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: Today on BURDEN OF PROOF: Missing in America, police are offering thousands of dollars for information on the whereabouts of missing 36-year-old Dena Raley McCluskey. She was last seen in the fall of 1999 in Modesto, California. Now, her family is speaking with the Levys and to BURDEN OF PROOF.
Plus, Gary Condit was allegedly seen dumping some trash in Northern Virginia just hours before police arrived to search his Washington apartment.
SUSAN LEVY, CHANDRA LEVY'S MOTHER: I want my daughter home and I want her alive. And I want the truth to come out.
CHIEF CHARLES RAMSEY, D.C. METROPOLITAN POLICE: We don't know what happened to Chandra Levy. We've got to explore all possibilities here.
ABBE LOWELL, ATTORNEY FOR CONGRESSMAN CONDIT: 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 the potential scene there.
BILLY MARTIN, ATTORNEY FOR THE LEVY FAMILY: The Levy family is extremely upset with Congressman Condit.
UNIDENTIFIED MALE: He withheld information from the police.
LOWELL: Try to see if there's somebody else out there who might have some information.
UNIDENTIFIED FEMALE: A family's 24-year-old daughter is missing and has not been heard from for two and a half months.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.
On the night that Washington police scoured Gary Condit's apartment looking for clues in the Chandra Levy investigation, the California congressman was allegedly seen dumping something in a Northern Virginia trash can. On a tip from a witness, investigators went to the trash can. A subsequent probe led investigators on a trail to a new mystery woman. Meanwhile, police are under fire from their own union, which complains that too many resources are dedicated to the Levy case. Union officials say other homicides in the city are not receiving enough investigative attention.
Joining us today from Miami is criminal defense attorney Jayne Weintraub and from Modesto, California, Detective Tom Blake with the Modesto Police Department. Here in Washington, Julie Hofler (ph), former chief of the felony trial division at the U.S. Attorney's Office and independent counsel, Alexia Morrison and Natalie Howe. Also, joining us here in our Washington bureau, CNN national correspondent Bob Franken.
Bob, tell us about this latest news with the trash can.
BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, according to police sources, about four hours before the search of Gary Condit's apartment, the one he voluntarily allowed 10 days ago, he was seen by somebody in Alexandria dumping something in a garbage can. Ironically, he was recognized because of all the publicity, all the times that he's been on television in recent times.
At any rate, that person called police, police came out and found a watch case. They took that watch case, went to a store, finally identified it as belonging to woman in California. They ultimately talked to her. It was a girlfriend, as they describe it. And they say that she had given him that as a gift. So, that was about four hours before the search.
No word if anybody is doing any further investigating. Police say that it had nothing whatsoever to do with Chandra Levy. It's important to say, that even when they're telling us that, the sources are, they go on to say they have no information that Gary Condit had anything to do with the disappearance of Chandra Levy.
And one other thing if I may, this has just come up, Kelli Arena, our justice correspondent, has confirmed from law enforcement officers that Reverend Otis Thomas, who's a Pentecostal minister and lives in Ceres, California, has lied to investigators. According to these law enforcement sources, lied to the FBI when he said that he knew that his daughter had had an affair herself with Congressman Condit seven years ago, when she was 18. That was a story that broke last week. Now, the investigators say that they were lied to by Reverend Thomas.
The one thing I will point out is in addition to being a Pentecostal minister; he also worked as a landscape man and did gardening for the parents of Chandra Levy.
VAN SUSTEREN: So I guess, Bob, we could say that at least in the Otis Thomas front, the congressman has one public relations victory.
But let me go back to the trash. The headline is --you recited this to me -- the thing that sort of -- that jumps out to my attention is you say it's in Northern Virginia. He lives in Washington, D.C. That's across the river and across the bridge. What was he doing in Northern Virginia? Do we know? FRANKEN: We don't have any word on that. We don't have any word whether he made a special trip to do that or whether, in fact, he just happened to be in Alexandria. As you know, that is an area that also has a lot of restaurants in it, that type of thing. We don't have any explanation from anybody, and certainly, we've asked, why he was there and why it happened there.
