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CNN Burden of Proof

Was Robert Downey Jr. Given Special Treatment?

Aired July 16, 2001 - 12:30   ET

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.
ROGER COSSACK, CO-HOST: Downey entered a plea of no contest to the charges.

Joining us are former investigator Howard Miller, criminal defense attorney Kenny Robinson and criminal defense attorney Jim Cole. So I think do end up with the first question after all. Let's talk a little bit about...

GRETA VAN SUSTEREN, CO-HOST: Can I ask the first question?

COSSACK: Absolutely.

VAN SUSTEREN: All right, you're a California lawyer.

COSSACK: All right.

VAN SUSTEREN: How do you get probation?

COSSACK: Well, you know, Greta, here's what happened. Under Prop 36, which the California electorate passed last November, they made a policy change, if you will, and what they want to do with nonviolent drug offenders. And what they basically decided to do was, they say, "Look, this is a social problem, perhaps a medical problem but it may not be, at least initially, a criminal problem. And the courts like every other state in this country are getting backed up with drug arrests and prisons and sending these drug violators...

VAN SUSTEREN: So it's not because he's an actor, basically?

COSSACK: No.

VAN SUSTEREN: He's getting no special treatment?

COSSACK: No, under the law, under Prop 36, if one could argue that perhaps he got the benefit of the doubt because this law wasn't supposed to go into effect until July, and his crime was committed prior to that time. But you know, I...

VAN SUSTEREN: Wait a second. That way nobody ever get -- I mean, wait a second. That's actually not insignificant. I mean, I'm not saying that he should get prison...

COSSACK: Right.

VAN SUSTEREN: ...but the fact that it doesn't go into effect until July and he committed the crime at the time in November...

COSSACK: Yes, but I don't think it's just him that got the benefit of the doubts. I think prosecutors up and down the state then began treating these cases as if Prop 36 was in effect. And the reason is because this is what I told you. From a policy change, it's clear. It was passed overwhelmingly. The people of the state of California want their nonviolent drug offenses treated like this. And why should a prosecutor, you know, buck the crowd?

So in many ways, you know, he got a lucky break because they passed the law, but he's getting treated like everybody else.

VAN SUSTEREN: OK, he pled no contest.

COSSACK: Right.

VAN SUSTEREN: Not guilty.

COSSACK: Right.

VAN SUSTEREN: Why does he get no contest and not a guilty plea? Why didn't the prosecutor force him into that?

COSSACK: OK, in California plea of no contest, nolo contendere, is treated as a guilty plea. In other words, if he went out and got arrested again, it would be a prior conviction.

VAN SUSTEREN: It is here, too, Roger, in many ways. But the problem is: You don't get it for armed robbery. You don't get it for murder. Why do get it for this?

COSSACK: In this case, remember, it was a drug charge in which it was -- he was not going to go to prison. It was part of a plea package. He entered a plea of nolo contendere. The only benefits he gets would be if somebody was going to sue him, they couldn't use a plea of guilty as a way of establishing his liability, but in effect in the criminal law, it is treated as guilty plea.

VAN SUSTEREN: All right. Well, no one's going to sue him civilly on this and I don't think -- I can't imagine the case. Let me ask Kenny. Kenny, you've been around the block a long time and doing drug cases. What do you make of this?

KENNY ROBINSON, CRIMINAL DEFENSE ATTORNEY: Well, proposition 36 gives him that benefit like everybody else, he should have gotten it. As far as a no contest plea, I don't know of anybody in this three state area who's gotten one of those since Spiro Agnew did in 1970. That was the last one I know of.

COSSACK: Well, what does it really help you, Kenny. It doesn't help you. It gives your lawyer something to talk about. Look, I got you a no contest plea, instead of...

ROBINSON: Sounds nicer than a guilty, but you know, I'm glad he got a break. The guy's a tragic situation.

COSSACK: Well, that's the bottom line.

ROBINSON: And he'll go away for a long time.

VAN SUSTEREN: Yes, but I'm glad he got a break, too, but the problem is, you know, what about all the guys who don't? I mean, come on, Kenny, there are a lot of guys out there who aren't famous actors.

COSSACK: I want to stand up for California. I would say since proposition 36, by and large, and I can't -- look, I can't point to every case, but I can tell you that people are being treated like he's being treated.

