The Falcon and the Snowman (41 page)

* Count Ten charged Daulton with acting as an agent of a foreign government—the U.S.S.R.—without prior notification to the Secretary of State.

* Count Twelve charged Daulton with receiving stolen government property—the Pyramider documents—valued in excess of $100.

Upon conviction, according to Federal statutes, the charges carried the possibility of death sentences. Five days after their indictment, Chris and Daulton pleaded not guilty on all counts.

The two friends, independently, had already begun to line up their legal defense. Daulton quickly retained Ken Kahn, the moustachioed “hippie lawyer” whose specialty was defending Palos Verdes drug pushers.

Because it was a capital case with a possible death penalty, Federal law required Daulton to have a second lawyer. Donald Re, a thin, thirty-year-old Princeton-educated trial specialist from Los Angeles, was appointed by the court to help with Daulton's defense. Re's patrician, Ivy League courtliness would provide a stark contrast in the courtroom to Kahn's flamboyant style.

Chris retained George Chelius, a lawyer who had never handled a criminal case before. A big man in his late thirties with a prominent black moustache and receding black hair, Chelius worked under Chris's father as a security specialist in the aerospace industry. He had attended law school in his spare time, had passed the bar exam less than a year before Chris's arrest and planned to leave industry soon to go into private law practice. Like most adults who knew Chris, Chelius couldn't comprehend the news of his arrest. When he heard the reports that Sunday afternoon, he immediately called Chris's father at the Boyce home and offered his sympathy and legal help.

The Boyces, besides being distraught, were worried about the cost of a defense. Chelius agreed it would be expensive, possibly costing as much as $100,000. The Boyces were prosperous by upper-middle-class standards, but not nearly in the same economic league as the Lees. Theirs was a large family, and the prospect of such a huge bill for legal fees loomed impossibly large.

Chelius said he would see what he could do. He called a partner of a well-known law firm in Orange County, south of Los Angeles, that he had been thinking of joining after leaving the aerospace industry. Chelius outlined the Boyces' concern over the costs of mounting a defense, and at Chelius' suggestion, the partner agreed to take on the case without a fee; there ought to be plenty of free publicity in a major espionage trial, he said.

About midnight on the day of Chris's arrest, George Chelius arrived at the Los Angeles County Jail, a large, noisy, overcrowded human zoo that was located in central Los Angeles. Chris was apprehensive about accepting Chelius' offer to defend him. “Are you here to represent me or my father?” he demanded to know, suspicious that Chelius had the same politically conservative views as his father. But the two men—the troubled twenty-four-year-old accused spy and the intelligent, sensitive, green lawyer—hit it off, and they talked until eight o'clock the following morning.

Within a month, the Orange County law firm had second thoughts about representing Chris without a fee. Although members of the firm received some newspaper publicity during the first few days after the arrest, they realized that an enormous amount of work would be required to provide a defense for Chris. Backing away from the earlier deal, they told Chelius it would cost $100,000 to defend him. Chelius was stunned. He couldn't tell that to Chris's father. He knew he couldn't afford it. Moreover, as a matter of honor, he decided he couldn't break his word to the Boyce family. The inexperienced lawyer resigned his job in the aerospace industry and said he would defend Chris without a fee.

Like Daulton, Chris was required to have a second attorney, and William Dougherty soon joined his defense team. A transplanted New Englander who had never been fully at home in the sunny, materialistic climate of Orange County where he made his home, Bill Dougherty was a brilliant fifty-three-year-old criminal lawyer who had spent three years in the Justice Department's Organized Crime and Racketeering Strike Force prosecuting Mafioso and garment-industry racketeers. His gray hair was cropped so short that he looked like a slightly overweight Marine drill instructor, and indeed he was an ex–Marine fighter pilot who still carried around occasional hurts from a broken back suffered when the engine of his Corsair had quit at five hundred feet and he had slammed into a stand of trees. When Dougherty was grounded after the crash, he had gone to law school, then taken a job with the Justice Department before moving to California and opening his criminal law practice. He was still a colonel in the Marine Reserves. By the time he became co-counsel for Christopher Boyce, he'd been involved in more than 250 criminal cases and had been on the winning side in more than 85 percent of them. Like Chelius, he agreed to help defend Chris without a fee—largely, he said later, because it seemed likely to be an interesting case.

Meanwhile, the United States Government was lining up its legal talent. Richard A. Stilz and Joel Levine, like most members of the staff of United States Attorneys' offices around the country, were young, relatively inexperienced, bright, highly motivated if not highly paid, and investing a few years in government service to gain experience before going into more remunerative private practice.

Although both were thirty-one years old, they were a contrast physically. Stilz, a graduate of U.C.L.A. and the Loyola University School of Law, was only a few inches taller than Andrew Daulton Lee and shared with him the same kind of nervous intensity. He had a retentive mind which amazed colleagues and a reputation as a merciless cross-examiner. Levine was dark-haired, tall and thin and wore glasses that gave him a slightly owlish look; a former New Yorker who had attended Brooklyn College and the Case Western Reserve University School of Law, he was more the legal scholar of the two. The two lawyers were regarded as the sharpest young criminal prosecutors in the Los Angeles Justice Department office and, between them, had won a string of convictions in heavily publicized major narcotics and fraud cases. Both were assistants in charge of the criminal division of the U.S. Attorney's office in Los Angeles; Stilz had the additional rank of chief of the Criminal Complaint Section of the office. They were prosecutors, but as it turned out, they would also have to become detectives in the case of
The United States of America v. Andrew Daulton Lee and Christopher John Boyce
.

