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Court Overturns Miller Conviction

April 25, 1989

SAN FRANCISCO (AP) _ The espionage conviction of Richard Miller, the only FBI agent ever convicted of spying, was overturned by a federal appeals court today because of the use of lie-detector evidence at his trial.

The 9th U.S. Circuit Court of Appeals ruled that the jury should not have been told the results of Miller’s polygraph examinations, which concluded that he was lying about his motives.

The polygraph evidence bolstered the credibility of Miller’s later admissions of wrongdoing, ″the heart of the prosecution’s case,″ the court said in a 3-0 ruling.

The decision entitles Miller to a new trial on charges that he spied for the Soviet Union.

Miller was convicted in June 1986 of passing secrets to the Soviets through his lover, Svetlana Ogorodnikova, in return for promises of $65,000 in cash and gold. He was sentenced to two life terms plus 50 years in prison.

She and her husband, Nikolay Ogorodnikov, pleaded guilty to conspiracy to commit espionage and are serving prison terms.

U.S. Attorney Robert Bonner was informed of the ruling while attending a speech by President Bush on a ranch in Riverside County.

″Oh really?″ Bonner said. ″We’ll obviously want to take a look at the 9th Circuit opinion. We may re-appeal and we have other means. If those fail, we will retry the case. We’ll deal with it when we see the decision,″ Bonner said.

Joel Levine, a Los Angeles lawyer who represented Miller, reacted by noting the time Miller has spent behind bars since his arrest: ″We’re very, very pleased, but we would be more pleased if we didn’t have to go through five years waiting for a fair trial with a client in custody.″

Miller, a 20-year FBI veteran, was portrayed by prosecutors as a bitter, vengeful failure easily recruited as a spy. The defense described him as a well-meaning FBI misfit who dreamed of redeeming his career by infiltrating the Soviet spy network in the United States.

He was charged with furnishing a clasified document called the Positive Intelligence Reporting Guide, which sets forth annual U.S. intelligence needs, to his lover for delivery to the Soviet consulate in San Francisco in August 1984.

In reversing his conviction, the appeals court ruled there were several errors by U.S. District Judge David Kenyon, who presided over the trial in Los Angeles.

One was Kenyon’s decision to admit evidence of lie-detector tests that the FBI gave Miller during the investigation of the case.

Miller insisted during the questioning that his actions were intended to benefit the FBI. But the polygraph examiner told him he had failed the tests. Shortly afterward, Miller said for the first time that he had given a classified document to Mrs. Ogorodnikova; at trial, he contended his admission was false.

Over defense objections, Kenyon allowed evidence of the results as well as the questions and answers of Miller’s lie-detector test, saying those tests had set the scene for his disputed admission about the document.

The appeals court, in an opinion by Judge Dorothy Nelson, noted that lie- detector results are generally prohibited as evidence of the truthfulness of the person being questioned, because of doubts about the reliability of the device.

Lie-detector evidence can be admitted for other purposes in limited circumstances, Nelson said. In several cases a jury has been told that a defendant confessed after being told he failed a polygraph. But she said Miller’s jury was told much more damaging information.

Nelson also said Kenyon improperly admitted evidence that Miller had once bribed an FBI informant. In addition, she said testimony by a man presented by the government as an expert on Soviet intelligence and recruiting tactics was improperly used to attack Miller’s character.

Judges Stephen Reinhardt and Diarmuid O’Scannlain joined the opinion.

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