THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
CHIEF CHARLES RAMSEY, D.C. METROPOLITAN POLICE: I'm very confident that, with a thorough search, if there was evidence there, we would recover evidence. But then again, there's always that possibility, which is a good possibility, that there'll be nothing that connects the disappearance of Chandra Levy to that apartment.
(END VIDEO CLIP)
ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Police have searched the Washington apartment of Congressman Gary Condit. Still on the docket: negotiations over a lie detector test and a DNA test. All this as a flight attendant plans to meet with federal prosecutors.
ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.
COSSACK: Hello and welcome to BURDEN OF PROOF.
Late last night, investigators spent more than three hours searching the Washington apartment of Congressman Gary Condit. Condit had agreed to the search. Washington police described it as routine.
GRETA VAN SUSTEREN, CO-HOST: Police also say they have interviewed dozens and dozens of other people and have no evidence of any crime in the disappearance of Chandra Levy.
Meanwhile, flight attendant Anne Marie Smith, who says Condit asked her to withhold information from the FBI, is scheduled to meet with prosecutors in the U.S. Attorney's Office.
COSSACK: And joining us from New York is criminal law professor David Yellen.
VAN SUSTEREN: Here in our studio, former D.C. police sergeant John Hickey, former Washington detective Howard Miller, who's also a polygraph examiner and David Schertler, former chief of the homicide section at the U.S. Attorney's Office. And in California, we're joined by Matt Szabo, who's a friend of Chandra Levy.
Matt, let me go first to you.
COSSACK: I think that we're having problems with Matt after all, Greta.
VAN SUSTEREN: Then we won't go first to Matt.
Let me go to you, David. The search last night of the apartment of the congressman is -- does the U.S. Attorney's Office have a role in that search or is that simply the police?
DAVID SCHERTLER, FORMER FEDERAL PROSECUTOR: No, I think that was simply the police. I think that the police were taking up Congressman Condit's attorney, Abbe Lowell, on his offer to do anything that would be helpful, including letting the police come into the apartment and search it. So I think that was an agreement between Abbe Lowell and Congressman Condit and the police department.
COSSACK: John, as former member of the Metropolitan Police Department here in Washington, D.C., let's talk about how you conduct a search of this type of apartment and particularly the issues that may arise of being so long after the event.
JOHN HICKEY, FORMER D.C. POLICE SERGEANT: Well, you call, again, a professional team of individuals who work in a mobile crime unit. And technology today is so sophisticated that, you know, trying to clean up evidence and get rid of it, it just doesn't work.
That technology is advanced to the point where you're going to bring in laser lights and chemicals and be able to search and find fingerprints, fluid evidence or any other evidence that you might be looking for -- hair fibers.
VAN SUSTEREN: I guess, John, I think sort of like big deal. I mean there's now -- I mean the cat's out of the bag. The congressman has admitted to having an affair. Presumably, she has been in his apartment on occasion. There's going to be evidence or maybe trace evidence of her presence, microscopic evidence. So, what is it that the police could possibly look for that would suggest anything that would lead to her discovery or even the possibility of a crime?
HICKEY: Evidence of a fight, evidence of blood, a situation like that. Any broken furniture is very minute.
VAN SUSTEREN: That -- I would assume someone would get rid of broken furniture.
HICKEY: Yes, and you know, you don't know what people would get rid of and what they won't. I mean in a situation like this, you have to keep your mind open and go for everything. You have to detail every wall, every inch of the apartment and it may be something that comes back later on. It may not be something that you find right away.
COSSACK: You know, Greta, I'm not so sure -- I think you raise a good point of course, but I'm not sure the question is what they hope to find. I think it's more if you don't do it, you know.
VAN SUSTEREN: Right, I think...
COSSACK: If you don't go in there.
VAN SUSTEREN: I think if police look the other way, they're going to take -- I mean I think they have to.