VAN SUSTEREN: So there's no sort of trail, that he took an empty box from his apartment, crossed the river -- went over the bridge, crossed the river and dumped something in the trash can.
FRANKEN: Well, if the police know about that, they haven't told us.
VAN SUSTEREN: All right, let me just say one other thing before I let you go. Polygraph, where do we stand on the polygraph?
FRANKEN: Still waiting for the FBI to provide its final analysis to the Washington D.C. Police Department. We have some information that they may never express an opinion. As you know, this was done by an investigator or polygraph person who was hired by Congressman Condit. Police officials believe that that makes it inherently invalid and so they might possibly -- not even release a final opinion.
D.C. police, of course, are saying that they're very disappointed, that they would like to have had control over what questions were asked.
VAN SUSTEREN: Alexia, why, at this point -- or do you think the police, at this point, should ask for their own polygraph for the congressman?
ALEXIA MORRISON, FORMER ASSISTANT U.S. ATTORNEY: Well, from the reports I've seen, the police are asking for their own and continue to ask for their own. It doesn't surprise me that they're not accepting the one that's been proffered by the defense.
VAN SUSTEREN: Why not? I mean this is an experienced polygraph examiner. I mean he even used both sides of the aisle by both prosecutors and defense attorneys. Why not use his?
MORRISON: Saying that you want one of your own, that is, for the government to get one of its own, doesn't cast any aspersions on the abilities of the examiner who did the defense one. It just means that they're a very delicate operation. You need to formulate questions with as much knowledge as you possibly can of the critical facts in the investigation. You need to set up the exercise so that the evoking of the kinds of physical responses that indicate dishonesty are as likely as possible to be triggered. And that's a very delicate process.
They put the subject of the lie detector through the entire set of questions that are going to be asked before they actually do the final test. And that's so that there will be some anticipatory nerves, if you will, about difficult questions. And so, that you optimize the likelihood that there will be a reading that indicates if someone is being untruthful. All of those things are very, very delicate. And at the end of the day, you know, law enforcement types are supposed to be skeptical and...
VAN SUSTEREN: That's their job.
VAN SUSTEREN: Well, let me go to our defense attorney, Jayne Weintraub.
The polygraph, apparently, at least it's reported by Abbe Lowell, a very well respected lawyer here in town, that his client passed. Now, the police want their own. If he were your client, what are your feelings about that?
JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: If he were my client, I would have done just what Abbe Lowell did. I don't know if I would have leaked it to the press at 5:00 but Abbe had a very difficult job here. There is no responsible defense lawyer, as you know, Greta, that would ever put their client up for polygraph by the government without first having privately polygraphed him to make sure that would he pass.
VAN SUSTEREN: Absolutely, and -- but usually, we do it sort of on the sly. We'd sneak it.
VAN SUSTEREN: And then we'd let the police do one and we stand by acting like it's the first time we've seen it. He announced it.
WEINTRAUB: That's right.
VAN SUSTEREN: Was this, do you think, an effort to sort of avoid having the prosecution or the police do one?
WEINTRAUB: Well, no, I don't think that Abbe could have ever quelled their desire to have their own polygraph.
But I think what was important and what was on Abbe's mind is the balancing test. He has a political hot potato. Condit's life, his very livelihood, is at stake here. And so, he leaked it 5:00 maybe to float it for the press. For whatever reason, it can't take away or diminish the results. The results are the same. He passed the polygraph.
VAN SUSTEREN: All right, so now the question, would you, if you were the lawyer -- now, the police want one. What do you say to the police?
WEINTRAUB: I say absolutely.
VAN SUSTEREN: They can take one?
WEINTRAUB: Absolutely. VAN SUSTEREN: No problem?
