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.
GRETA VAN SUSTEREN, CO-HOST: Hello, welcome to BURDEN OF PROOF. We're standing by, of course, outside the Levy family home; we're awaiting a statement from the parents of Chandra Levy. And as soon as that happens, we'll go live to it.
But in the meantime, we're going to talk about other issues related to the investigation of Chandra Levy. As D.C. police continue the search for Chandra Levy, they are now planning to conduct background checks on the missing intern's former neighbors. Investigators also plan to search empty buildings in the neighborhood surrounding the apartments of Levy and Congressman Gary Condit.
ROGER COSSACK, CO-HOST: Today the police, along with federal prosecutors and FBI agents, will continue to question Anne Marie Smith about her relationship with the California congressman. Now, Smith claims Condit asked her to sign a false affidavit about the alleged affair. In addition "The Washington Post" is reporting the California minister is claiming that his then-18-year-old daughter had an affair with Condit seven years ago.
VAN SUSTEREN: Joining us today are criminal defense attorney Barry Pollack, former Assistant United States Attorney Amy Conway and Lou Hennessy, former commander of the D.C. homicide squad.
Let me go first to you, Amy. Obviously this is a criminal investigation. The Levys are about to speak outside their home. As a prosecutor, what is it that a prosecutor's worried about when family members of a missing person begin to talk?
AMY CONWAY, FORMER ASSISTANT U.S. ATTORNEY IN D.C.: I think you want to make sure that the family is not going to reveal any details of the investigation that they have not made public. But I think that the investigators understand that this is a very difficult personal matter for the Levys, and they're going to try to facilitate any message that they need to send out to the public.
I think that the Levys have been very successful in getting the message out in this case. I think it's helped the investigation in this case. And so I don't think that they're going to prevent them from passing out information.
VAN SUSTEREN: But in your routine case the prosecutor, at least in the District of Columbia, is not involved at this stage. This is hardly routine. Do you think in this particular case that the U.S. attorney's office is actually working with the police and having contact with the Levy family?
CONWAY: I think they are. I think this is an unusual case; I don't think this is your average missing person case. It hasn't been classified as a homicide yet, although there's a great suspicion that Chandra Levy is dead.
But I do think that the U.S. attorney's office is actively involved in the investigation. I know that there's a prosecutor that is meeting with the stewardess who's come forward about the potential obstruction of justice. And they are going to do whatever they can to facilitate the investigation with the FBI and the metropolitan police department.
COSSACK: Lou, it almost seems, in a sense, from what a traditional investigation is, as Greta was referring to, that this is somewhat a little out of control. It seems, in some ways, that what the police department is doing is reacting to public pressure, is reacting in some way to what the Levy parents are doing. Does that -- doesn't that kind of create problems for the police department or the investigators that they really don't need?
W. LOUIS HENNESSY, FORMER D.C. POLICE COMMANDER: Well, it could. But I think what's in the public eye is just one tangent of this investigation. I doubt seriously that the police are focusing as exclusively on the congressman as what the media is. They're probably looking at a number of other suspects and a number of other leads, potential theories in this case.
But the only avenue that's really getting any attention from the media or from the public is that it involves a congressman.
VAN SUSTEREN: And, of course, we see two people coming out of the Levy home right now, Dr. and Mrs. Levy coming out to make a statement. I guess it's going to be Mrs. Levy who is going to make a statement.
SUSAN LEVY, MOTHER OF CHANDRA LEVY: Well, you can see I haven't looked at the newspaper at all yet today, so all I can say is this: yes, I do know...
ROBERT LEVY, FATHER OF CHANDRA LEVY: We know Reverend Thomas and we do appreciate his concern. But we have to, you know, see what was said, and what's going on.
QUESTION: Did he outline an affair that his daughter was having to you?
R. LEVY: I know there's, you know, things reported. And you know, we -- it's in the paper, and right now we can't really comment more on that.
S. LEVY: We appreciate anyone coming forward to helping us get my daughter home. Thank you very much.
R. LEVY: We appreciate your help.
QUESTION: (OFF-MIKE) been threatened?
S. LEVY: I don't know anything.
R. LEVY: We don't know. A lot of things have been going on.
S. LEVY: We don't know anything.
QUESTION: Did you have a conversation with Minister Thomas?