VAN SUSTEREN: They absolutely -- but they still have to have at least some sort of mission in mind, at least I would assume, to look for. But I think probably the most telling thing is -- and again, this is all -- you know, we simply have no facts about this, but the possibility of blood. Can you can get rid -- in this day and age, John, can you get rid of blood evidence?
VAN SUSTEREN: Not at all?
HICKEY: Not at all. I mean you can tear up -- you can tear out walls and you can tear out the carpeting and get rid of that. But if it's physically still there, it's going to come back and they're going to treat it with chemicals and they're going to go in with lasers and they're going to find trace of it.
VAN SUSTEREN: But of course, didn't they -- don't they have to have hers as well?
HICKEY: Well, they may have her blood type or something like that already from her medical records or something like that.
VAN SUSTEREN: Or they'll get DNA samples from her apartment. They'll get hair fibers from a hairbrush or something like that.
COSSACK: Well, I've been informed that Matt Szabo is now ready to join us from Los Angeles. Let's take a shot at it and see if he's with us.
Matt, thank you for joining us. You knew Chandra Levy. In fact, you were a classmate of hers at USC. Tell us about her. What kind of person was she or is she?
MATT SZABO, FRIEND OF CHANDRA LEVY: Well, she -- I mean she's one of the friendliest persons -- people that you'd ever want to meet. She had -- I mean the first thing you could say -- I mean she was clearly very smart. And it -- you know, conversations with her were always very interesting because she was -- you know, she was very witty. She had a very interesting outlook on things. And she was very funny. She had kind of a sarcastic wit that was pretty unique.
VAN SUSTEREN: Matt, when was the last time you had any communication, e-mail or conversation with Chandra Levy?
SZABO: The last time I saw her was in December, when we had her final class. And then we probably e-mailed maybe a couple of months after that. VAN SUSTEREN: Anything unusual -- talk about boyfriends or people at work or anyone she might -- she worked for the Bureau of Prisons as an intern. Any sort of prisoners she might have been corresponding with, anything at all?
SZABO: No, really nothing at all. I mean I really have no idea. She never mentioned anything. And -- but I mean that's not really a surprise. She is more of a private person and wouldn't really be discussing relationships the first thing, you know, off the bat. But I -- no, I have no idea.
VAN SUSTEREN: How about a cavalier in her lifestyle? Did she stay out late and party and you know, close bars and do anything like that that might suggest that she might have been out late and got nabbed on the street?
SZABO: I don't think so. I mean when she was here in L.A., she took all the precautions to not be out late. I mean -- you know, the gym she worked out was in her apartment, specifically so she wouldn't be -- wouldn't need to be out late by herself. And she wasn't a big partyer or clubber. I mean, she didn't even have a TV in her room. She liked to read. She wanted to deal with her studies first.
I mean, she would go out with friends to a bar or something like that, but nothing out of the ordinary, really.
COSSACK: Matt -- and answer -- I don't know if you can answer this, but describe the kind of person Chandra was in this sense. Was she a dreamer? Was she upbeat? Was she a realist? Was she lonely? Are any of those words appropriate?
SZABO: Well, yes, she was upbeat. I mean, she was certainly ambitious. She was a bit of an idealist, I guess you could say. I mean, she knew what she wanted to do and she had a pretty good idea of how to get there.
I wouldn't describe her as lonely. Did you say lonely? I wouldn't describe her as lonely or a dreamer so to speak. I mean, I think that she pretty much had her feet on the ground.
COSSACK: Well, you said that she knew what she wanted to do and pretty much knew how to get there. What is it that she wanted to do?
SZABO: Well, career-wise, it was clearly law enforcement. I mean, from early day one of the first class that we had at USC, she was focused on law enforcement. I mean, the only thing she had to decide, at that point, was at what level -- if she wanted to be at the federal level or at the state level or even at the local level. But the FBI was something that she had talked about really from right off the bat.
