testimony because the prosecution had outlined the 1982 relationship during opening statements, detailing some of the meetings between Hunt and Ogorodnikova. Kenyon, however, said that could be corrected later by a special instruction to the jury to disregard the comments.

While Kenyon effectively shut off testimony about Hunt's involvement with Ogorodnikova, he said there remain ways the defense might manage to raise some aspects of the relationship, including impeaching Hunt's testimony.

Lawyers Dismayed

The reaction of Greenberg and Levine, however, was total dismay. In their first response to the judge's motion, they requested a mistrial, which Kenyon denied. Levine then asked Kenyon to strike all previous testimony by a half-dozen prosecution witnesses about Ogorodnikova's pro-Soviet activities before 1984.

Kenyon, angered by the defense motion, first told Levine he should have presented his argument before the judge's ruling. Later, after considering the motion in chambers, he rejected it and lectured the defense team on courtroom courtesy.

"Frankly, the defense dropped it right on the court after the court had made its decision," Kenyon said. "If you thought it up over the weekend, you should have had the courtesy to tell the court. If lawyers want to raise arguments after the court has ruled, I say no. No way. You can't dump things on the court."

Both Levine and Greenberg protested that they had not planned their motion before Monday's ruling by Kenyon. They were prevented from discussing their reaction to the ruling by a gag order.

The status of Ogorodnikova's expected testimony remains unclear. Levine said he intended to summarize for Kenyon what she would testify to later this week.

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