WEINTRAUB: My client has nothing to hide. Greta, this man who has done everything he possibly could to cooperate with the authorities. This is not a man, despite the fact they keep saying he's not a suspect and he obviously is, he has tried to do everything humanly possible to show, focusing on the homicide, he's not guilty, he didn't do anything and he has no knowledge. Don't you think this man is hurting?
VAN SUSTEREN: That we'll leave for my experts, who I assume -- that I assume this is not a very good time for them.
We're going to take a quick break. When we come back, searching the park. Are investigators working hard or working smart? Don't go away.
(BEGIN LEGAL BRIEF)
Brad Pitt and Jennifer Aniston are suing an Italian jewelry designer for $50 million, claiming it violated an agreement never to reproduce their personalized wedding rings. The lawsuit claims Damiani International sold replicas of their rings and used the couple's names and images in advertising without permission.
(END LEGAL BRIEF)
VAN SUSTEREN: This morning, forensic teams arrived at Rock Creek Park after a bone was found by search crews. Search efforts were temporarily halted by the find, but police believe the bone is that of an animal. Investigators in the Chandra Levy case are in their fifth day of combing Washington parks and abandoned buildings.
Bob, it seems like either they're looking for a needle in a haystack or a dead end.
FRANKEN: Well, or they could, you know, suddenly find something. And they're hoping for that. But it looks pretty rough. It's -- there's an awful lot of under brush out there. As a matter of fact, what they're doing now is they're just looking at the areas adjacent to paths, operating on the theory that if in fact something untoward happened to Chandra Levy, she would have been quickly dragged off the path to somewhere nearby and whoever was the perpetrator would just escape as opposed to going deep into the forest. So, that's their operating theory now.
VAN SUSTEREN: Alexia, you ran investigations in the U.S. Attorney's Office for a long time here. If you were involved in this case, and I realize it's the police investigating it, but what should they be doing? Are they doing what they should be?
MORRISON: Well, I mean one of the difficulties here is you're starting with no evidence that there is actually a crime. I mean there is no hard evidence yet that she was the victim of a crime. VAN SUSTEREN: But isn't it sort of preposterous to think that she's sunning herself in the Bahamas. I mean, don't you think most people, as -- I mean, assuming that a crime has been committed? Not that anyone in particular has committed it but you know, a young woman doesn't usually just sort of wander off and leave her laptop.
MORRISON: But at the end of the day, you have to start with a crime and investigate that offense or that apparent offense. And at the moment, we don't even have a way of determining whether it looks like this was stranger-to-stranger situation or heaven forbid, a suicide or -- I mean there are a lot of unhappy options out there. And until you actually find some hard evidence that she died and that there was some indication of the manner of death, you really don't know where to start. You're kind of out there investigating a lot of possibilities with no focus.
VAN SUSTEREN: Jayne, looking from down in the south, where you're from, Florida, I mean what do you make of this investigation?
WEINTRAUB: What I make is that I think I see a lot of sloppiness from the police. I think I see a lot of focus that's on the sex scandals as opposed to...
VAN SUSTEREN: Well, let me stop you there. The sloppiness, I mean I -- you know, it -- there's a lot of criticism of the police but I mean I don't know -- I mean in my imagination, I can't think of what they're not doing. They were misled by the congressman, which may have sort of maybe slowed them down a little bit in terms of her state-of-mind and the days leading up to her disappearance. But what is this specific criticism that you have of the police?
WEINTRAUB: First of all, my specific criticism is that in view of the fact this man has cooperated completely in every way possible, a DNA sample, three interrogations, now they want a fourth...
VAN SUSTEREN: OK, let's stop right there. I got...
WEINTRAUB: ... submitting to searches...
VAN SUSTEREN: You're a good defense lawyer, Jayne, saying three interrogations. Maybe if he had had the first one and he had been forthright, there wouldn't be the three. I understand you're playing that card but not a strong hand on that one.
WEINTRAUB: Well, I still think that if he didn't want to talk about his indiscretion of sexual affairs, it does not make him a murderer. Greta, that's a big leap. And meanwhile his life...