VAN SUSTEREN: Dave Schertler, you know, you were head of the homicide division here for a long time at the U.S. attorney's Office. Is there anything that you're curious about that you would ask Matt or even of Chandra Levy's friends if you were sort of directing this investigation? SCHERTLER: Well, you'd want to talk to Matt and friends and relatives of Chandra Levy's. The most important thing -- the most important focus of the investigation has to be what her state-of-mind was in the hours or the days right before she disappeared. And you know, Matt may not have spoken to her that recently.
You want to know whether there was something that was upsetting her, that bothered her, something that might be more consistent with her either running off because she was troubled by something or the possibility of suicide. And that's where you'd want to talk to the people who knew her well.
COSSACK: Matt, have you been spoken to by the police here from Washington at all?
SZABO: Well, I was interviewed by the FBI not the local police but the FBI.
VAN SUSTEREN: What did they ask you?
COSSACK: Go ahead.
SZABO: Well, I mean they asked me all sorts of things. I don't know -- I mean, you know, they asked about every possible scenario that they could possibly come up with. I mean it was a lengthy interview.
COSSACK: Do you know about any of her friends that she might have had here in Washington, Matt? Did she tell you about any friends she made?
SZABO: You know, really no. And that's the -- kind of the problem with that particular program, is that she was in a different place every four months and none of the people that were in each location really knew each other. So outside of the people that -- you know, that she worked with and her classmates in Washington, I really have -- I don't know who she kept close contact with.
VAN SUSTEREN: All right, well, we're going to take a quick break. And when we come back, we're going to talk about the polygraph examination that is requested by the police as well as talk to defense attorneys to see what the role of the defense attorney should be. Stay with us.
(BEGIN LEGAL BRIEF)
Richard Rosner, a former contestant of "Who Wants to be a Millionaire", is suing the show's producers and ABC over an alleged faulty $16,000 question. Rosner's lawsuit seeks permission to return to the game show for another chance or $1 million in damages.
(END LEGAL BRIEF)
(COMMERCIAL BREAK) VAN SUSTEREN: Yesterday, D.C. police asked Congressman Gary Condit to take a lie detector test and submit DNA samples as part of their search for missing intern, Chandra Levy.
Let me go to you, Howard, on the issue of the polygraph, a big question always is, and I ask each person who comes in here and administers, what is the level of reliability?
HOWARD MILLER, FORMER D.C. POLICE DETECTIVE: Well, it -- unfortunately, that's the -- it's a difficult question to answer. I always treat it as an investigative tool. I don't want to say that it works with certainty.
VAN SUSTEREN: That's not -- it's not the truth machine.
MILLER: I don't think so. I think it's a philosophy about what is truth.
And the important thing is, here in this type of case, that we're looking at, is what are the emotional responses to basic questions. Questions about, you know, do you know where this person is now. What -- when was the actual last time -- verify the actual last time that you had contact with this person. These are kinds of questions that a polygraph handles really well.
COSSACK: Howard, why -- there seems to have been a major shift in the philosophy of...
VAN SUSTEREN: ... David Yellen?
COSSACK: David, I'm sorry. David, the major shift in the philosophy of Congressman Condit now, since Abbe Lowell has taken over, to be certainly more open and more forthcoming. What about the notion that he may -- or that he has volunteered to take a lie detector test -- good idea?
DAVID YELLEN, CRIMINAL LAW PROFESSOR: Well, from a strictly legal standpoint, it's probably not a good idea. And if this were an ordinary case, I don't think Abbe Lowell would allow his client to do that.
But of course, Congressman Condit is waging a two-front battle. One is dealing with the legal implications of what he may have done and also, he has a large political component. So, that really explains why he has agreed to do it.
VAN SUSTEREN: David, I have to tell you, I've known Abbe Lowell for an awful long time, having been in this city for a long time, and it seems to me -- I mean he didn't exactly offer a polygraph. He said he would he consult with his client. That was the -- sort of the first tip. When I heard his news conference that -- I wondered whether or not he was really going to do this.
Secondly, is the sort of -- I don't know a lawyer who offers a polygraph test who doesn't do a dry run secretly. What's your view on that? Do you think that before there'll be any sort of police polygraph there'll be a private one?