S. LEVY: No comments. We've got to go.
R. LEVY: Thank you, though. Thank you.
QUESTION: Thank you.
QUESTION: Thank you.
VAN SUSTEREN: Obviously we've heard from Dr. and Mrs. Chandra Levy talking to reporters outside their home; picking up the newspapers. And they say that they know and appreciate people coming forward, and especially the minister coming forward.
And what's sort of interesting, at least, Roger, is that we heard from Chandra Levy's father. I had a conversation earlier with a source who said that he didn't even want to be present when Mrs. Levy spoke to the congressman because he was so upset. That's...
COSSACK: Well, you can only imagine what their life is like because their daughter is missing, how horrible that is. And then, of course, they can't -- you know, when they leave the house, there's people there who want to talk to them, and want to find out what they have to say. You can only imagine what their life must be like, and how difficult it is.
VAN SUSTEREN: Barry, we got the prosecutor's viewpoint, the detective's viewpoint. Do you think that Gary Condit's lawyer Abbe Lowell is paying special attention even to these sort of casual statements to the press?
BARRY POLLACK, CRIMINAL DEFENSE ATTORNEY: Well, I think everybody is paying attention to what's going on in the press. And I think that Roger is exactly right: In a lot of ways it's driving the entire investigation. I think that one of the reasons the Levy family is staying in the press is to make sure that the spotlight stays on the investigation, and that it moves forward and that the police are paying attention to it.
And I think you're seeing the police react to that. The lie detector test was a perfect example; the police were never asking for Mr. Condit to take a lie detector test until the Levy family started to push for that. Then all of a sudden the police expressed for the first time an interest in that. And even in doing that, the police noted that they were doing it in large part because they thought that the Levy family might take comfort from it, as opposed to that it's something that they would ordinarily do in an investigation like this.
VAN SUSTEREN: And what's sort of curious -- let me go to Marty Savidge, who's standing by outside the Levy family (sic).
Marty, I'm sort of curious; I was sort of expecting sort of a longer statement. Was this a planned meeting with the press, or was this sort of an accidental happenstance -- they went to pick up their papers?
MARTIN SAVIDGE, CNN NATIONAL CORRESPONDENT: A little bit of both. Every day they happen to come out and pick up their papers; and Mrs. Levy does that.
I had actually spoken to her on the front porch of the home about 20 minutes before she actually did so. We wanted to find out if she would be coming out at all today; if there would be some sort of statement. She said that she would have a very brief statement along the lines of what she just said. In fact, it was even a little more elaborate. She implied it was going to be absolutely just a no comment.
So it was a little bit more. I mean, they have, obviously, confirmed the fact that they do know this minister, Otis Thomas -- they haven't explained exactly how they know him -- and they appreciate the fact that he has sort of been speaking.
But they are very, very close to the vest as to exactly how they know him. And they are also obviously being very careful at this juncture as to exactly what they're being told or what they are saying. They said last night when we talked to them on this very same subject that they wanted to talk to Billy Martin, their attorney. It's clear that they are talking to him on a regular basis and they are receiving guidance as to how to talk to us, the media, that wait for them to pick up the daily morning paper.
So it was a little more than was expected, but it certainly was not a lot.
VAN SUSTEREN: And I'm curious, Marty, do we know where they're going -- not to sort of pry into their private behavior, but, I mean, is this something -- every morning they go out in the car and they drive off together, or is this some part of the investigation? Do you know?
SAVIDGE: It alternates. We don't know if they're going anywhere pertaining to the investigation, that is for certain. Usually the doctor will go out and head off to work, as he does almost every day, with the exception of the weekends.
And we communicate with them. We tell them, look, we don't want to be a hindrance on your life; we don't really want to be an intrusion. If you go for a walk, we may take some pictures of you, but we are not going to follow you wherever you go. We do try to actually work out so we don't make it any more difficult than it already is for the Levy family. And there is a lot of communication that goes on. Much of it is very casual conversation.
But we did know they were coming out. They did alert us. And as you saw, the television cameras were here to capture every word, no matter how few there might are been.
VAN SUSTEREN: OK, we're going to take a quick break. We'll be back with more on the investigation, looking for Chandra Levy. Stay with us.
(BEGIN LEGAL BRIEF)
A Wisconsin father of nine who owes $25,000 in child support to four mothers can be ordered not to father any more children while on probation, the state Supreme Court ruled.
