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Burden of Proof

Federal Investigators Reportedly Reach Deal with Attorneys for Wen Ho Lee

Aired September 13, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: A deal has reportedly been reached in the case of Los Alamos scientist Wen Ho Lee.

Will he be released from solitary confinement today?

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Federal investigators have reportedly reached a deal with attorneys for Wen Ho Lee. It is believed he will enter a plea momentarily. The language is being hashed out inside an Albuquerque, New Mexico, courthouse.

And joining me in here in Atlanta is criminal defense attorney Tom Bever; in Boston we're joined by trial attorney Daniel Small, and in Washington, former Justice Department official Jeffrey Harris; also joining us from Washington is CNN justice correspondent Pierre Thomas.

Pierre, tell me what's going on in Albuquerque, and what is the latest?

PIERRE THOMAS, CNN CORRESPONDENT: Roger, according to our people out in New Mexico, the court -- the judge, a few moments ago said that a deal had been reached on Tuesday; that a mediator had worked out a deal and they're working out the final details.

Within a couple hours, Wen Ho Lee could be a free man.

COSSACK: Pierre, what do we know about the details of the plea agreement, if anything?

THOMAS: Again, we're told that the details are not extraordinarily different from what we reported earlier this week; that Wen Ho Lee will plead guilty to one count of mishandling classified information, that he will give the government information -- provide information about why, in fact, he downloaded these tapes, what happened to some missing tapes; and he will be subject to lie detector tests to make sure that he's telling the truth. A number of people I've talked to over the last couple days said it became more important for the government to find out what happened to this information, than the length of Wen Ho Lee's jail time if, in fact, he did not give the information to anyone.

COSSACK: All right, joining me now from Albuquerque, New Mexico, by telephone is Tony Clark.

Tony, what's going on in the hearing in the courthouse now?

TONY CLARK, CNN NATIONAL CORRESPONDENT: Well, the hearing has recessed for about a half an hour, but everything appears to be all finalized.

Judge James Parker came into the courtroom just a few minutes ago. He said that there is a final plea agreement that is acceptable to both sides. The only hangup now, is attorneys for Wen Ho Lee wanted to go over it with him. He has not, at his point, signed it, so they will discuss the plea agreement with him, he will sign it, and then at 1:00 Eastern time we expect court to resume and for him to plead guilty and for him, a little bit later this afternoon, to walk out of this courthouse a free man.

And I'll tell you, Roger, in the courtroom, you know, there is this sense of victory on the part -- the side of the courtroom where Wen Ho Lee's family and supporters are. He has been sitting in the courtroom just grinning very broadly, while the prosecution table is very solemn today.

COSSACK: Tony, do we know what the hangup was, and why the plea agreement was put over from Monday until today?

CLARK: There's just been speculation about some of the requirements for Wen Ho Lee, in terms of his cooperation, what the government could ask him.

The parties, both sides, have been working through a mediator, Judge Edward Levy, who was suggested to the parties by this case judge, Parker, back in June; and so he's been working very diligently with them, and so they -- that's how they were able to hammer out these final words yesterday.

COSSACK: All right. Joining me now from Washington is Jeff Harris.

Jeff, how unusual is it to have a mediator, someone that the judge appoints, to come in and assists both sides in working out a plea agreement? I've never quite seen anything like that.

JEFFREY HARRIS, FORMER DEPUTY ASSOCIATE: Well, I haven't seen this on the criminal side, but it, actually, is becoming more common in civil cases, where the trial judge will send the parties to another judge in the courthouse to try and reach a settlement.

It's unusual -- it's very unusual in the criminal context, but it's getting more and more popular in the civil context, Roger. COSSACK: All right, well, Jeff, I, too, have seen it in a civil context, but my understanding is that the court is not supposed to even be involved in negotiations between parties in a criminal context.

HARRIS: Well, that's right; and that's why the trial judge sent it to another judge, who acts as mediator and should have no communication with the trial judge about what goes on in the mediation.

Here, I suspect the reason they did it is because there's such a lack of trust between the parties that they need an honest broker to make the deal a reality.

