<center><font size="1" color="#ff0000">LAST EDITED ON Jul-30-02 AT 09:10 AM (EST)</font></center><p>CASE NUMBER 02-12642-DD<BR>_____________________________________________________________<P>IN THE UNITED STATES COURT OF APPEALS<BR>FOR THE ELEVENTH CIRCUIT<P>Case Number 02-12642-DD<P>LINDA HOFFMANN-PUGH<P> Plaintiff-Appellant,<P>vs.<P>PATRICIA RAMSEY &<BR>JOHN RAMSEY,<P>Defendants-Appellees.<P><BR>On Appeal from the United States District Court<BR>Northern District of Georgia<BR>Atlanta Division<P>The Honorable Thomas W. Thrash<BR>District Judge<P>D.C. No. 01-CV-0630<P><BR>APPELLANT'S REPLY BRIEF<P><P>Darnay Hoffman<BR> Attorney for Appellant<BR> 210 West 70th Street<BR> New York, NY 10023<BR> (212) 712-2766<BR>TABLE OF CONTENTS<P><P><P><BR>TABLE OF CONTENTS…………………………………………………….i<P>TABLE OF CITATIONS………………………..…………………………..ii<P>ARGUMENT AND CITATION OF AUTHORITY………………….…….1<P>1. A "Reasonable Reader" Could Find That the Ramseys'<BR> Book Defamed Linda Hoffmann-Pugh……………….……1<BR> <BR>2. The Ramseys Misconstrue Inapposite Case Law and<BR> Judge Carnes' Ruling, While Mischaracterizing<BR> the Appellant's Case……..…...……………………………9<P>CERTIFICATE OF COMPLIANCE<P>CERTIFICATE OF SERVICE<P><P><P><P><P><P><P><P><BR>i.<BR>TABLE OF CITATIONS<P><BR>CASES<P><BR>Beck v. Deloitte & Touche, <P>144 F.3d 732, 735-36 (11th Cir. 1998)………………………..………8<P>Conley v. Gibson, <BR>355 U.S. 69 (1957)…………………………………………………....9<BR>Eidson v. Berry, <BR> 415 S.E. 2d 16 (1992)…………………………………………..13, 14<BR>Forsher v. Bugliosi, <P>26 Cal.3d 792 (1980)…………………………………….............….12<P>Harcrow v. Struhar, <P>235 Ga. App. 403 (1999)…………………………………..…4, 12, 14<P>Hishon v. King & Spalding, <BR>467 U.S. 69, 73 (1984)………………………………………………. 9 <BR>H.J. Inc. v. Northwestern Bell Tel. Co., <BR>492 U.S. 229, 249-250 (1989)……………………………………..….9<BR>Mead v. True Citizen, Inc., <BR>203 Ga. App. 361, 362 (1992)………………………………………10<BR>ii.<BR>Nix v. Cox Enterprises, Inc.,<BR> 247 Ga. App. 689 (2001)………………………………….…….14, 15<BR>Scheuer v. Rhodes,<BR>416 U.S. 232, 236 (1974)……………………………………………..9 <BR>Wolf v. Ramsey,<BR> (00-CV-1187)…………………………………………..11, 12, 13, 14<P>STATUTES <BR>O.C.G.A. § 16-12-4………………………………………..……….…..13, 14<P><P><P><P><P><BR>iii.<BR>ARGUMENT AND CITATION OF AUTHORITY<P><BR>1. A "Reasonable Reader" Could Find That the Ramseys' Book Defamed Linda Hoffmann-Pugh<P>The appelles mistakenly argue, as does the District Court, that the<BR>Ramseys' book does not defame Linda Hoffmann-Pugh, or that a jury could not find a defamatory meaning as a matter of law. They also incorrectly assert that no "reasonable reader" would be left with the impression that the Ramseys implicate Linda Hoffmann-Pugh in the kidnapping/murder of their daughter JonBenet by reading their book The Death of Innocence. <BR>An excellent example of why the Ramseys and the District Court are mistaken can be found on page 19 of the paperback edition of the Ramseys' The Death of Innocence (DOI), which both the District Court and the Ramseys ignore in their discussion of the Book. This neglected passage is the Ramseys' narration of events immediately preceding their libelous remarks concerning Linda Hoffmann-Pugh:<BR>The police want to know if I know of anyone who would do this . Linda Arndt asks if there is anybody who might be upset with me - personally or workwise? Anybody who has threatened me? (DOI p. 19)<P>Two paragraphs later the Ramseys answer this police question with the <P>following:<P>The police ask Patsy these same questions about who might have been angry or acting strangely, and she begins to think about our cleaning lady (DOI p. 19)<P>The implication of this passage should be obvious to even the most obtuse reader (let alone the "reasonable reader.") And the implication is this: in answer to a police question concerning likely kidnapping suspects, Linda Hoffmann-Pugh is the first person who Patsy Ramsey thinks of as a prime candidate, and she is her only named suspect. There is nothing ambiguous about the statements Patsy Ramsey makes about Linda Hoffmann-Pugh. Clearly, she is suggesting that the housekeeper committed the crime.<BR>If there is any doubt about the meaning of Patsy Ramsey's statements (and there isn't), the reader has only to look at the police reaction to this information as eloquent proof of Patsy's meaning. And what, exactly, is it that the police do? They immediately arrange to have neighboring police rush off to investigate Linda Hoffmann-Pugh. And what do the Ramseys do? They make sure to include the police reaction in their book:<BR>The police tell us they will arrange for the Ft. Lupton police to drive by Linda's house to see if they notice anything unusual, but they don't want to alert anyone there that they are being watched.