GARY CONDIT AND THE FIFTH AMENDMENT: Why He Cannot Invoke It And How It Can Be Used Against Him

By JULIE HILDEN


julhil@aol.com
----
Thursday, Jul. 26, 2001

Congressman Gary Condit has the right to remain silent. Or does he? Anything Condit says can be used against him. You're telling me.

Even more seriously, Condit's taking the Fifth before a grand jury, or simply refusing to speak to police, would probably also irrevocably restyle Chandra Levy's "disappearance" as a murder, and shift the police's focus exclusively onto Condit — where it has (somewhat mysteriously) failed to rest so far.

In sum, Condit lacks the Fifth Amendment protections that the rest of us enjoy. Police might have used this fact to play serious hardball with Condit — who is extremely unusual among potential criminal suspects in that, for practical purposes, he must speak to the police. Oddly, however, police statements on the case seem to suggest that softball, instead, has been the game of the day.

How can the police's softball tactics be explained? And is the limbo-like position in which Condit has been placed an unfair one or simply his just desserts?

No Crime and No Suspect?

Police reportedly are still insisting that Levy's disappearance is a missing persons case, not a crime. At least from an outside perspective, this claim seems ludicrous, unless there are some very significant facts beyond those reported so far.

The police have reportedly ruled out suicide — on the ground that if Levy had killed herself, she could not hide her own body, and her remains therefore would have been found by now. So Levy is either in hiding (which, given what we know of her and given the pain her disappearance has caused her family, is highly unlikely) or has been murdered, killed accidentally, or abducted.

In short, to say there is no crime here defies common sense. It is overwhelmingly likely that a crime has been committed. While a body can be evidence of a crime, it is not, of course, the only type of evidence of crime — and here, circumstantial evidence that a crime was committed abounds.

Moreover, to say, as the police have, that Condit — who, according to a police source, admits to having been Levy's lover; reportedly had disagreements with her about the relationship; and appears to have initially lied to the police about the relationship — is not a suspect in her disappearance and potential murder defies common sense, as well.

This apparent police obtuseness may have its costs — and one of them may be the failure to exploit Condit's Fifth-Amendment-stripped position.

Yet perhaps the police do realize their advantage, and are taking advantage of it more subtly. Multiple interviews make it more likely that Condit will contradict himself or, if he did commit a crime, betray himself. Claiming Condit is not a suspect could induce in him a false sense of security, and convince him to cooperate more fully. Finally, claiming there may not even be a crime may lead Condit to hope that, if Levy's body is never found, the entire incident may simply blow over — leaving not even an "unsolved crime" file, since it was never deemed a crime in the first place.

Moreover, Condit's partial cooperation has already led to a number of potential obstruction of justice charges that the police can now use as leverage against him. And that leverage exists, even despite the fact that the conduct at issue does not seem to implicate Condit in Levy's disappearance. Reportedly, Condit urged Anne Marie Smith, a flight attendant, to claim they had not had an affair, and even to sign an affidavit to that effect. In addition, police say Condit recently discarded a watchcase belonging to yet a third paramour just before the police (with his consent) searched his apartment. These acts, if they occurred, are those of an adulterer — but certainly not necessarily those of a murderer.

The possibility that these obstruction of justice charges could be brought against Condit, even without an accompanying murder charge, probably ensures that Condit will have to sit for as many interviews as the police want to conduct with him, on whatever subjects they would like to raise.

Thus, regardless of whether the police have consciously pressed their advantage with Condit, there can be little question that over time, their advantage has continued to grow.

The Need for a Hardball Approach

A cynic, however, might view the fact that police have thrice interviewed Condit — with a fourth interview to come — as evidence that that initial interview with Condit was not sufficiently hard-hitting, or that police did not work hard enough to verify Condit's claims after the interviews had been conducted.

According to the tabloids (which often report cases like these more thoroughly than mainstream papers), it took an interview with Anne Marie Smith to prompt police to interrogate Condit further. Reportedly, Smith provided detailed information suggesting Condit had been deceptive, or at least not forthcoming, with police. According to news accounts, Smith revealed, for example, the existence of a red Ford Fiesta Condit used for transportation — a fact that he apparently failed to mention to police.

But what if Smith had not come forward — feeling she was safer in hiding, or safer claiming she and Condit never had an affair? The police's initial interview with Condit, by itself, should have been probing enough to allow the police to double check his veracity. Discrepancies in the "schedule" Condit released soon after Levy disappeared probably should have been discovered earlier, too.

Would Playing Hardball with Condit Be Fair?

Putting aside the question of whether the police have been smart or stupid in their dealings with Condit, their position of negotiating with him in the shadow of the Fifth Amendment raises an interesting question: Is it fair for the police to exploit Condit's practical inability to avail himself of a constitutional right?

One might respond that Condit's interrogations show why we have the Fifth Amendment in the first place. By speaking with and cooperating with police, Condit has managed to get himself into a mess of collateral trouble — with the potential obstruction of justice charges and his reported lies to the police.

Put bluntly, if Condit had kept silent, all of this might not have happened, and even if he is entirely innocent of any bad conduct relating to Levy's disappearance, his professional reputation and his personal life have already been hurt — probably irrevocably — by these revelations. Doesn't that show the importance of the Fifth Amendment? And doesn't it suggest, too, that interrogation of Condit, in light of his practical inability to take the Fifth, may have been unfair?

Not necessarily. Condit's predicament can just as easily be blamed on the fact that he still retains Fifth Amendment rights as a last-ditch alternative, as on the fact that, for professional reasons, he cannot use this alternative right now.

An Alternative to the Fifth Amendment

Suppose that, rather than having the Fifth Amendment, we amended the Constitution to substitute a rule under which witnesses, suspects, and even defendants could be deposed under oath just once, with a lawyer present — and that good cause would have to be shown for future depositions. That system — which is more or less the rule in civil cases — might have protected Gary Condit better than the current cat-and-mouse game in which he is entrenched.

Under that hypothetical system, an innocent Condit might not have run the risk of being trapped in inconsistencies, or being faulted for failing to volunteer embarrassing information. And a guilty Condit would have been forced to say his piece and give his account of events, but only on one controlled occasion — with his right to an attorney carefully preserved and no more sense of coercion or threat than in a civil deposition.


Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law, and worked on criminal appeals, as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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