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THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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REP. DAVID DREIER (R), CALIFORNIA: I am concerned with these developments that have continued to come out over the past few weeks. I suspect that the House Ethics Committee is looking at this whole situation. We have lawyers involved. There is a process through which we're going. But I will admit I find the situation very troubling.
REP. CHARLES RANGEL (D), NEW YORK: So far, nobody has charged the congressman with anything. It's in the Ethics Committee. If they decide that his conduct is such that he should have a reprimand or that he should be censured or that he should be excluded from the Congress, so far, nobody has given any evidence that any of these sanctions should be used.
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ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, Congressman Condit's facing heat on Capitol Hill, but could he also face scrutiny from the prosecutor's office? And why were prosecutors absent for a Condit meeting with a profiler? Plus, as the search for Chandra Levy nears cult status, has the ease of the Internet made the probe more cumbersome for investigators?
ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack.
COSSACK: Hello. Welcome to BURDEN OF PROOF. I'm in Los Angeles today. This is day 98 in the search for missing Washington intern Chandra Levy. New investigative leads are slim, however. According to "The Washington Post," authorities are discussing whether to consider obstruction of justice and witness tampering charges against Condit and his aides.
Such a case would be unusual, since investigators have said he's not a suspect in the case, which is still being considered a missing person's search.
Joining me today here in Los Angeles is criminal defense attorney Leonard Levine. From Washington, we're joined by former assistant U.S. attorney Amy Conway. Also in D.C. is Bill Ritchie, former chief of detectives with the Metropolitan Police Department. And giving us the latest in the Levy case is CNN national correspondent Bob Franken. Bob, what is the latest?
BOB FRANKEN, CNN NATIONAL CORRESPONDENT: The latest is there isn't. The D.C. police seem to be stymied in their investigation -- and I underline "seem to be," because, obviously, they wouldn't be telling us everything that they are doing. But thus far, all of the things that they have been doing have led to no result. Chandra Levy is missing, as you said, 98 days after she was last he accounted for, and the police are following just about every tip they can get, as we found out last week. Every obscure tip, even in hope that one of them that doesn't look like it is going to produce anything, does.
But for the moment the police are really scaling back things a little bit and stopping and trying to decide what they haven't done that they need to do.
COSSACK: Bob, the chief of the D.C. Police Department has said perhaps it's 50-50 that they will ever solve this case, and then he added, if perhaps even that high. Is there a sense, in your investigation, that the Washington Police Department are at the verge of just throwing their hands up?
FRANKEN: I think that would probably be overstating a little bit. I think they are extremely frustrated. I think they're surprised that, given the unusual intensity of this investigation, hasn't turned up something. But I think the actual figures are that something like 25 percent of missing person cases are never solved, so 50-50 would be beyond that a little bit, but the D.C. Police assure us they are not giving up on this; they are just going into a more long- range mode, as we have heard, cooperating with FBI on that.
COSSACK: We see that the FBI is becoming more active, Bob. Are they taking the lead role in this investigation?
FRANKEN: The Washington Police bristle when you ask that question. They emphasize they are the lead agency, that they have always had a connection with the FBI, number one, because it is an investigation that is national in scope, and number two, given the unique nature of District of Columbia, it is entirely a federal city, and the FBI has a seamless relationship with D.C. police anyway.
But the fact of the matter is is that the FBI has unit that specializes in this kind of investigation, so the FBI is actively involved.
COSSACK: Let's go to Bill Ritchie.
Bill, in your experience, you know we have heard reports, now that perhaps they are beginning to focus in a little more on Congressman Condit for the issues of obstruction of justice and perhaps witness tampering. Do you think there is any truth to that story that appeared in "The Washington Post"?
WILLIAM RITCHIE, FORMER D.C. CHIEF OF DETECTIVES: I would be suspect whether it is, in fact, true. First of all, you have to have a crime or the probable cause that a crime has been committed in order to look at obstruction or witness tampering. If the witness had given a false statement to the police department, that crime is prosecuted by the Corporation Counsel's Office the local prosecutors, instead of U.S. Attorney's Office. So I don't see how they can go forward with a viable investigation without any evidence that a crime is being committed.
COSSACK: Amy, the notion of whether a crime has been committed -- does that center around whether or not they call this a missing person's case or they call this something worse -- perhaps, you know, a murder or something worse?
AMY CONWAY, FORMER ASSISTANT U.S. ATTORNEY IN D.C.: I don't really think so. I think that it doesn't matter whether it is classified as obstruction of justice or as a potential homicide case. I think they will probably going to look at it both ways. I think the U.S. Attorney's Office is going to take a look at this case and determine whether or not they should pursue any charges.
I think it is smart that they do that, although I think that my panelists will disagree with me. I think that they need to take a look at it. They need to find out whether or not there are any potential charges there, and if there aren't, they should just move on.