<BR>(DOI at pp. 19-20)<P>Later in their book the Ramseys report: <P>We had heard that detectives had interviewed Linda and her husband and had taken hair, blood, and saliva samples." (DOI p. 173)<P>Even if the "reasonable reader" doesn't know by this time the true purpose and meaning of Patsy Ramsey's remarks (which is inconceivable), very little is left to the reader's imagination with this statement:<BR>If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenet. <BR>(DOI p. 20)<P>Reading these passages "contextually," as the Court must do, there is really only one conclusion the reader can draw, i.e., Patsy Ramsey thinks Linda Hoffmann-Pugh is in some way responsible for her daughter's kidnapping. In other words, when Patsy Ramsey is asked by the police who could have done this? she replies, in effect, my housekeeper, Linda Hoffmann-Pugh did it. The dullest reader in America can plainly see this happening.<BR>The Ramseys, moreover, are aware of what they are doing with these statements, because they try to protect themselves by adding a "disclaimer" in the form of a parenthetical "if it's Linda" to show the reader that although they are pointing their collective finger at their former housekeeper, they are not really trying to hurt her after all. They pretend that the reader will believe, with a wink and a nod, that it is only their "impression" of what happened, or their "thought processes" that are being described. <BR>Unfortunately for the Ramseys (and the lawyers who probably vetted their book with the suggestion to add the words "if it's Linda") they neglected to read the Georgia case of Harcrow v. Struhar, 235 Ga. App. 403, 511 S.E.2d 545 (1999), which held that a disclaimer, not unlike the one above, does not prevent a statement like that from having a libelous meaning as a matter of law, particularly when it is considered within the text of the complete statement.<BR>Further proof (if any is needed) that the Ramseys are up to no good in their book can be provided by deconstructing the Ramseys' statements about Linda Hoffmann-Pugh. This highly instructive exercise shows how cleverly the Ramseys attempt to walk a fine line just short of an outright accusation of kidnapping by their housekeeper. For example, the Ramseys carefully craft their description of how Linda Hoffmann-Pugh was supposed to pick up the money she was borrowing from them when they write: <BR>Linda would let herself in the house and pick it up while we were gone for the holidays. (DOI p. 19). <P>Arguably, this passage sounds exactly like the way a kidnapper would have gained access to their house to remove JonBenet from her bedroom while the family was sleeping, i.e., by surreptitiously "letting themselves in the house," in precisely the same manner in which the Ramseys choose to describe Linda Hoffmann-Pugh's future appearance to pick up her money.<BR>Another example of the Ramseys' insidious craftsmanship can be found in the way they try to provide the reader with Linda Hoffmann-Pugh's "motivation" for the kidnapping (e.g., her "desperate" need for rent money) and her state of mind while supposedly committing the crime (e.g., she's "upset"). <BR>But the Ramseys have one problem. Since most people normally don't kidnap their employer's children for the rent money, the Ramseys need to convince the reader of Linda Hoffmann-Pugh's "questionable" moral character, which they do masterfully by untruthfully reporting that even her own sister was so contemptuous of her that she was prepared to evict Linda and her family from their home for back rent. (Linda has categorically denied this description of her relationship with her sister, which is, in fact, a loving and supportive one.)<BR>Apparently unsatisfied with these nasty bits of innuendo, the Ramseys leave nothing to chance, making certain that their meaning is perfectly clear to the reader, by adding the following observation to their book:<BR>Patsy remembers that her mother, Nedra Paugh, had said that Linda had remarked to her at one time, "JonBenet is so pretty; aren't you afraid that someone might kidnap her? Now those comments seem strangely menacing." (DOI p. 19) (emphasis added)<BR>Could anything be more obvious than this?<BR>The Ramseys claim, moreover, that Linda Hoffmann-Pugh has never <BR>denied she ever made this statement (as if this somehow proves their point about the "reasonableness" of believing that Linda is a legitimate suspect.) However, every pleading and memorandum of law submitted by the appellant contains a categorical denial of such a statement. (In point of fact, it was made by Nedra Paugh herself in the presence of Linda Hoffmann-Pugh, who heard Nedra say: "JonBenet is so pretty, we're afraid that someone might kidnap her.")<BR> But the Ramseys are desperate people. They need to mischaracterize the facts, since they are hiding something truly awful (later revealed in their book), which is the terrible reason why they must accuse other people of their crime. As they confess in their book:<BR>The number one job of our attorneys and the investigators has always been to keep the two of us out of jail…….. (DOI p. 331)<P>As this quote from their book reveals, the Ramseys are highly motivated in their desire to shift the focus of suspicion away from themselves and onto another person; in this case, pointing the finger of suspicion at their housekeeper Linda Hoffmann-Pugh.