VAN SUSTEREN: My bet, Roger, I don't know this last 10 people who had the same drug charge in that courtroom didn't get no contest.

COSSACK: You know, Greta, I bet you're wrong. No contest is pretty serious.

VAN SUSTEREN: Really? All right.

COSSACK: ...is pretty -- is something that's fairly easily accomplished in California, particularly in cases where people are going to jail or prison. They'll let them plead not -- or let them plead no contest, take the plea, everybody congratulates him, that they didn't have to plead guilty, and ship him off. So it's just one of those things...

VAN SUSTEREN: I'm not saying it's a bad idea. I'm just curious whether everyone gets it. I certainly think everyone should get what he gets.

COSSACK: All right.

ROBINSON: You know, next time he's going to go away.

COSSACK: Yes, next time...

ROBINSON: I mean, no relief next time. And that really would be a tragedy, to show how bad his problem is.

COSSACK: Yes, there used to be a judge in California. I practiced, used to say to my clients, "Next time there isn't going to be next time." And I think that's pretty much what here is. Let's take a break.

When we come back , the case of Chandra Levy, why the D.C. police are searching a Washington park. Don't go away.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SUSAN LEVY: I want my daughter home, and I want her alive, and I want to truth to come out.

CHARLES RAMSEY, D.C. CHIEF OF POLICE: We don't what happened to Chandra Levy. We've got to explore all possibilities.

ABBE LOWELL, CONDIT'S ATTORNEY: Congressman Condit has never been and is not now a suspect.

UNIDENTIFIED MALE: What they're going to be looking for is any evidence of an attempt to clean up a potential scene there.

BILLY MARTIN: The Levy family is extremely upset with Congressman Condit.

DAVID GERGEN, FORMER PRESIDENTIAL ADVISER: ...withheld information from the police.

LOWELL: Try to see if there's somebody else there who might have some information.

UNIDENTIFIED FEMALE: I think that a family's 24-year-old daughter is missing and has not been heard from for 2 1/2 months.

(END VIDEO CLIP)

VAN SUSTEREN: Washington police are bringing in 50 police recruits to help comb areas around the apartment of Chandra Levy. They're focusing on 2,800 acres in Rock Creek Park, according to "The Washington Post," one of the Web sites browsed by the missing intern before her disappearance included information about the Klingle mansion, which is located in the park.

COSSACK: And the Levy case was profiled Saturday night on "America's Most Wanted," leading to more than 160 tips. Now one caller reported seeing a person in a van outside Levy's apartment building the day she disappeared, allegedly attempting to lure women.

VAN SUSTEREN: Joining us from the site of the police search in Rock Creek Park is CNN producer, Brad Right.

Brad, what's going on right now with the search in the park?

BRAD WRIGHT, CNN PRODUCER: Well, right now, Greta, they have broken for lunch. They expect to be back on the job by 1:00, perhaps a little bit after. And they intend to go from this area, which is about three quarters of a mile or a half a mile north of the zoo for people who might know where that is. And they are heading toward -- they will be heading toward the zoo, through a wooded area, much like this one.

VAN SUSTEREN: Brad, was -- I mean, why Klingle mansion area? I mean, it's just because it showed up on her computer, or is she's a jogger because it's a popular jogging route? I mean, why this search?

WRIGHT: Well, it could be because of jogging. There are nice paths here. We've seen joggers here all morning and into the afternoon. Although we also heard that possibly she had friend or acquaintance that she wanted to visit who lives in a small neighborhood near here. COSSACK: Brad, how long have they been searching and how long will they continue to search? And where are they going from here? I mean, is it just the Klingle mansion or is it the grounds? What exactly are they going to do?

WRIGHT: Well, there's a large wooded area here. It's all federal park land. They started north of here about half, three quarters of a mile, tried to do a grid search, which is people lining up at arms-length and combing a swath of area. They can't really do that very well here because of the thick brush and the woods. So they had to take that very slowly.

We saw maybe 15 or 20 of them come through here, just before 11:00 this morning. And they seem to be going very thoroughly through as much as they possibly could, as they made their progress south. And once lunch is over and they resume searching, they will heading toward the National Zoo. And that's maybe half, three-quarters of a mile from here. And how far they get beyond that is anybody's guess.

It's kind of warm here in Washington today. The heat may slow them down a little bit. I noticed that many of them were really sweating and appeared to have been laboring.