COSSACK: Lenny, in terms of having the ability to bring charges in this case, the alleged facts are that Congressman Condit was not forthcoming initially, and then allegedly told Anna Marie Smith, a flight attendant that he was allegedly involved with, that perhaps she didn't have to speak with officers, and speak with FBI. Is this the kind of thing that is obstruction of justice?
LEONARD LEVINE, CRIMINAL DEFENSE ATTORNEY: Not without more, I think, in this case. Obviously, there is also a fine line that investigators and defense attorneys walk when you are talking to potential witnesses. You can tell them you don't have to speak or answer any questions unless you are subpoenaed -- that is up to you -- if you start telling them to lie or submit false affidavits, certainly, that is that something they have to look at.
But the question is was it material to the investigation. Was there even an investigation into a criminal act, as the ex-officer has said? Of course, Mr. Condit has denied telling Anne Marie Smith to lie or submit a false affidavit. So you just have his word against hers.
I think at this point they are still focusing, obviously, on Miss Levy's disappearance, and until they solve that aspect of it, I would doubt very much that they would turn it into a criminal investigation of Mr. Condit relating to his affairs or alleged affairs. It is still not a crime to be stupid; he was stupid about the situation. He probably should have come forward much earlier; there would have been no investigation. But a criminal offense I just don't see it at this time, Roger.
COSSACK: Amy, the Washington D.C. grand jury that has been utilized early on in this case, to get phone records and subpoena those kinds of records. Is that the kind of grand jury that would be used if there were further investigation, to find out whether or not there was obstruction of justice?
CONWAY: That would be the same grand jury that they would use, although the grand jury only sits in D.C. for a certain period of time. So they might have to start up with another grand jury if that grand jury expired.
Using subpoenas to get phone records and other types of records is not very difficult, and it is not something that is necessarily going to require substantial witness testimony in the grand jury; typically, it doesn't. So the fact that they have used this grand jury already doesn't necessarily mean that there is a full blown grand jury investigation or they are actively putting witnesses into grand jury to take testimony about potential obstruction.
COSSACK: Let's take a break.
She was supposedly spotted in a restaurant on the other side of the world, but another tipster said she was in a mansion just miles away. These are just two of the thousands of clues that detectives have received in their search for Chandra Levy. So how do investigators determine which tips are worth pursuing?
Don't go away.
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For the first time, women applicants to American law schools outnumber men. 50.2 percent of this year's applicants are women (Source: "JD Jungle").
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COSSACK: Since Chandra Levy's disappearance more than three months ago, D.C. police have received thousands of tips on the whereabouts of the former intern. They come in via phone, fax, U.S. mail and e-mail. So how do investigators know which tips are worth pursuing? And which tips will lead them on a wild goose chase?
Bill, come on! How do the investigators figure out which tips to follow, which tips don't follow?
RITCHIE: Well, obviously you have to have an investigative plan and you have to sort through the tips as they come in. I'm sure that they've received information from psychics. When I was a commander of homicide years ago, I had psychics calling me that a body is here or there, or so forth.
You can't -- you cannot discount any of the information. You go through a process of establishing some priorities, but eventually you have to check out all of them because you don't know which one will be the key, to in further solving the investigation. COSSACK: Bill, is there a way that you almost segment these tips? For example, we know now that tips come in via the Internet, fax -- different ways than perhaps happened just a short trial ago. Is there a way that you put them into different categories?
RITCHIE: Obviously, you have to use your instincts, what you know about the investigation to date to see whether it possibly could fit, or whether it is just so outlandish that it just does not make any sense. So it's a matter of going through all the information and prioritizing as best you can. All of the information should go into a central desk -- all your statements, everything -- should go into a central point, so that the left hand knows what right hand is doing.
COSSACK: Bob Franken, we of course saw what happened the last couple weeks. The police were out searching all the parks. Is there any information that you may have that the police are ready to be in searching other places in Washington?
FRANKEN: Well, what they've decided to do at the moment is to decide that they've covered just about all the areas that they wanted to cover when they conducted the search of the parks. But they make it clear they didn't overturn every leaf and every park. There are thousands of acres that would have to be covered.
What they did was they used the premise that if some foul play had come to Chandra Levy, her body would be dragged somewhere off a foot path or something like that, and left nearby. So they searched near those foot paths. If they found that they got another tip, that perhaps she had been taken deeper in the woods, they might for the first time go deeper in the woods. But it's going to rely on some sort of tip, and of course that's the pessimistic scenario. There is a positive one, also, that they would like to find that she is in hiding somewhere. They've put out, as you know, the pictures of how she might look in disguise, so they're really following two tracks
COSSACK: Leonard, what does it mean, as a defense lawyer, in terms of having to defend your client when in fact a lot of anonymous tips may come in that perhaps give -- do not help your client but are very difficult to investigate?