COSSACK: Tom Bever joins me in Atlanta. Tom, you were a former assistant U.S. attorney. The notion of a mediator coming in and, sort of, in some ways, dictating to you what you should give and take in terms of a case, that's something that's highly unusual and, perhaps, something that I've never seen, and I don't know if it's welcome in a criminal case.

TOM BEVER, CRIMINAL DEFENSE ATTORNEY: I've never seen it occur before in a criminal case, particularly in a federal criminal case.

I can't think of a good reason why it shouldn't be used, perhaps, if there is that level of distrust. Personalities come into play, and sometimes if you have someone giving an objective viewpoint, that's where, just like in a civil case, it might be helpful.

If you're on the government or defense side, though, you'd be very cautious what kind of information you'd give to the mediator that would get passed on to the other side.

COSSACK: See that's my...

THOMAS: Roger...

COSSACK: ... yes? I'm sorry.

THOMAS: ... this is Pierre coming in.

COSSACK: Go ahead, Pierre.

THOMAS: One of the things that I should point out is that one of the reasons why the mediator might have been brought in is, a number of sources were telling me about the notion of the national security implications of the case, that, you know, discussions about nuclear weapons code, that kind of information, that Judge Parker, apparently, became convinced that it became very important for the government to figure out what happened to these missing tapes.

COSSACK: You know, the interesting question, I think, to me -- and Dan Small, I'd like your opinion on that, is when you're talking to a mediator and you're representing, say, the defendant in this case, how do you go about having the mediator dictate to you what's your best interest -- or what's your client's best interest when the mediator would really have no way of knowing?

DANIEL SMALL, TRIAL ATTORNEY: Well, you're right. And all a mediator can really do here is be an avenue of communication between the parties. And I think part of it was distrust and part of it, I think, was a message from the judge to the government saying, work this out, get rid of this embarrassment; and that's what happened.

COSSACK: Tom, the notion of solitary confinement that Wen Ho Lee has been in, that is something that we very rarely see, particularly before anybody has ever been convicted.

Your opinions on that kind of activity by the government?

BEVER: Well, again, I've never seen that occur before in a federal case. It would be an extraordinary circumstance to take place.

But, maybe this is, indeed, an extraordinary case, when you're dealing with secrets having to do with nuclear armaments. I would be concerned, on the defense side, though, what kind of effect that would have on my client, being in solitary confinement.

COSSACK: All right. Let's interrupt our show for a moment and go to Jeanne Meserve with a developing story -- Jeanne.

(INTERRUPTED BY COVERAGE OF A LIVE EVENT)

(COMMERCIAL BREAK)

COSSACK: Federal investigators have reportedly reached a deal with attorneys for Wen Ho Lee. It is believed he will enter a plea momentarily.

Pierre, you earlier reported that the government was satisfied with how this case has worked out, that they would much rather find out the information and trade that for jail time for Wen Ho Lee. That's a little difficult for me to believe in light of the fact that they indicted him on 59 counts, put him in solitary confinement for nine months and fought like the dickens on this plea bargain and really weren't ready to give up -- the government wasn't ready to give up until they had problems with an FBI agent last week who -- or a couple weeks ago -- who said that perhaps he misled the court in his testimony. Don't you think this is a little disingenuous on behalf of the government?

THOMAS: Well, I don't know that I would use the word satisfied. But what they are saying is that, look, they needed to find out why he downloaded the tapes.

Now, the other interesting thing that we should point out is that they never charged him with giving the secrets to anyone. And a number of legal experts that we talked to said that was a major problem with the government's case, in that you were trying to put the man in jail for life for mishandling classified information, yet you had no evidence that he gave it to anyone. But from the government's standpoint is why were the tapes downloaded and what was done with them? And one source told me this morning that the national security types, the CIA types, you know, having that unknown on something about nuclear weapons is something that they found untenable.

COSSACK: Dan Small, highly unusual resolution. You know, usually the government says, look, you don't want to work out this deal on the terms that I want to work it out on, lets go to trial. Apparently the government doesn't want to go to trial in this case.