VAN SUSTEREN: Jim Cole, read the tea leaves for me. Where do you think this investigation is going?

JIM COLE, CRIMINAL DEFENSE ATTORNEY: I think it's floundering. I think they don't have a clue what has happened to her. And they're doing anything they can. The question I've got is, why not search abandoned apartments and obvious parks and places like that months ago? I think that whatever leads they have are proving to be just blank dead ends.

VAN SUSTEREN: You know what is so curious to me is, and Kenny you may have had the same experience, the Rock Creek Park, when I practiced criminal defense work, I had two murder cases where they found bodies in the park. It's not unusual. And don't you think that this is a little bit late, since it is sort of in the direction -- I mean, it's not far from her apartment.

ROBINSON: Everything is late. I mean, like I say, the search and asking the congressman early on did he have a sexual relationship with her? Wait until the third time to let him admit all that. I don't know what they've been doing.

I think the police are working very good job right now, but I think they waited too late. And some day, they're going to find a body somewhere, and it'll be interesting what the DNA shows if she's really pregnant and is the congressman the father. If so, who is the father? And maybe then, they'll be able to solve the riddle. But until they find her, they're not going to get anywhere, I don't think.

COSSACK: Howard, in a situation like this where the police are pretty much in a situation where there's no strong clues, there's no strong leads, what do they do? I mean, is it like looking for a needle in a haystack? Do they just say, "OK, today we look Klingle mansion and..."

HOWARD MILLER, FORMER INVESTIGATOR: Well, they have here...

COSSACK: ...Rock Creek, tomorrow we go someplace else?

MILLER: Well, potentially they're covering the basics again. I'm sure that they've conducted some intermediate searches prior to this time, but it looks like now, they're going back to the basics. It's interesting the grid search was mentioned. In that hilly terrain of Rock Creek Park, grid searches are hard to manage. And we have all the types. You have spiral searches. You have crisscross. In other words, you go down one end and you come back down this way.

And chain to custody, if one of those officers finds something, it requires strict management on a crime scene like that in that type of search, in that type of hilly terrain.

COSSACK: And he's kind of difficult to manage, you're saying?

MILLER: Absolutely. And also, we have animals. Animals move bodies. Animals interfere with the crime scene. So if we find out something. And of course, we all hope, we hold out hope for the life that Ms. Levy is alive. But if not, if we find her, nature has had time...

VAN SUSTEREN: If they're going to find her in Rock Creek Park, I don't think anyone's optimistic that she's going to alive. Brad, let me go back to you. I lived in Washington, D.C. a long time, lived not too far from the Klingle mansion. Never heard about it until this weekend. What is the Klingle mansion? Do you know?

WRIGHT: Yes, it's a stone building that was built in 1823 by fellow named Joshua Pierce, the horticulturist. Right now, it's used by the park service as a superintendent's office.

VAN SUSTEREN: Is there any hypothesis -- have you heard anything from any of the investigators as to why they think that it may have been search site on her computer, what the attraction would be to her for the Klingle mansion?

WRIGHT: Not a thing. The only thing I've heard is that possibly either Congressman Condit or Chandra Levy had an acquaintance, a friend that may have lived in a very small neighborhood that is just down the hill from here.

COSSACK: One thing that police did announce is they're not going to use the dogs, these cadaver dogs to look through landfills. And they said it was an economic reason, that they just didn't -- that it was too expensive to do that kind of thing. What does that mean?

MILLER: Well, unfortunately in a police budget, you know, there's a priority. And I'm not sure that -- I can't justify the chief's decision, but he's watching the books and he's taking care of the management of the organization. He has got a large police department, lots of cases, lots of action. On Friday and Saturday nights, the D.C. police emergency 911 lines just light up the board. And they're out breath.

When I was a police officer, it was nothing to hear the dispatcher go into, sort of an out of breath panting type of dispatch mode. So it's a busy night or a busy operation. It's not small town Mayberry.

VAN SUSTEREN: And of course, you've got the problem of everybody watching. Let me go to New York to George Rosen, polygraph examiner.

George, in the event that Congressman Condit does take another polygraph examination by the police, is there set of questions you think is important, number one? And number two, and I say this only hypothetically, how easy is it to beat a polygraph?