YELLEN: Oh, sure, Abbe Lowell is much too smart to let Congressman Condit do a lie detector test for the first time under the scrutiny of the police. He's handled himself, Abbe Lowell, that is, just the way a criminal defense lawyer ought to.
There have been some strange criticisms by Bill Bennett and others of what Abbe Lowell has done. But, you know, a criminal defense lawyer is not supposed to be a philosopher sitting back and thinking what's morally right every second of the day. He's got to advocate for his client. And...
VAN SUSTEREN: And actually, advocating is morally -- I mean that's what the -- I mean the Constitution tells a lawyer to do that, for God's sake.
YELLEN: Certainly. You know, what he's not supposed to do is decide what's broadly in the public interest, what, you know, some pundit might want him to do. His job is to do everything he can to represent his client's interest whether he's innocent or guilty or whether he doesn't know whether he's innocent or guilty.
COSSACK: David, let's -- there's a question that I've been asked many times, so I want to go right to the expert on this. Let's talk about the admissibility of lie detector tests.
Now, there are times when a lie detector test, a polygraph, will come into court but that's only pretty much when both lawyers agree, isn't that it?
SCHERTLER: That's exactly right. I mean you could agree and it could be admissible because it -- essentially, both sides consent. But otherwise, it's not admissible.
And Howard, obviously, may know more about the scientific underpinnings of polygraphs than I do. But I think that among most lawyers and particularly defense lawyers, they're not regarded as reliable. And even in this situation, I think Greta's right. Abbe Lowell hedged and did not promise a polygraph. And I would actually be surprised if he would agree to a polygraph.
VAN SUSTEREN: Except he's got to -- now he's got to dig his way out of it, which is a problem.
COSSACK: We know -- just like you said, for sure Condit's already passed that polygraph -- private polygraph test.
VAN SUSTEREN: Well, I
SCHERTLER: ... results of the test that he's already passed as a substitute. VAN SUSTEREN: I mean my guess is that when Abbe said that -- and I underline guess -- is that Abbe had done a dry run. I think that since -- that since he made that sort of "I'll talk to my client" and there's been a human cry, and everyone's been screaming for a lie detector test, my guess is Abbe is now -- and that's a guess -- you know, scrambling to do one privately.
But Howard, three questions you'd want to ask in a polygraph of this congressman.
MILLER: Well, I think I alluded to that earlier. I think that the first thing -- I want to verify the last time that he actually saw her.
VAN SUSTEREN: Why?
MILLER: Because there's been two reports of different times for different reasons.
VAN SUSTEREN: So what? So, he's confused or mistaken or thinks he might in, you know...
MILLER: Well, I know. But that's become an issue. Things that have not been resolved should be tested.
VAN SUSTEREN: OK, let's say you -- he lies about when he last saw her. It wasn't, you know, the -- whatever date it was -- you know, the day before or the day after.
MILLER: Well, it's material if he can't really vouch for the real time. If there's a reason for the equivocation, then we need to sort that out. We need to verify ground base reliability of the truth.
VAN SUSTEREN: Can you ask an open-ended question like do you have any knowledge about Chandra Levy's disappearance or where she is? I mean is that too...
MILLER: Well, the question might go down something like do you know for sure where Mrs. Levy is now -- or Miss Levy is now. Or another question might be do you know for sure of anyone who has had contact with Mrs. Levy since -- or Miss Levy since your contact. Questions would go in that frame. And the idea is to pin him down to a simple yes or no answer and get him to commit.
COSSACK: John, a lot of criticism of the Washington police that they hadn't conducted a search of the congressman's apartment prior to this. But it's not so easy to just walk in and search someone the way it should be. Of course, under our constitution, probable cause is an issue.
What was it in this case? Was there probable cause to get a search warrant, in your opinion, or did they have to wait until the congressman consented?