41

As they sat alone in their respective isolation cells at the Los Angeles County Jail in the days following their arrest, Chris and Daulton were both tortured by thoughts of what lay ahead. Their lawyers said that conviction for treason carried the possibility of a death penalty, and at the very least, there was the likelihood of a long prison term. But if the two friends had known about a debate that was boiling in Washington over their fate, they might have begun each day with at least a sliver of hope that the charges against them would be dropped.

Unbeknownst to them or to their lawyers, the United States of America was not at all sure that it was going to prosecute the two spies.

If they were placed on trial, it meant that potentially damaging national secrets might have to be made public; it meant that the Central Intelligence Agency would have to disclose that it was involved in the operation of clandestine espionage satellites—something it had never done publicly. Moreover, there was the risk that intimate details of the space-reconnaissance operations and methods might have to be made public, something the CIA and other elements of the American intelligence community concluded was unacceptable. To get a conviction, the Justice Department would have to produce evidence that a crime—the theft of classified information—had been committed. Virtually every item from the Black Vault that Chris had photographed was Top Secret, and samples would have to be offered as evidence.

As CIA and FBI agents went over the materials, including copies of the TWX traffic to which Chris had had access, it soon became evident to senior officials in the National Security Council that the loss was among the worst in the history of the CIA; never before had the KGB penetrated actual American surveillance-satellite operations. This review of the information that Chris had handled reaffirmed the initial decision that none of the data could be exposed at a trial. Moreover, some CIA administrators, already worried about the precarious political status of the bases at Alice Springs and other American facilities in Australia, warned that a Boyce-Lee public trial could present a political minefield.

Nevertheless, the Justice Department said it believed there might be a way to deal with the dilemma: the prosecution would tailor its case very narrowly to avoid revealing the most sensitive information, although inevitably some classified information would have to be used. The Justice Department asked the CIA to determine if any of the data stolen from the vault could be used as evidence without serious harm to the country. There was a chance, the government lawyers said, that a cooperative judge would be assigned to the case and would seal the evidence from public scrutiny. However, they said the defendants' attorneys might have to be apprised of all information, and this meant the possibility of a leak, either accidental or otherwise.

Zbigniew Brzezinski, President Carter's national security adviser, had been told of the potential magnitude of the security breach shortly after the Mexican secret police had given American representatives in Mexico City copies of the photographs carried by Daulton. Brzezinski informed the President of the loss and warned of the possibility that the Soviet Union had compromised at least one major satellite system that was used to monitor Russian military activities and which, as a verification tool, was an important element in upcoming Strategic Arms Limitation Talks. Implicit in the warning was the possibility that once the Soviet Union learned intimate details of the satellite systems it might be able to develop countermeasures that could blunt their effectiveness in verifying Soviet compliance with an arms-control agreement.

In spite of the deep concern over the risk of disclosing intelligence secrets at a trial, officials in the National Security Council, the agency headed by Brzezinski, agreed with the Justice Department on one thing: it was unacceptable to let the two spies go unpunished; and thus a
provisional
decision was made to prosecute Christopher Boyce and Andrew Daulton Lee. Justice Department specialists had developed a strategy: they would attempt to present a strong case against the youths utilizing only portions of the Pyramider documents as examples of the thousands of documents they had stolen.

Some CIA officials initially resisted, but finally agreed that they could live with disclosure of some of the Pyramider documents. The National Security Council staff agreed that if there was
any
chance that secret details of Rhyolite, Argus or other satellite projects were to be made public, or other details about CIA or NSA covert operations would surface, the decision to prosecute would be withdrawn.

Once the decision had been made to prosecute the two youths on the relatively narrow grounds of stealing the Pyramider papers, it fell on the shoulders of Levine and Stilz to prove they had done it. And this turned out to be less simple than it might have seemed to those who had heard damning broadcasts about their arrest on January 16.

Stilz and Levine were convinced that Chris's statement after his arrest gave them a solid case against him. Dougherty and Chelius were sure to try to have the statement ruled inadmissible on the ground that it had not been made voluntarily; his initial refusal to sign a
Miranda
waiver was a soft spot for the prosecution, and the defense was likely to contend that Chris had been too exhausted to make a rational judgment when he later consented to do so. But the prosecutors felt confident that they could defend the confession as proper. There was a related problem with the confession: it had been classified Top Secret by the FBI, and the prosecutors would have to find a method to bring out some of its contents that were damaging to Boyce at trial while keeping out the sensitive specifics regarding Rhyolite and Argus. Nevertheless, the young prosecutors felt reasonably secure in their case against Chris. They were less confident about the case against Daulton. He had been arrested in a foreign country without being afforded the constitutional safeguards that American courts require. And the statement he had given to the two FBI agents in Mexico City would probably not be an effective prosecutorial tool; not only was it too classified Top Secret: it contained exculpatory statements by Lee—his claims that he was acting as an agent for the CIA.

The prosecutors had to link Lee unequivocally to the Pyramider microfilm to get a conviction. And this didn't look easy. True, the film had been in his possession when he was arrested in Mexico City. But reality and admissible proof were not the same. The original arrest had been made by Mexican authorities who might—or might not—have handled the evidence in such a way that it could be proved conclusively that the photos found on him were those of the Pyramider papers; there had to be no doubt that the Mexican police hadn't planted the photos on him, or that the pictures hadn't been switched. Moreover, they had to prove that Daulton had had access to some of America's most sensitive defense secrets in the first place and that, after getting possession of them, he had photographed them and taken them to Mexico with the intention of selling them to the Russians. Because of these problems, another strategic step in the prosecution emerged: Stilz and Levine would use the well-worn prosecutor's stratagem of getting one conspirator to turn on another with the promise of a concession in his sentence. Getting Boyce to testify against Lee became the foundation of their case against Lee. They didn't have any doubt Boyce would testify; the case against him was so strong, it seemed certain he would go for a deal—a guilty plea with a recommendation for a shorter sentence than was likely if the case went to trial.