SMALL: They don't want to go to trial because it's an embarrassment. This was a terrible mistake by the government. It's the laws of bureaucratic physics: the case spiraled up out of control and then came crashing down. There was no case. And they're spinning at as, well, we wanted to know what happened and all this kind of nonsense. It's just that. It's nonsense.

COSSACK: Jeffrey, unusual events. I mean, look, this -- I don't think you can classify this as -- or qualify this as any other thing than a defeat for the government.

HARRIS: Absolutely. The best day the government had in this case was the day they filed the indictment. It's gone downhill from that day to this day. And my guess is that the U.S. attorney got rolled by the FBI. And when they -- after the indictment when they started to put the case together, my guess is that the FBI couldn't produce for the U.S. attorney the kind of evidence that they intimated they would be able to.

COSSACK: Tom, you've been on the side of a -- as a defense lawyer as well as a prosecutor -- negotiations with the other side. This is a very, very -- these are negotiations that are very, very touchy and fraught with danger, you know, highly secret material. How do you go about negotiating cases like this, perhaps on the government side?

BEVER: Well, from the government side, you've got a big hammer if you're looking at life imprisonment. And you've got a guy who's already in solitary confinement who's feeling it, so you've got a big stick there to start with. And oftentimes under the federal sentencing guidelines, all you have to do is get one count and he could go away for life depending upon the statues. So you've got a big club.

From the defense side, in this case, if you've got an FBI agent whom you can impeach, that's a big step in the right direction to help you in your case. The other thing is, if they don't have evidence in terms of who set the man up to do this, if anybody, or whom he was going to give the tapes to, if anybody, then that's also a big stick in terms of the proffer from the defense side because you have something you know the government wants and you're not going to give it up unless you cut the deal that's satisfactory to your client.

COSSACK: Dan, what does it tell us that the government is -- was ready, and apparently is ready, along with the defense to enter into an agreement in which there is a sentence that is already agreed upon, and the fact that the judge will do it? You know, I remember federal court, you couldn't talk to those judges into telling you what they were going to give your client ahead of time no matter what you did.

SMALL: It means everyone agrees this was an embarrassment. They had an enormous hammer over him, not -- I disagree that it was a hammer of future jail time. The hammer was he was in jail, in solitary confinement. And as recently as a week ago, the government went in saying, he's so dangerous, we've got to keep him in. And now, a week later, it turns out all he did was put the wrong file on the wrong computer.

COSSACK: Well, Dan, we don't know if that's all he did. I mean, it's yet to be disclosed exactly what happened here.

Now, of course there is an argument.

Jeffrey Harris, I know the defense is making the argument that no matter what he downloaded, it really wasn't that serious, that, you know, you can pick it up other places. You know, is that yet to be proved or disproved?

HARRIS: Well, that's yet to be proved. And I suspect that what the danger from here on out is is that I'm sure the government's going to insist on a lie detector test. What if the examiner says that he doesn't believe that Lee is telling the truth? What happens then? This debriefing -- and my guess is it's much like a CIA debriefing. There'll be those in the bureau who believe he's truthful, there'll be those who believe that he's not been candid in telling everything, and how is that going to affect the plea agreement? I think that's why this judge is so involved, because he doesn't want to see this case back before him again in a few months.

COSSACK: All right, let's take a break.

Up next, more dramatic development in the Justice Department's case against former Los Alamos scientist Wen Ho Lee. Stay with us.

(BEGIN Q&A)

Q: How many people died at New York's Attica prison by the time a revolt ended on this day in 1971?

A: 42

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Federal investigators have reportedly reached a deal with attorneys for Wen Ho Lee. It is believed he will enter a plea momentarily.

Pierre, you know, we've talked about the fact that he's charged with, in a sense, unlawfully downloading secret material, but not charged with espionage. Is this an unusual charge? As far as I know, I've never quite heard of something like this before.

THOMAS: Well, Wen Ho Lee's attorneys have made the case that this was the first time that the government had ever prosecuted someone for mishandling classified information. And, through a series of motions this summer, the defense has been dissecting the government's case.