HICKEY: I don't think there was probable because if there was, they would have been in right away. They're concerned about the loss of a young woman. It's not something you take lightly.
COSSACK: Do you know they were saying that this was a missing person's case and not a criminal investigation? In fact, I think they're still saying it's a missing person's case.
HICKEY: Yes, they're still saying it's a missing person's case. And that's some concern that, you know -- where the case is going.
VAN SUSTEREN: David, what difference does it make if it's a missing person or a suspected homicide? I mean like -- let's face it, everyone's suspicious now it's a homicide, you know, whatever happened.
SCHERTLER: In terms of the investigation itself, there's no difference. I mean the reason they call it a missing person's is simply because there is this remote possibility, at this point in time, that she might have committed suicide or she might still be alive.
VAN SUSTEREN: Suppose they're wrong. Suppose they call it a homicide and she shows up in Colorado next week. What's the difference?
SCHERTLER: Well, see, they're not going to call it a homicide until they actually have the body or some other reliable evidence to show it was homicide. Until they get that, this will continue to be a missing person's case.
VAN SUSTEREN: So there's no more power to get investigative tools whether it's a missing person or homicide?
SCHERTLER: No, it makes no difference.
VAN SUSTEREN: We can just ignore this. No difference at all.
SCHERTLER: And I think -- to add to Roger's question, I think that the police department might have wanted to get a search warrant at the get-go. And I think the U.S. Attorney's Office probably said, rightfully so, we don't have enough probable cause to get a judge to sign the affidavit.
VAN SUSTEREN: We don't even know if there's a crime.
COSSACK: And as our...
VAN SUSTEREN: We can't have...
COSSACK: And as...
VAN SUSTEREN: There's no crime.
COSSACK: And as our viewers all know, you need probable cause under the Fourth Amendment of the Constitution before you can get a search warrant to walk into any person's house.
Let's take a break. Why is a woman who claims she had an affair with Congressman Condit talking to federal prosecutors? Stay with us.
Q: What state was the last to legalize Major League Baseball games on Sunday?
A: Pennsylvania in 1934.
COSSACK: Federal prosecutors are reportedly looking into whether Congressman Gary Condit asked flight attendant Anne Marie Smith to sign a false affidavit about an affair she claims she was having with him. Now, Smith is expected to meet with the United States Attorney's Office today to discuss her relationship with Condit.
All right, David Yellen, I'm going to put you back in the defense chair again. You now represent Congressman Condit. You have a possibility of a witness, Anne Marie Smith, who is testifying -- or is at least having a conversation with the United State's attorney's investigators today and the question of whether or not she was asked by Condit to sign an affidavit, which is not true. Are you concerned about an obstruction of justice charge?
YELLEN: Well, I think based on what we know so far, an obstruction of justice charge would be very unlikely. It's clear that the affidavit that was sent to Miss Smith was wrong, if she did have an affair with him. But not every time you ask someone to lie or lie yourself is it obstruction of justice.
VAN SUSTEREN: Well, wait a second, David. OK, I agree that not every time you ask someone to lie -- like if I told Roger to lie and say that I went home and I, you know...
COSSACK: To cover for you.
VAN SUSTEREN: ... went out to a restaurant -- to cover for me. I mean that wouldn't get me obstruction. But here you have an...
COSSACK: You get me objection.
VAN SUSTEREN: ... you get an -- you have an on-going investigation for a missing woman that people do suspect is really a homicide by someone. OK? And the police are going around investigating everybody who might know something. And you've got a woman who is interviewed by the FBI and she claims that the congressman said, you know, to lie to FBI. And she was presented with an affidavit, which has a falsehood. And then she claims that the congressman said "Lie and sign that".
I mean I don't know. I mean as a defense attorney, that would not make me feel particularly comfortable.
YELLEN: Oh, I wouldn't be comfortable either. But that doesn't mean it's legally obstruction of justice. As you know, it has to be -- a falsehood has to be material to a criminal investigation. And what I would say for Congressman Condit is whether or not he had an affair with her is not material to anything that...