GEORGE ROSEN, POLYGRAPH EXAMINER: Well, basically you don't beat a polygraph. You can beat an examiner. It depends on how thorough the examiner is, how he words his questions, and how experienced he is.

VAN SUSTEREN: If I conduct a polygraph examination of someone, and I then pronounce either deceptive, inconclusive or truth telling, I then pass my charts to you. Are you going to come to same conclusion necessarily as I am or do you need to actually conduct the examination yourself?

ROSEN: Well, I feel I would have to conduct the examination myself because in order to take an examination the way Mr. Condit did, it's, in my opinion, a way of avoiding legitimate examination, a method to go around it. Because taking an examination under these circumstance, it's be like going before a jury, the American people, and presenting a case with only the defense showing their case, with no prosecution showing their portion of the case. And I feel it's very one-sided.

VAN SUSTEREN: All right. We're going to take a quick break. Lawyering is an art, not a science. So how are the attorneys involved in this case faring so far? And what lies ahead for them on this legal battlefield? Stay with us.

(BEGIN LEGAL BRIEF)

According to the FBI's National Crime Information Center, there have been 428,228 reports of missing persons this year through June 30. There were 876,213 in the year 2000.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF. Jim Cole, how's Abbe Lowell, who's the attorney for Congressman Condit doing?

COLE: Well, he's got two things to. One is a legal problem of how he deals with it? The other is the problem. I think he probably lost a half a step on the legal problem by having Condit do the private polygraph. He's lost... VAN SUSTEREN: He had to do it. I mean, you have to take a client. You've got to do that dry run and do that...

COSSACK: Yes, but you don't have the analysis.

VAN SUSTEREN: He put it in the drawer.

COLE: But he has lost the ability to say I don't believe in polygraphs. And they're no good. And they don't work, which is in fact, the truth.

VAN SUSTEREN: Well, I agree. That's important.

COLE: Yes. He has the lost the ability to make that argument to the public. And it was starting to gain some steam.

VAN SUSTEREN: So if you were an Abbe Lowell's shoes, you've got the press clamoring for you, you've got the Levy family, you've got Billy Martin out there saying and you've got the police saying, "we want a polygraph." What do you do?

COLE: You sit there and you say, "Ask him all the questions you want to ask him, he will give you all the interviews you want, but polygraph is just modern day witchcraft.

VAN SUSTEREN: But if it's modern day witchcraft, why have we already done it then is my question.

COLE: Well, that's the problem. He shouldn't have done it. He's lost the ability to say it's modern day witchcraft and get away from it. In a polygraph test, the real value is the interview that's done before the test and the interview that's done after the test without a lawyer present.

VAN SUSTEREN: Is it really witchcraft, Kenny?

ROBINSON: Well, yes, I mean, I've done that on cases with no publicity before, have my target do a polygraph and then leak it out to The Washington Post. It's all nonsense. Abbe's already said in his press conference last week that -- all said, there'd be no more polygraph. This guy teaches the FBI guys how to do the polygraph.

He was all a P.R. move. I mean, it's just a phony polygraph and he's not going to take any more polygraphs no matter what. I'll guarantee you. He's already said he's taking one. I'm not telling the questions. He won't take another polygraph. And he probably wouldn't pass one.

COSSACK: Well, Howard -- what he said was, he said, "Look, you know, my guy passed polygraph. And he answered the three most important questions. Did you do it, did you do it, did you do it? And it all came back no, and they said he was telling the truth. Is that a complete polygraph? I mean, does he need anymore than that?

MILLER: Well, you've got to understand, the police are the sole repository of the information. They're conducting the investigation. They've interviewed hundreds of witnesses. They have questions that they want to ask.

VAN SUSTEREN: But...

COSSACK: The bottom line is....

VAN SUSTEREN: ...central question...

COSSACK: Yes, isn't that the...

VAN SUSTEREN: Do you know anything about the disappearance or the killer?

MILLER: In fairness to this test, I heard the questions. I agreed with those questions, but like I said, there's a lot of gold in the pretest interview. And there's a lot of gold in the post test.

VAN SUSTEREN: Like what?

COSSACK: I mean, what more did you need to know than that?

MILLER: Well, they may want to verify the time issue. When was the last time you actually saw Ms. Levy.