LEVINE: Well, obviously most of these tips you have to leave to law enforcement to investigate. I mean, all you can do is what his attorneys have done to date, which is to say that he denies any wrongdoing, he's come forward now, albeit late, in the investigation, told everything he knows, he had nothing with her disappearance. He took a polygraph test by a respected ex-law enforcement officer. Obviously he didn't answer all the questions the police might have asked him, and that may get back to the obstruction of justice issue. Maybe he doesn't want to answer questions about Anne Marie Smith and what he told her or didn't tell her.
But sure, when you have a high profile case, it is helpful in some respects because you have a lot of people out there looking for Miss Levy -- and hopefully she'll be found alive -- but you're also then have a lot of kooks and a lot scenarios that you have to keep disputing and keep denying. And it makes it quite difficult for Mr. Condit, but let's be honest. He made his bed and now has to live in it. Had he come forward initially and told everything he knows, he probably would not be in the difficult situation he is in today.
COSSACK: Amy, as a prosecutor, you have to deal oftentimes with people who give you tips, and then you have to come in there and try and figure out whether or not those tips are true, corroborate them, and then stand up for the person who gave you the tips. What do you do?
CONWAY: Actually, we don't have a lot of contact with the tipsters, unless they become a cooperating witness that we then meet with and they're in a position of possibly testifying. I mean, tips are helpful hints. There is really not a lot that you can do with the tip itself unless it leads to admissible evidence or witnesses who will testify later on if there is some type of trial.
So, you look at whatever tips you get. Typically, by time I got the case, there was a target of the investigation, you had witnesses that were going to be talking about the tip and you had much more information corroborated at that point.
COSSACK: Bill, is it sometimes difficult dealing with tipsters, you know, that come and just seem to give you information, and yet you check them out and you have to somehow stand up behind them and verify them?
RITCHIE: Well, unfortunately, they have to go through all the tips. But I have seen in the past where that tip that seems so insignificant actually ends up being the key to the investigation.
One of the other things you may have going on now because of the reward money, people may be guessing, and putting their guess on the Internet as tips, hoping that they may get lucky.
COSSACK: So you have to go ahead and sort those out besides.
COSSACK: Now, Bill, it was reported that during his last meeting with the FBI, the FBI agent was trying to establish a profile with Congressman Condit, and in all other meetings the prosecutors were allowed to stay in the room. In this meeting, they asked the prosecutors not to be in the room when the FBI agent was speaking with Condit regarding a profile. Why would they go about doing that? Is it for easier access?
RITCHIE: Well, I don't think it's really significant, because if you have the U.S. attorney involved in the case they're going to be privy to the information anyhow. And as to the profiling, obviously, the FBI has been very successful in profiling individuals in the past, and they are looking for that one piece of information, that may have some investigative significance.
COSSACK: Amy, it seems like the authorities are going out of their way to continue to say that Congressman Condit isn't a suspect in this case, but yet it seems like, you know, his name is always the one that surfaces. Is there a reason that the prosecutor would want to just continue to say what they're saying?
CONWAY: I think at this point, nobody can deny that Gary Condit is at the center of the investigation of I guess the missing person at this point. Gary Condit was the person who was closest to Chandra Levy while she was in Washington, D.C. There was a lot going on in their relationship, from what we understand, at the time she disappeared. And, so he is going to play a significant role in the investigation into her disappearance.
I don't think whether they call him a suspect or not is really the point. The point is, is that he is going to be the center of the investigation itself because he was so -- his life was so intimately intertwined with Chandra Levy's. And he may be the key to locate the person. If he's not the person himself, to locate the person who had some involvement in her disappearance.
COSSACK: All right, let's take a break.
Congress is out for summer recess and Representative Condit is back home on his home turf. So what's the mood in Condit country? Let's find out when we come back. Stay with us.
COSSACK: Congressman Condit returned to his home in Ceres, California, last week. Tonight, his supporters are planning to hold a rally to show they are behind their Congressman. So joining us to tell us what's going on outside Gary Condit's office in Modesto, California is CNN's Gary Tuchman.
Gary, thank you for joining us. You are at Congressman Condit's office. What's going on? Are there people outside, are they expecting anybody today or what?
GARY TUCHMAN, CNN CORRESPONDENT: There are people inside working, there are news media members outside, but nothing else happening. But very important to tell you, no Congressman Condit. He did fly to California on Friday, he flew to San Francisco International Airport. While the passengers got off the jet way into the terminal, Congressman Condit was led to the tarmac to a waiting car. and that's the absolute last we have seen of the congressman. He hasn't come to his office, he hasn't gone to his house. And right now we believe he is in seclusion, possibly with his family. But we have not seen the congressman since he came back from northern California.
COSSACK: So, Gary, there are no people outside of his office. What about his home? Have there been demonstrations?