<BR> If all the Ramseys really wanted to do, as they claim in their Brief, is to bring out the fact that law enforcement agencies bungled the murder investigation of their daughter, while improperly focusing attention on them as murder suspects, then all well and good. But that is not the Ramseys' purpose in writing their book. Their real purpose, as they explain it to their readers, is the following:<P> "We will only say that our goal is to bring the killer to justice. We will not stop until we have heard the jury say, "Guilty of murder in the first degree." (DOI p. 408)<P>"Our goal is to encourage our society to come down with its full might in the pursuit of murderers of children. Track them down, prosecute them, and send a warning to all America to protect their children. Harm them, and the full might of the most powerful country on earth will find you and hold you accountable." (DOI p. 426)<P><BR>There is only one problem with these noble sentiments, and it is this: If the Ramseys are involved in the murder of their daughter, as Linda Hoffmann-Pugh alleges in her libel complaint, and as the Boulder police and the Governor of Colorado seem to believe, then the only people who can be brought to justice, who are not the Ramseys, are by definition innocent people. When considered in this light, the subtext of the Ramseys' solemn proclamation "to find the killer" can only be interpreted as an intention to use their book in an ongoing effort to avoid prosecution by "framing" an innocent person by discussing suspects by name. One of the unfortunate legal consequences for the Ramseys in this strategy is that in order to do a convincing job of implicating another person in their crime, they must libel that person as well, naming them in the process.<BR> Nowhere in the District Court's opinion dismissing this case is there any mention or discussion of these facts, or of the Ramseys' motivation to libel innocent people in their ongoing attempt to avoid prosecution for the murder of their daughter JonBenet by implicating other people. Since a district court may not dismiss a complaint under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim, this Court must reverse the lower court's decision. See, Beck v. Deloitte & Touche, 144 F.3d 732, 735-36 (11th Cir. 1998) ("In seeking dismissal for failure to state a viable claim, a defendant thus bears the 'very high burden' of showing that the plaintiff cannot conceivably prove any set of facts that would entitle him to relief.") <BR>As the U.S. Supreme Court has clearly stated:<BR>When a federal court reviews the sufficiency of a<BR>complaint…he issue is not whether a plaintiff will <BR>ultimately prevail but whether the claimant is entitled <BR>to offer evidence to support the claims. Indeed it <BR>may appear on the face of the pleadings that a recovery <BR>is very remote and unlikely but that is not the test….<P>'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'<P>Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (quoting Conley, 355 U.S. at 45-6 (emphasis added)). Accord in Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), quoted in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-250 (1989).<BR>2. The Ramseys Misconstrue Inapposite Case Law and Judge Carnes' Ruling, While Mischaracterizing the Facts of This Case<P> The Ramseys rely on several red herrings to support their arguments.<BR>First of all, Linda Hoffmann-Pugh has never claimed that the Ramseys'<BR>omitting any mention of the police clearing Linda Hoffmann-Pugh supports her libel action. Yet the Ramseys devote part of their discussion in their original memorandum of law supporting their motion to dismiss, and later, in their brief (Ramsey. Br. at 22), to the proposition that Georgia doesn't recognize "libel by omission." They nod approvingly when the District Court mistakenly joins them in their bogus discussion in it's opinion. Naturally, the law of libel by omission may be a very interesting topic, and, under different circumstances, very nice to know in a general, abstract sort of way, but it mistakenly addresses an issue never raised by Linda in the first place. Namely, Linda Hoffmann-Pugh has never claimed that she was libeled by "omission." Instead, she claims that the "totality" of the Ramseys reference of her in the book, along with their libelous statements, create the false impression that she was, and still is, under police suspicion.