The Wisconsin State Supreme Court ruled along gender lines in its decision, with the male justices ruling to uphold the lower court ban and the female justices ruling against it.
(END LEGAL BRIEF)
VAN SUSTEREN: Welcome back to BURDEN OF PROOF. We're talking about the Chandra Levy investigation. We just heard from the parents.
And let me go to you, Lou, and go back to this search of the congressman's apartment. Any surprises to you?
HENNESSY: No, not really. I think that what they were looking for is probably evidence of some type of a crime or some type of an assault. I don't think they were looking for evidence of her being there, because I think it's already been established that she had spent some time there.
VAN SUSTEREN: Do you think that the police went in there actually expecting to find something, or because they had been sort of offered the olive branch from the congressman and they accepted it?
HENNESSY: Well, I think they would have been remiss if they hadn't taken him up on his offer to search the apartment. I think that at least, you know, they can say they touched that base. I don't know what they really expected to find after this much time.
COSSACK: Amy, let's talk a little bit about this -- I want to go back to this lie detector test. The way it's going is apparently there's negotiations going on about, this (sic) is the questions I'll answer, this (sic) is the questions I won't answer. Let's suppose that Congressman Condit's representatives say, you know what, we can't agree. There's -- that's it, that's the end of the lie detector story, isn't it?
CONWAY: That's the end. COSSACK: There's no possible way that he could be forced to take a lie detector test?
VAN SUSTEREN: Boy, is that a political bomb.
COSSACK: And Barry, I want to go back over to you about that. Now I'm going to put you on the congressman's adviser list. Don't you think it's better for him to stop about -- to stop discussing what the parameters should be and just sit down and take this lie detector test?
POLLACK: Well, I wouldn't be discussing the parameters because I wouldn't be taking it, period. I mean, I think that's the position that he really should be taking. I think that the congressman obviously is very sensitive to the media perception of things. But the fact of the matter is that lie detector tests are notoriously inaccurate. They're very subjective. It depends in large measure on who it is that's...
VAN SUSTEREN: Spoken by a true defense attorney, Barry.
COSSACK: So why -- so Barry, so then why have these negotiations?
I mean, what you're saying is right; everybody here will agree that there's some problem with polygraphs. But, you know, the door has been opened. You mentioned earlier that perhaps it's a reaction to what the Levy parents want. The door has been opened. How do you then begin to negotiate?
POLLACK: Well, you ask the question, would I negotiate -- I don't think I would. If they are...
VAN SUSTEREN: But now you're stuck in it though, Barry. I mean, Abbe Lowell came out and said after the Levys, you know, raised that flag up the pole for a polygraph, then Abbe Lowell came out and he didn't say I would do it, he said if they want one I will discuss it with my client.
POLLACK: That's correct.
VAN SUSTEREN: Now he's got a problem, at least politically.
POLLACK: Well, I think that's right. I think it's a political problem and a PR problem because what the police did in reaction to that was, essentially take that as a blanket offer that he would take a lie detector test. And now...
VAN SUSTEREN: But it's also a legal problem, though, because if he declines to do it all of a sudden all the guns are pointed on him in terms of the investigation, I think.
COSSACK: I don't know about that. I...
COSSACK: ... what, you think people are going to be more suspicious of him because he refuses than they are now?
VAN SUSTEREN: I think so. I think if he took the polygraph test and he passed it, that would at least call off the dogs for a while.
COSSACK: But I can see why he -- there's some questions that he may not want to ask (sic). I mean, he may want to answer the question generally about his relationships with Chandra Levy, but you know, whatever else...
VAN SUSTEREN: No, no, here's a questions...
COSSACK: ... those are questions he doesn't want to answer.
VAN SUSTEREN: No, here are the questions: Do you know anything about her disappearance? I mean, do you have any involvement in her disappearance, No. 1. And No. 2, have you ever been violent towards her? Those are the two questions I think they want the ask her -- ask him.
CONWAY: Actually if they're smart, what they'll do is the defense team will go out and hire their own polygrapher.
VAN SUSTEREN: You better have done that already. That's true.
CONWAY: And what they'll do is they'll have him polygraphed in private. It is protected by the attorney-client privilege. And if he passed the polygraph and it's administered by someone who's a former FBI agent, who was used by the U.S. attorney's office or the FBI on a contract basis with cases, as well as by defense. If he passes it, then they can flout that off to the press and to the government and to the police and say you see, you see, he wasn't lying. He's been telling the truth all along; he wasn't involved, and let's move on.
