Suspect or not?

With no evidence of his involvement, the D.C. police have been stymied in their questioning of Rep. Gary Condit -- and careful not to repeat recent mistakes.

Published July 11, 2001 8:51AM (EDT)

"The congressman was not a suspect before the meeting, he was not a suspect during the meeting and he is not a suspect since the meeting," Executive Assistant D.C. Police Chief Terrance Gainer said Saturday night about Rep. Gary Condit, D-Calif. But then on Tuesday afternoon, Gainer's boss, D.C. Police Chief Charles Ramsey, announced that the police force would be scouring Condit's apartment, subjecting him to a polygraph test and obtaining a DNA sample from him.

"We would look for any evidence that might lead to helping us understand what happened to Chandra Levy," Ramsey said. "He's offered the search of his apartment and we're going to take him up on that."

Pretty intrusive stuff for someone who's "not a suspect." So what gives? The disconnect comes from the semantics of police work.

"This is a missing persons case, and we don't have suspects in missing persons cases," says Sgt. Joe Gentile, public information officer for the D.C. Police. "There's no evidence to make a criminal case," says Gentile. Chandra Levy was last seen in public on April 30, last heard from in an e-mail on May 1. But her Dupont Circle apartment has no evidence of any criminal activity having taken place. Thus: this is, as of now, just a missing person's case. And thus: there can be no "suspects."

Which is not to say that D.C. Police aren't suspicious of Condit, who denied having an intimate relationship with Levy for weeks, until his third meeting with police last Friday. "Clearly something has happened to the girl," says former homicide investigator Sgt. Gerald "G.G." Neal, chairman of the D.C. chapter of the Fraternal Order of Police. "You have to look at who she last had contact with, and who was in a position to hurt her."

Being that Condit seems to fit that general description, why then haven't D.C. Police searched Condit's Adams Morgan apartment until this week? Again comes the significance of language. "You have to have probable cause to get a warrant to go into a person's place to search it," says Gentile. "A judge is not going to sign off on a warrant if there isn't probable cause. This is the United States of America; you can't just enter someone's home and conduct a search."

And there certainly isn't probable cause in a case where no evidence of a crime exists. "There's a definition of probable cause as it relates to the seizure of evidence and search warrants," says a former D.C. Police sergeant. "It's 'a set of facts, circumstances and other reliable information that would lead a reasonable, prudent, and cautious police officer to believe that a crime has been committed and that evidence related to that crime is in a specific location.'" Under this standard, the former cop says, however "fishy" Condit's behavior has been, the D.C. Police have had no right to demand anything from him that he won't give voluntarily -- whether information or search warrants.

Now, however, Ramsey is getting from Condit voluntarily what he couldn't get by force. "I think it's time that once and for all we find out exactly where we are with this case," Ramsey said at an impromptu press conference on Tuesday afternoon. "We have information that's been dribbling in, in bits and pieces, under a period of time."

But if Condit isn't a suspect, what are the police going to ask him under polygraph? "The exact nature of the relationship, any information he might have around state of mind, any locations where he feels she might want to go -- I mean there are just numerous questions that have been asked, but again we need to get some kind of clarity around this and since the offer was so generously made," the police are going to seek answers to these questions under polygraph.

One might observe that you don't need to strap wires to a guy to ask him these questions -- which is the point. Of course the police are suspicious of Condit, and of course they think that he might be able to provide them with information about Levy's whereabouts. But they can't come out and say that. They have to express gratitude for Condit's "generous" offer, and underline that Condit doesn't meet this extremely narrow but legally significant definition of a "suspect."

For the D.C. Police, the case of Thomas Minch looms large in the Levy investigation. Under immense pressure to find the killer of Eric Plunkett, a student at Gallaudet University, a college for the deaf, D.C. Police arrested Minch, a freshman and classmate of Plunkett's. Charged with second degree murder, Minch was freed one day later and charges were dropped, though he was not permitted to return to campus. In February 2001, another Gallaudet student, Benjamin Varner, was found murdered. Joseph Mafnas Mesa Jr. -- who lived across the hall from Plunkett, and had been using his bank card in the weeks after Plunkett's murder -- soon turned himself in and confessed to both murders, according to D.C. Police officials. Only then was Thomas Minch exonerated.

"I suspect Mr. Minch believes he is owed an apology," Gainer said at the time. "But I think our officers made a reasonable judgment." In May, Minch sued D.C. Police for $2 million.

Nobody in the department wants another Minch case on their hands -- especially not one who also happens to be a member of Congress. So D.C. Police officials are treading cautiously. Without evidence of any crime, the most D.C. Police officials can do is try to use the pressure of the media and the U.S. Attorney's office to encourage Condit to be as forthcoming as possible. The moment D.C. Police describe the Levy matter as a homicide investigation, however, the likelihood of cooperation by any potential suspect drops significantly.

"At the point that he becomes a target you have to give him a target investigation warning," says Neal. "They don't want that to happen. They want him to tell them as much information as possible."

The Levys and their attorney, Billy Martin, have been all over TV berating Condit for not being more forthcoming. "He lied," Martin said on CNN's Larry King Live Monday night. "He misrepresented their relationship. Getting information from Congressman Condit is like pulling teeth."

But investigators are slowly turning up the heat. Last week, according to Newsweek, the woman assigned to investigate the disappearance of Chandra Levy, Heidi Pasichow -- one of Washington's six community prosecutors at the U.S. Attorney's Office -- asked a sitting grand jury to allow a subpoena of Condit's phone and other records . This week, Pasichow called for American Airlines flight attendant, Anne Marie Smith, to come to Washington to meet with her and her team on Wednesday. Smith, who claims to have had a 10-month affair with Condit, will be detailing for Pasichow a number of matters, including her claim that Condit encouraged her to lie about their relationship in an affidavit, which he has denied.

Implicit in Smith's trip is the idea that Pasichow is at least considering an obstruction of justice charge against Condit. Few take the idea of an "obstruction of justice" charge against Condit very seriously -- the letter from Condit's attorney to Smith's was clearly a work in progress to be edited as appropriate -- but it's part of the pressure-cooker campaign.

And while to many it may have strained, somewhat, the bounds of credulity, the interview that Smith's attorney gave Fox News Channel's Paula Zahn Monday night -- in which she alleged that Condit held sicko fantasies that caused her to fear for her well-being -- assuredly influenced his decision to try to get this all over with as soon as possible by giving cops whatever they want.

Then Monday the ante was upped. The Levys asked for Condit to undergo a polygraph test. Gnashing his teeth at reporters, Condit's attorney, Abbe Lowell, responded by promising a broad participation -- which the police jumped on. Still, they kept their poker face.

Condit is, after all, not a suspect. He is in fact the most prominent non-suspect in the most notorious non-crime that anyone's seen in a long, long time.

By Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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