<BR> Next, the Ramseys rely upon a misreading of Judge Julie Carnes' Order in a related case with very similar facts to prop up their argument. Contrary to what the Ramseys claim what Judge Carnes says in her opinion, the court does not specifically cite the Ramseys mention of a suspect "list" as being dispositive. Judge Carnes cites, instead, the fact that the Ramseys discuss Chris Wolf as among their suspects (which they also do with Linda Hoffmann-Pugh) as being one of the determining factors. In fact, Judge Carnes writes that:<BR>The Court concludes that the statements made in defendants' book are reasonably read to impute the crime of murder to plaintiff. Although defendants do not directly state that plaintiff killed JonBenet, they claim that they did not kill their daughter, the people and name plaintiff as one of they suspected may have done so. In determining whether a statement is defamatory, 'he trial judge should read and construe the publication as a whole, and thereafter 'may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury. In considering whether a writing is defamatory as a matter of law, we look…at what construction would be placed on it by the average reader." Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S. E. 2d 16, 17 (1992) (citations omitted). The Court concludes that a jury could reasonably conclude from these statements, taken as a whole, that the Ramseys were imputing the murder of JonBenet to plaintiff. <P>The next question is whether these statements are capable of being proved false. Defendants claim that they are not because they merely represent their impressions at the time that plaintiff "represented too many unanswered questions." Plaintiff, however, argues that defendants killed JonBenet, and therefore had no basis for their supposed belief that plaintiff had something to do with her death. At this stage of the proceedings, the Court must take all facts in favor of the plaintiff. Assuming for the purpose of this order that defendants did know who killed JonBenet, and knew that the murderer was not plaintiff, their statements was not merely opinion, but was indeed a falsity. (Emphasis added)<P>Wolf v. Ramsey (00-CIV-1187) at pp. 11-12.<P> Once again, the Ramseys applaud the fact that the District Court in this case has also followed another one of their red herrings in their misreading of Judge Carnes' Opinion, citing the District Court's language approvingly as supporting their argument, while incorrectly identifying the Appellant's reliance on Judge Carnes' order as "misplaced." However, both the District Court and the Ramseys are dead wrong: Nowhere in her opinion does Judge Carnes use the word "suspect list" when referring to how the Ramseys characterized various "suspects" in their book. She writes, instead, that it is because the Ramseys "name plaintiff as one of the people they suspected may have done so ," (Carnes p. 11) that she concludes that the Ramseys made potentially defamatory statements about the plaintiff Chris Wolf in their book. Linda Hoffmann-Pugh is not "missing from the ranks" of Ramsey suspects. She is, in fact, mentioned as the first of their suspects at the very beginning of their book, where a reader is most likely to read her name. In fact, she has the dubious distinction of being the first suspect Patsy Ramsey gives to the police. (A claim could be made that no "reasonable reader" would do more than look at a few pages of the Ramseys' book, where they would most likely see Linda Hoffmann-Pugh discussed, before slamming the book shut in disgust, determined not to read any more of the self-serving bilge that the Ramseys have served up to an unsuspecting public in their ongoing attempt to avoid criminal prosecution for the murder of their daughter.)<BR> The Ramseys' final red herring is so unappetizing that it fairly reeks from being so poorly prepared and cooked. The Ramseys argue that the 1980 California state case of Forsher v. Bugliosi, 608 P.2d 716, which is not even a Federal Circuit Court of Appeals case, and is so old and neglected that it is rarely, if ever, cited, should control the case law in Georgia. They dismiss the important Georgia appellate case of Harcrow v. Struhar, 236 Ga. App. 403, 511 S.E.2d 545 (1999) as being "misplaced" (even though it is almost on "all fours" with this case), describing Harcrow as having "dramatically different facts." (Ramsey.Br. at 23.)<BR> The facts of Forsher are quite different from those in Harcrow and those in this case. The most important of these facts is that a former California prosecutor, who is not trying to avoid prosecution for the murder of his daughter, has written a book about a crime that had been successfully solved and prosecuted, in which the perpetrators were already behind bars. This is a key point and worth repeating: The book was not written by the felons themselves in an ongoing attempt to avoid prosecution for their crime! <BR> Rather than let the Ramsey's mischaracterization of this case be the prevailing one, or that of the District Court, the following description of the Harcrow case is from Judge Carnes' 2/9/01 opinion in Wolf v. Ramseys (00-CV-1187):<BR>Harcrow presents