TUCHMAN: We've seen an interesting phenomenon at his home. We have been on the block where he lives waiting for him to come home, hoping that he makes a statement to the news media. But the people there are very supportive of their congressman and their neighbor, and what they've been doing over the last couple of days is taking their cars, their vans and their motor homes and parking them on the side of this very quiet suburban street to block the house from the view of the television cameras. The people there, many of them blame the news media. They say that Gary Condit is a good man, that he's being kicked while he's down and that this is the news media's fault that he's gotten such bad reputation over the past three months. So they're doing whatever they can to protect his privacy.
COSSACK: Now, is there going to be some -- a rally this evening for Congressman Condit?
TUCHMAN: Tonight, in the town of Turlock, California, at a local civic center, several ethnic groups are holding a rally. They expect hundreds of people there. They say they will have eight speakers who have been helped by Congressman Condit speak. They will have colors, they will have a minister offer a prayer and they say it will be a big rally.
They do point out that Congressman Condit hasn't been invited, but many of them tell us they would love if he shows up. But we don't know about that.
COSSACK: How many people -- what's the general feeling there, Gary? You've been there for a while. What's the feeling? Are there people more for Congressman Condit? I mean, this was Condit country before all of this happened, and he was elected and reelected and the people really like him. Do you feel that that support is now wasting away?
TUCHMAN: Let me tell you what we see from almost everyone we talk to, whether they're very strong Condit supporters or whether they haven't voted for him before -- they're disappointed, but they want to hear what he has to say. And every day that goes by where he doesn't expect to the public erodes some of his support.
What many people are saying, who are very strong Condit supporters, is, listen, it's now the August recess. He's come home to talk to his family. We expect after he settles this with his family he will tell us what's going on. So if this goes another week or two or three weeks without him saying anything, you can be assured that he'll erode a lot of support that he has right now.
COSSACK: Leonard Levine, this is always the ultimately nightmare question for a defense attorney, because you have to balance what he has to do politically with what your advice may be to him legally. How do you do that?
LEVINE: Well, first you have to determine whether or not he has done anything wrong. And that's is difficult. He's taken a polygraph, he's passed it, about having nothing to do with Chandra Levy's disappearance. If he has done nothing wrong with Anne Marie Smith and that whole issue of obstruction of justice, then my advice would be get out there, tell everything you know, let the public know what's going on.
But if there is something there that he's about or his attorney is concerned about, that's his primary goal, is to protect his client from criminal prosecution. And if that's the advice you give him, you hope he follows it. Hopefully that's not the case, he's done nothing wrong and he'll come forward. If not, that's your primary goal, is to protect him from criminal prosecution.
COSSACK: But Leonard, how do you ever know? I mean, how do you know the answer to that question? I mean, I suppose one answer would be, well, you rely on your client and if your client tells you he didn't have anything do with it then you go ahead and give him that kind of advice. I can only tell that if Greta was hear she would laugh at that statement about relying on your client.
LEVINE: Well, no, I agree. And normally, if this was not Gary Condit, congressman, your advice would be the same throughout: Keep your mouth shut, let them do the investigation, let them find out what's going on. But he does have a political career here to be concerned about. And if he tells you he has done nothing wrong, you say to him, if that is the 100-percent truth and you want to get out there and say it, then say it. But understand something: if you're lying to me, or if you've held anything back, it's your neck that's on the line, not mine.
COSSACK: Would you let him appear in this kind of a forum? "I'm holding an open forum this evening for all of my constituents. Everyone who wants to come and ask me whatever questions you want to ask me, I have nothing to hide. Come on in, I will answer all these questions."
Would you let him do that?
LEVINE: I would prefer to do that after they've solved, obviously, the Chandra Levy case. While that case is still pending, that is very difficult. In the public's mind he will remain a suspect in her disappearance until that case is solved. And it doesn't matter what I say or you say or the police say, he'll be suspect in the public's mind. Once they solve that, let him say anything he wants.
At this point, perhaps just a prepared statement in front of the news media. "Here's what happened, here's what I did. I did nothing wrong concerning her," and leave it go at that. I don't think you want a far ranging news conference.
COSSACK: Amy, if Congressman Condit decided to have a far- reaching news conference and answer all questions, do you think the authorities would be there to ask him a few questions?
CONWAY: I don't know if they'd be there to ask him a few questions, but I think they'd certainly be listening. There would be a tape of the news conference and they would pick apart every word he used to see if it was inconsistent with any of the other statements that he had previously given.
I agree that if I was his attorney at this point, I would hold off and tell him to lay low for a while, wait and see what happens with the Chandra Levy case. He's got over a year before his election comes up and I think he's smarter to wait.
COSSACK: All right. I'm afraid that's all the time we have for today. Thanks to our guests and thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. I'll see you then, bye-bye.
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