And then if he doesn't pass it, they can stick it in a back drawer and no one will ever know.
VAN SUSTEREN: It will leak. No, not in this case. If we were talking about a separate -- it will leak, I think.
COSSACK: All right, let me interrupt for just a second, because we have been talking about polygraph -- we have some tape that just came in from the chief of police Charles Johnson (sic) of the D.C. police department talking about the...
VAN SUSTEREN: Ramsey.
COSSACK: Ramsey, I'm sorry. Go ahead, let's look a look at this.
(BEGIN VIDEO CLIP) CHIEF CHARLES RAMSEY, D.C. METROPOLITAN POLICE: There are discussions that are taking place. I have not participated in those discussions. Whether or not this will be a reality, I have absolutely no idea. The only thing I did know is this: If we can't have an interview in which we're able to ask the questions we want to ask, then there's no point in doing it.
(END VIDEO CLIP)
COSSACK: OK, so here is Chief Ramsey saying, unless we get what we want, we don't even want a polygraph test.
Lou, again, I kind of go back to what we were talking about earlier: Who is running this show?
HENNESSY: Well, first of all, if I were Representative Condit, I would not talk to the D.C. police at all. Everything that he has told them in confidence has been leaked to the media and become national news within about 20 minutes. And the leaks in this case have been unprecedented. And it directly affected the integrity of the metropolitan police department. I think it really puts the agency in a very poor light, that all this confidential sensitive information is being leaked out just as soon as it comes in.
VAN SUSTEREN: You know what? I think this polygraph is the legal land mine for Congressman Condit. I mean, we've got the whole issue -- the reliability issue. And of course, most American people think it's the truth machine. You know, we defense lawyers talk about the margin of error -- but you've got that problem.
Now you've got -- the problem is that even if they do, Amy, as you say -- they do a dry run secretly, which every defense lawyers does and -- you know, to make sure your client is on the up-and-up. But the problem is, the receptionist for the polygrapher, or the spouse who goes to bridge club or plays golf or something -- it's going to leak out if he fails. You can't put it in the back drawer in a case like this, I don't think.
CONWAY: I think you might be able to do it. I think if you have the appropriate people contact the polygrapher so that it's -- you know, it's done in secret; you tell your client not to open his mouth if he doesn't pass, and obviously it's in his interests not to open his mouth. And I think you just limit the amount of people who know.
COSSACK: You know, Amy, what the problem is, as Lou points out, and we have been discussing on BURDEN OF PROOF for -- there's incredible leaks coming right out of the police department...
VAN SUSTEREN: Yes, but the police wouldn't even know about this -- when this is just the private dry run done by the defendant...
COSSACK: Oh, the private dry run.
VAN SUSTEREN: But I've got to tell you, I do not think -- I mean, remember -- you know, hearken back to the O.J. Simpson case. We all heard about the one that O.J. Simpson attempted. I mean, it eventually does leak. In this town, there are no secrets.
POLLACK: I don't think you have to go back as far as O.J. Simpson. if you ask my old boss Plato Cacheris about consulting with a confidential psychiatrist, as they just did in the...
COSSACK: That's right, in the Hanssen case.
POLLACK: ... and then the psychiatrist went out and made public statements about the confidential interview that he had had with Mr. Cacheris' client. So I would be very wary of doing it.
I think you're absolutely right, Greta; that in this case, with this kind of media attention, the chances that it's going to leak out are very great. And you better be darn sure that you're doing it with a very limited number of people, and people you know and you trust if you're going to do it at all.
COSSACK: All right, let's take a break.
She claims to have had a 10-month affair with Gary Condit, and spent yesterday meeting with police detectives and U.S. attorneys. So let's next take a look at some of the questioning flight attendant Anne Marie Smith faces -- faced, and faces in these ongoing interviews. Stay with us.
COSSACK: Flight attendant Anne Marie Smith is still in Washington, meeting for the second day with U.S. attorneys and D.C. police detectives. Now, yesterday she spent almost seven hours answering questions about her relationship with Condit, including how they met, what they did, where they went and how often they got together.
All right Lou, you're now interrogating Anne Marie. What do you want to know from her? Why? And why is it important to this case?