similar facts to the case at bar. In Harcrow, the plaintiffs sued their next door neighbor for, among other things, libel and slander. The defendant had published a notice that he placed in neighbors' mail boxes, which read: <P>NEIGHBORHOOD ALERT: SOMEONE HAS SHOT MY CAT! Hello Friends and Neighbors. Well, it used to be that your neighbors were your friends, but that is apparently not always true. On Thursday, I had to rush my bleeding kitty to the emergency vet clinic where the Veterinarian diagnosed my cat as being the victim of a gunshot wound. Now, the only people in the neighborhood who have expressed hatred for cats are John and Mary Ellen Struhar, and I'm not saying that they are responsible for this atrocious act, that will be determined by the Smyrna Police, but they are the prime suspects… And, really, such an act of violence would be in character for someone driven by hatred. <P>Id. at 403, 511 S. E. 2d at 545-46. Defendant admitted that he had no evidence as to who shot his cat, that he did not call the police after he had distributed the fliers, and that he did not tell the police that he suspected the plaintiffs. Id. at 403, 511 S. E. 2d at 546. The Court concluded that the writing was defamatory because it stated, "if not directly, then by strong implication, that the are the 'prime suspects' of the …police in a determination as to who shot the cat." Id. at 404, 511 S. E. 2d at 546. Further, the Court stated, "the writing as a whole could be reasonably construed to imply that shot cat and was therefore guilty of the crime of cruelty to animals. O.C.G.A. S 16-12-4." Id. The Court went on to state that it is libelous per se to state that a person is guilty of a crime, regardless of whether the statement is made "directly or by implication or innuendo." Id. <P>Defendant apparently attempted to argue that the writing was merely his opinion, and that the statement "I'm not saying that they are responsible for this atrocious act" somehow negated the other portions that imputed the crime to plaintiffs. The court held that this "disclaimer" did not negate the other sections which could reasonably be read to impute the crime to plaintiffs. As to the issue of opinion, the court first noted that there is "no wholesale defamation exemption for anything that might be labeled 'opinion.'" Id. (quoting Eidsen v. Berry, 202 Ga. App. 587, 588, 415 S. E. 2d 16 (1992). Instead, the "pivotal questions" are whether the statement can reasonably be interpreted as stating or implying defamatory facts and whether these assertions are capable of being proven false. Id.<P>Wolf v. Ramseys (00-CV-1187) at 9-10.<P> Last, but not least, the Ramseys misapply the decision in Nix v. Cox <P>Enterprises, Inc., 247 Ga. App. 689, (2001), incorrectly claiming that <P>Harcrow has been "distinguished" and "limited" by the Georgia Supreme <P>Court. As this Court can see from the following holding in Nix, there is no <P>distinction being made to the spatial location of the juxtaposed statements <P>giving rise to libelous imputations and inferences. The only thing that <P>matters, according to the Nix court, is that there be some unexplained <P>relationship between the between the statements to allow a reasonable reader <P>to draw a defamatory inference. As the Nix court stated: <BR> <BR>What a jury may find to be libelous is the inclusion of …. noncriminal conduct with that of other…… criminal conduct in such fashion and without explanation of noncriminal conduct as to lead the average reader to believe that the contrary was true. It is not a statement of "opinion" to place….. noncriminal conduct in direct relation to conduct that is criminal.<P>Nix v. Cox Enterprises, Inc., 247 Ga. App. 689, (2001).<P>Speaking of criminal conduct: should the Boulder police or some other Colorado law enforcement authority actually arrest one of the innocent people being promoted as kidnap/murder suspects by the Ramseys in their book, John and Patsy Ramsey would actually be guilty of First Degree Murder under Colorado's criminal code were that person eventually executed as a result of the lies being perpetrated in The Death of Innocence, (a book which could then be aptly renamed The Death of an Innocent. ) Although murder suspects enjoy the same rights as other citizens, including the right to remain silent, they do not enjoy the right to frame innocent people in a book whose express purpose, according to its authors, is to "bring the killer to justice" - so long as that "killer" is anyone but them. The Ramseys' assault on the integrity of the criminal justice system and the First Amendment must finally be put to a stop -- now. Is there a better place for it to happen than here?<P><BR>Dated: July 30, 2002.<P> Respectfully submitted,<P> _________________________<BR> DARNAY HOFFMAN<BR> 210 West 70th Street<BR> New York, NY 10023<BR> (212) 712-2766<BR> fx: (212) 496-8676<P> Attorney for Plaintiff-Appellant<P><BR>