They raised that. They also showed the discrepancies in the FBI agent's testimony and they brought in a noted nuclear scientist who said -- raised questions about just how sensitive this information actually was,

So, the defense has very much been on the aggressive side throughout the summer months, quietly attacking the government's case.

COSSACK: Dan, apparently one of the -- we've, at least, heard it reported that one of the conditions of this plea agreement will be that Wen Ho Lee would drop his civil case against the government. A case that, among other things, claimed that he was singled out for racial profiling, and that is why the government came after him.

You know, it seems to me, that that is something that should stand on its own. I wonder why, in fact, the government would require him to drop that case.

SMALL: Well, it should stand on its own, and what we had heard a couple of days ago was that it would be a separate issue. It may be that that was one of the things that caused this delay of a couple of days, and I think the government ought to be concerned about that case because I think there are a number of reasons why this spiraled out of control. Whether race was one of them or not is certainly an open question.

COSSACK: Tom, let's talk about what this plea agreement is going to include. One of the things, of course, is that they are going to -- the government will be able to debrief Wen Ho Lee and find out what his motives are and what he did.

But, let's suppose that the government doesn't believe Wen Ho Lee is telling the truth. I mean, someone has to decide what the truth is and what the truth isn't.

What happens? and how does Wen Ho Lee try to go about protecting against that?

BEVER: Well, you have a -- you have a problem that the negotiated plea agreement is essentially a contract. And it's a question whether the contract has been breached. So, if the government doesn't believe what he has to say, they are going to have to prove it to the judge and essentially ask for the plea agreement to be set aside and go forward with the trial. But, apparently, at this point, they don't want to go forward with.

They are going to have to show the judge something, either by other, contrary evidence, or by the results of a polygraph examination, which he's agreed to take. But, it is hard to do. Simply them saying that they don't believe the fellow isn't going to be enough.

COSSACK: Jeff, in terms of -- of what the government, who clearly doesn't want to end up with any more egg on their face over this case, now they go out and they make a deal with Wen Ho Lee, and they say: OK, you will tell us the truth. They must be convinced by some kind of proffer he will be telling the truth.

But, what happens if they don't? Can they bring some of these charges back again?

HARRIS: Well, what would happen is they'd claim it is a breach of the -- of the plea agreement and it depends whether the plea agreement dismisses the other charges, just holds them in abeyance. You would have to know the particulars of the agreement to know what the government's rights are going to be if they claim a breach.

That's a big issue that I'm sure the defense attorneys have been mightily concerned with. Because, the last thing they want, is to find themselves back right in the middle of this problem.

COSSACK: But, in one sense, Jeff, I mean, hasn't the hand kind of been tipped here in this case. You know, when the government goes from 59 counts to one count and says: You know, guess what? We are willing to trade jail time for information.

I mean, isn't the government really saying: You know what? We don't want any more of this case. Maybe it didn't work out the way we wanted it. Maybe it didn't work out the way we thought it was going to work out, but we just want this behind us.

HARRIS: I think that's exactly right, Roger. And, I'll tell you one place that I'm sure that they are shaking their heads, is at the CIA in Langley.

This -- this case, the way the FBI handled it, proves everything they suspect about the FBI's ability to handle intelligence matters in terms of getting the information that the subject has.

COSSACK: Dan, will there be investigations over the handling of this case?

SMALL: Well, I think there will be, but part of the problem, really, is that you cannot investigate tough cases in the media or in the halls of Congress and that's what happened here.

There were enough leaks and enough problems that came out that it created a feeding frenzy of expectations, and the government unfortunately gave into that feeding frenzy and overstated its case from the beginning.

COSSACK: All right, Dan, thank you, because that's all of the time we have today. Thanks to our guests and thank you for watching. Join me today on "TALKBACK LIVE." Well, let me say, the relationship is over. What happens with the kids, the house and Fido the dog? Weigh in on canine custody and pet law, today at 3:00 p.m. Eastern time.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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