By Keith L. Alexander and Scott Higham
Washington Post Staff Writers
Monday, October 25, 2010; 6:05 PM
Cold cases are often the most difficult for prosecutors to win. The nine-year-old case of who killed Chandra Levy provides an even more daunting challenge because of errors made by police early in the investigation, observers and lawyers on both sides say.
After a week of jury selection in the high-profile case, opening statements are scheduled to begin Monday. Prosecutors and attorneys for Ingmar Guandique, the man accused of killing Levy, will lay out their theories.
A court-imposed gag order prevents the lawyers from talking about the case. But both sides' strategies have become known over the course of pretrial hearings and court filings, and it's clear that those early law enforcement mistakes will play a prominent role as the trial unfolds in D.C. Superior Court.
Those errors have left prosecutors with virtually no forensic or physical evidence against Guandique, an undocumented immigrant and gang member from El Salvador.
Police failed to secure security camera footage from Levy's apartment building in the days after the 24-year-old former federal intern disappeared May 1, 2001.
Detectives initially focused on one suspect, Levy's married lover and congressman, Gary A. Condit (D-Calif.), for two months and failed to broaden their investigation.
Police also failed to notice that Guandique was attacking female joggers in Rock Creek Park about the time Levy disappeared. And although police searched for Levy's body in the park in the weeks after she disappeared, her remains weren't discovered until a year later, after valuable evidence was gone.
As a result, there's no DNA, no eyewitnesses, no murder weapon.
The lead prosecutor, Assistant U.S. Attorney Amanda Haines, said those mistakes continue to plague the case. During a recent pretrial hearing, she told Judge Gerald I. Fisher that she expects Guandique's defense lawyers to call the initial police investigation "shoddy."
"Clearly, the defense is going to prove that over and over," Haines said.
Guandique, 29, was charged last year with six counts, including first-degree murder, kidnapping and sexual abuse, in connection with Levy's slaying.
Despite any early errors, prosecutors think they have a winning case, largely because of Guandique's former cellmates. Prosecutors said Guandique, who was serving a 10-year sentence in a California prison for assaulting two female joggers in Rock Creek Park in 2001, told cellmates that he raped and killed Levy.
Authorities said they found a magazine picture of Levy in his cell.
David Schertler, a defense lawyer and former head of the homicide unit of the District's U.S. attorney's office, said prosecutors have to convince the jury that this investigation is different from the original - with different detectives and investigators who uncovered new leads and put together a solid criminal case.
But prosecutors have to overcome more than the police errors. In 2002, before he was sentenced for attacking the two women in Rock Creek Park, Guandique took a polygraph test. He said "no" when asked whether he knew anything about Levy's disappearance. The examiner who administered the test said Guandique was not being deceptive.
Although the results of the lie-detector test will not be admitted at trial, what happened next could be. During a hearing after the polygraph, the lead prosecutor on Guandique's assault case, Assistant U.S. Attorney Kristina Ament, told Judge Noel Anketell Kramer that there was "no suggestion" that Guandique was involved in the Levy case.
Kramer, now on the D.C. Court of Appeals, agreed. "I never for a moment thought . . . he had anything to do with Chandra Levy."
Still, prosecutors have powerful witnesses: the two women he was convicted of attacking in the park.
Both are listed as potential trial witnesses and might testify about how Guandique, on separate occasions, knocked them to the ground as they were jogging in the park and and how they tried to escape.
Prosecutors fought to have Guandique's past acts admitted at trial, saying they prove a pattern. Such acts are often prosecutors' best evidence. But Guandique's attorneys said there was no connection between the two women whom Guandique admitted assaulting in the park and Levy's slaying. But Fisher is allowing the testimony.
"It strikes me as a stretch and a very dangerous stretch to make," said Hamilton Fox, a Washington area defense lawyer.
Observers said they expect new details to emerge during the month-long trial. In earlier hearings, defense attorneys Santha Sonenberg and Maria Hawilo have suggested several scenarios that run counter to the prosecution's theory of what happened.
For example, the defense lawyers aren't convinced that Levy was killed in the park and suggest that her body might have been dumped there. They also don't think she was alone May 1, 2001, when she left her Dupont Circle apartment and disappeared.
Prosecutors have said that Condit, now 62, may take the witness stand and provide his first public statements about the extent of his relationship with Levy. He has hired a California lawyer.
Throughout the trial, observers expect a battle between prosecutors and the defense. At a recent bench conference, Fisher scolded both sides for waiting until days before the trial to file 30- and 40-page motions requesting records and subpoenas for additional witnesses.
Fisher called the lawyers' actions a "waste of time" and said the filings were submitted to "maintain each side's tactical advantage."
"This full-time effort to show that you can be tougher than the other side and file more than the other side is going to end."