VAN SUSTEREN: No.
WEINTRAUB: ... is potentially ruined.
VAN SUSTEREN: No, but if...
WEINTRAUB: They haven't even done an area canvass in his building to determine what kind of guy is he, what is he doing. All we're floating is the sex scandal. This is a homicide investigation. You're detracting from the very fact that we're trying to find this young lady.
VAN SUSTEREN: Alexia, you're shaking your head no.
WEINTRAUB: And they don't...
VAN SUSTEREN: Let me get to Alexia and I'll go back to you, Jayne.
Alexia, you want to respond to that?
MORRISON: Well, unfortunately the congressman, from the start, put himself in a position where his untruths, his failure to cooperate had to be investigated the police. He was not forthcoming in the first interview and apparently not in the second one from what we're told.
And so the police didn't then and probably still don't have a good feeling that they can close the door, that they know everything they need to know from him. And then he continues by asking another witness to lie. And then he continues by making what appears, at least on its face, to be a strange trip across a river to deposit a piece of trash that pretty clearly could have been deposited anywhere on this side of the river just before there is an investigation of his premises.
VAN SUSTEREN: Let me play devil's advocate with you on that though. I mean I don't think anyone truly thought, in the beginning, that when he said we were good friends and we had to call it off because she was moving to the West Coast. I mean you don't call off friendships when someone moves away. You end relationships, maybe. You can call friends on the phone. You can e-mail them. So shouldn't the police have been very suspicious of at least that line, No. 1. And No. 2, it's not so extraordinary to think that someone tries to cover up affairs. Everyone who gets involved in those things does try to cover it. It doesn't mean you're a murderer or a -- or caused someone to disappear.
MORRISON: But police pretty clearly were suspicious. They went back and asked to talk to him again and yet again. And as I understand it, they're now seeking a fourth opportunity to talk to him. So I think it's fair to say they probably were suspicious.
And with respect to, you know, covering up his affairs or his private life, there comes a point in time when the activity that he's engaged in exceeds a rational act of concealing private conduct. I mean as a congressman, he has to know, he has to know as do most grownups have to know that inviting someone to lie, telling them that they shouldn't cooperate with the police and forwarding to them a document for them to sign that contains lies that clearly will affect an investigation, is, No. 1, illegal and No. 2, indicates that he's still trying to cover things up and No. 3, it indicates a level of cavalierness about whether or not the police will actually get to the bottom of this quickly. And he keeps stringing out his own little thread of new things for the police to follow up on. VAN SUSTEREN: And...
WEINTRAUB: Boy, for somebody who's not a suspect, the focus surely is on him. Even from you, Alexia, he's obviously the only suspect that they've targeted. Yet, the FBI, this morning, I saw on an AP wire, said that they have not conducted a profile -- a psychological profile to see and determine what their theory is here. The FBI's theory is it's either she disappeared, she killed herself or she was indeed a victim after crime, which is why the cold case squad is called in.
VAN SUSTEREN: All right...
WEINTRAUB: But Greta, they have not determined what their theory is yet. Look at what was on her Web site, all the travel information. She just lost a job that she was vying for. This was a smart young lady who was being dumped by the job, being dumped by the man. You can't rule it out.
VAN SUSTEREN: All right...
WEINTRAUB: It's a hard time out there.
VAN SUSTEREN: We're going to take a quick break. When we come back, missing in America: a Modesto, California woman disappeared two years ago. She's not been heard of since -- or heard from since.
Today, her family speaks out.
(BEGIN VIDEO CLIP)
SUSAN LEVY: Just keep the prayers, the faith that we do have a place where justice will prevail and that my daughter could come home, back to us, alive if possible. And thank you for your support and your sensitivity.
ROBERT LEVY, CHANDRA LEVY'S FATHER: Thank you. And remember there's a lot of missing people out there and they need support and care and help finding their loved ones.
(END VIDEO CLIP)
(INTERRUPTED BY BREAKING NEWS)
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