VAN SUSTEREN: OK, suppose he lied about that. Suppose he said he saw her at 7:00 and he saw her at 9:00. He's a flat-out liar about that, but he's flat-out truthful that he has nothing to do with her disappearance, isn't that --

MILLER: Well, there are so many variables in the test system that you've got to start with good pretest and have a good post test. We have yet to see the charts on the tests given to congressman. The -- Mr. Lowell promised to have these charts made available to police as of 12:00 noon yesterday. Police haven't received them yet.

COSSACK: But the gentleman that gave the test is a very renowned, well-known lie detector gentleman.

MILLER: That's right.

COSSACK: Doesn't he have any -- isn't there any built-in ethics protection, if you will?

MILLER: Well, he's referred -- I think all contacts made with him have been referred to the attorney. This is attorney-client privilege issue and he's an agent of the attorney, and he's bound by that.

VAN SUSTEREN: Jim, how is Billy Martin doing, the lawyer for the Levy family? I mean, he's sort of a P.R. spokesman?

COLE: He is very much so a P.R. spokesman. And he has put this story on the front page when it wasn't necessarily on the front page. And he has applied the pressure really that's really made the police go back and say what is it that we've missed and what is it that we're doing? And I think he's done a very good job of really raising the heat underneath the police and getting them to do a better job. VAN SUSTEREN: Kenny, you know Billy like I do. We've tried cases. He was a federal prosecutor here in a lot of forms.

ROBINSON: He's doing a great job, but on the other side, it's not really Abbe's fault. He's got a congressman. If you've had congressman, they don't listen to anything you tell him. He had a staff representing that they were friends. And he had no intimate relationship.

VAN SUSTEREN: You've had a congressman, haven't you?

ROBINSON: We lost that one with -- very quickly.

VAN SUSTEREN: Who did you represent?

ROBINSON: Jenrette. And you couldn't tell him anything to do. I mean, his wife, you couldn't tell her what her to do. And I guarantee you that Abbe's tried to tell Condit what to say and do. He won't listen to them. I don't know who's responsible for the false affidavit to the airline stewardess. I'm sure it wasn't Abbe. I hope it wasn't Abbe, but that was a...

VAN SUSTEREN: That was the lawyer out in California.

ROBINSON: ...blundering amateur move. And the staff going on for weeks saying that they never had a relationship, allowing that lie to continue when the congressman would later come forward is preposterous. And it makes it look like the congressman would do anything to cover up to protect his political career. Interesting question if she shows up dead and she's pregnant, DNA by his baby, did he have a motive to whack her? I don't know.

COSSACK: Well, right, but that hasn't happened yet.

ROBINSON: You've got to look at it, you know?

COSSACK: Well, you have to look at it, but it hasn't happened yet. I mean, Jim Cole, all you can go by, all of you gentlemen, you know lawyers, all you can go by is what your client tells you, right?

VAN SUSTEREN: If you were lying, wait a second, Roger. We all jump you on that one.

COSSACK: No, wait, wait, wait.

ROBINSON: You know that that's usually not the entire story.

COSSACK: Well, wait a minute.

ROBINSON: And you plan for the worst.

COSSACK: Well, you plan for the worst, but you can't go out there and say, "Listen, if the congressman says look, I had nothing to do with this, you can't say, tell you the truth I think you did have something to do with... VAN SUSTEREN: Roger, wait a second. Get away from the hypothetical of this one. We all know is that every client lies to a lawyer. I mean, if you believe everything...

COSSACK: Well, not my clients.

VAN SUSTEREN: Right, you're the only guy in this entire country.

COSSACK: Not my clients. Truth was the way we communicated.

ROBINSON: Send them over.

VAN SUSTEREN: Send them over. I mean, you're the only one with truth telling clients. I mean, they all lie a little bit, you know.

COSSACK: Gee, you guys are so cynical.

ROBINSON: That fits into the checks in the mail scenario. You know, that attitude that well when I was -- as an investigator I've been sent over to D.C. jail to interview someone. And the attorney comes back and he says, "Well how did you find all that out?" And I said, "Well, he told me." And it's almost like when you start some kind of interview with these inmates or defendants, they come across with the information.

VAN SUSTEREN: No, when I need a lawyer, I'm going to you.

COSSACK: All right. We got to go. That's all the time we have for today. Thanks to our guests. Thank you for watching.

VAN SUSTEREN: Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.

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