HENNESSY: Well, I think what's important, from her perspective, is exactly what Congressman Condit asked her to do with respect to talking to the police. I think that sheds a lot on his character and his credibility, if he asked her to lie in an affidavit which, apparently, there's been some rumor to that effect. That would be of some concern.
COSSACK: Is this run of the mill, or is this the D.C. police beginning to focusing in more and more on Congressman Condit as a possible suspect. And I say now suspect, perhaps, with a capital "S" because in the past we've heard that he wasn't. But, you know, now they're bringing in another witness and they want to know about him, as you described.
HENNESSY: The problem is, as I said earlier, we're only hearing about the stuff that involves Congressman Condit. It's my understanding that there were at least three people that they wanted to polygraph in this case, and we've heard nothing about the other two.
So we don't know what type of information and what type of investigation have been -- they've been through with respect to those other suspects. And they may be doing the same thing there.
VAN SUSTEREN: Amy, this is sort of a collateral investigation with the flight attendant; and this is not by the police, this is the U.S. attorney's office. Yesterday we had a discussion with a former colleague of yours in the office, and we talked about whether or not, hypothetically, if you tell someone to sign a false affidavit in a sort of a collateral investigation and if you also in conversation tell that person to mislead -- or you don't have to talk to the police, is that, in your mind, something you would present to the grand jury to seek an indictment?
CONWAY: I think it really depends. I think you've got a couple of different issues there. First of all, it is not illegal to tell somebody that they don't have to talk to the police. It's done all the time...
VAN SUSTEREN: Lawyers do it all the time.
CONWAY: Lawyers do it all the time. Witnesses just do not have to talk to the police if they don't want to.
VAN SUSTEREN: What if you say: Lie to them?
COSSACK: That's a problem.
CONWAY: If you say, lie to them, it's a problem. I -- having worked at the U.S. attorney's office for a number of years, in my experience as a prosecutor, unless you've got significant corroboration, it is unlikely that the U.S. attorney's office will pursue those charges. But do they investigate it? Absolutely.
VAN SUSTEREN: What about affidavit -- someone urges you to sign a false affidavit? And the corroboration being, hypothetically, that there's -- the only corroboration -- where the only thing you have is you have a statement of one of the people, and you have a series of phone calls from cell phone records to show that these two have been talking a lot since the disappearance.
CONWAY: I think that's still a tough call. It's still going to be her word against his, as opposed to -- in regards to what happened during those conversations, and what specifically was said. I have read some news accounts about what she interpreted his statements to mean. The words that he used will be key in that; and I don't think we know what the words are right now, because we haven't...
VAN SUSTEREN: Of course not, we don't...
COSSACK: Barry, as a defense counsel, are you concerned at all about the fact that if you were representing Condit that, in fact, there may be an obstruction of justice charge or perhaps, you know, requesting someone not to tell the truth to an FBI agent or police agent? Are you worried about the fact that there might be an indictment?
POLLACK: Well, I would certainly be worried about the allegation and the perception. I think Amy is right; I think it's very unlikely that they're going to bring a charge solely based on obstruction.
If at some point my client were indicted for something else, I wouldn't be surprised to see the government throwing in that obstruction count to try to paint an overall picture of my client trying to hide the truth. But I think it's very hard for them to bring an obstruction count in isolation.
VAN SUSTEREN: You know, Barry, that's what everybody says -- Amy says it (sic) has some reservation, Roger has reservation, you have reservation. I still think -- and maybe it's the defense lawyers in me, and I always thought all my clients got indicted for everything -- I've got to tell you, it doesn't take a lot to indict for some reason. In a high-profile case, boy, I would not be surprised. I have no clue, we don't know the facts, as Amy said, but I would have great apprehension.
COSSACK: I just think it's a tough case to prove, and I think that, like most prosecutors, they don't want to prove a case -- they don't want to file a case, or indict a case that they're not sure they can win.
CONWAY: And there's also a lot of media attention on this case. There's a lot of...
VAN SUSTEREN: But you can't get congressmen off the hook, is the way they would look at it -- is he getting special treatment? I think there's actually political pressure to look for a problem for the congressman as opposed to looking the other way. I actually think it's the reverse problem.
COSSACK: You've got the last word.
That's all the time we have for today. Thanks to our guests; thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.
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