VAN SUSTEREN: But I, you know -- as somebody said, it's not material to the death. I think it's material to the investigation.
David, help us out.
COSSACK: That's the technical problem. And that...
VAN SUSTEREN: I actually think it's materiality is not to whether or -- what happened to Chandra Levy but whether the -- that he was trying to deceive and distract the FBI.
SCHERTLER: Well, I think that the defense has the better of the argument on this materiality issue. I think that he could say, "Look, the only thing I didn't want her to tell the truth about, to the FBI, was that I had an affair with Anne Marie Smith. And I did not believe that that was material to the investigation until what happened to Chandra Levy whatsoever".
Now, if you were telling Anne Marie Smith to lie about the fact that Anne Marie might have known he had relationship with Chandra Levy, that is material.
VAN SUSTEREN: What about lying to the -- telling her to lie to the FBI?
COSSACK: Yes, isn't that a crime?
VAN SUSTEREN: Assuming that to be true.
COSSACK: That's a crime in and of itself.
VAN SUSTEREN: Assuming that to be true.
SCHERTLER: No, I think, with the false statements, it has to be material as well. False statements to the FBI would have to be a material false statement to be a federal crime.
VAN SUSTEREN: So it's not material to what actually happened. I mean the issue is whether it's material to Chandra's disappearance or material to the investigation.
SCHERTLER: Material to the investigation. And the investigation here, you know, is what happened to Chandra Levy, Chandra's disappearance.
COSSACK: Oh, I don't know if you'd be...
SCHERTLER: Is this affair with... (CROSSTALK)
VAN SUSTEREN: I actually...
VAN SUSTEREN: You know, I always felt -- I always feel uncomfortable when we're dealing -- about the question of materiality because it's such a fluid concept and prosecutors don't need a lot to indict. And what -- and when you're talking about an investigation for a missing young woman and you've got someone trying to distract the FBI, I don't know. I mean that's the
VAN SUSTEREN: Yes, go ahead David.
YELLEN: Yes, I -- you know, as we lawyers like to say, I think this is probably a close case. But if this weren't a high-profile case and if all he lied about or asked her to lie about was whether they had an affair, I think in an ordinary case, there's no way they would charge...
VAN SUSTEREN: Well, I think you've got to fold into the -- I think you've got to also fold into the fact that he has now, apparently -- and underline apparently because we're relying on...
VAN SUSTEREN: ... newspaper accounts and our reporting -- is that he was a little deceptive or deceitful about when he had last contact with Chandra Levy. So, he -- so I mean all this stuff doesn't have a particularly good aroma to it.
COSSACK: Let me ask John a question here. One of the problems that's come out of this case is there seems to be a great amount of leaks. And the leaks seem to have come from the police department in this case. Why is that?
HICKEY: Everybody that I talked with is concerned with it, too -- I mean with former policemen that -- why are they letting these things out? It's just like some things appear to be not true. And then even when they're leaked out from, obviously the police department, no one comes forward to say that was not a statement that came from us on the investigation.
VAN SUSTEREN: But I actually think...
SCHERTLER: The Metropolitan Police Department does not have, in effect, the kind of controls on its detectives to prevent these kinds of leaks. I don't think that they really enforce discipline...
VAN SUSTEREN: And I don't think the police department is obliged to keep coming out and correcting the press when -- you know, if the press gets it wrong too, which is another thing.
COSSACK: Yes, but if they're doing the leaking, you know...
VAN SUSTEREN: Well, I don't know that they are. I mean somebody is. But anyway, at least we think.
That's all the time we have for today. Thanks to our guests and thank you for watching.
Tonight on "THE POINT": We'll find out what happened today with Anne Marie Smith. I'll talk to her attorney, Jim Robinson. Join me at 8:30 p.m. Eastern time.
COSSACK: And "TALKBACK LIVE" is going to focus on the latest in the Chandra Levy investigation. So, send your e-mail to Bobbie Battista and tune in 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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