IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Case Number 02-12642-DD

LINDA HOFFMANN-PUGH
Plaintiff-Appellant,
vs.
PATRICIA RAMSEY &
JOHN RAMSEY,
Defendants-Appellees.

On Appeal from the United States District Court
Northern District of Georgia
Atlanta Division

The Honorable Thomas W. Thrash
District Judge

D.C. No. 01-CV-0630

APPELLANT’S BRIEF

Darnay Hoffman, Attorney for Appellant
Request for Oral Argument

Plaintiff-Appellant Linda Hoffmann-Pugh respectfully requests oral argument be allowed her attorney.

This appeal involves unique questions of libel law in a case that has received national attention for
over five years.

Is the “speech” of murder suspects who write a bestselling book implicating innocent people, in order to avoid prosecution for a crime they themselves have committed, protected by the First Amendment, any more than perjury, yelling “fire!” in a crowded theatre, or the speech of conspirators agreeing to commit a crime is protected?

This question has never been asked before and it is just one of the many issues facing the Court in
this case of first impression.

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………….i

TABLE OF CITATIONS………………………..…………………………..ii

STATEMENT OF JURISDICTION……………………………………...…1

STATEMENT OF THE ISSUES………………………………………..…..1

STATEMENT OF THE CASE……………………………………………...1

SUMMARY OF THE ARGUMENT………………………………………..5

ARGUMENT AND CITATION OF AUTHORITY………………….…….7

A Standard of Review……….…………………………………...7

B.The Defendants’ Statements Are Defamatory Under Georgia
Law……………………………………………………...….9

C Defendants Made Actionable Statements of Mixed Opinion And
Fact………………………………………………...…16

D The District Court Erred in Relying on Inapposite California Case Law in Preference to Settled
Georgia Case Law……19

E The Defendants’ Statements are Unprotected Because the Ramseys Knowingly Lied and Made False
Statement To Implicate Innocent People in Their Crime……..……...21

CONCLUSION………………………………………………………...…..24

STATEMENT OF JURISDICTION

Plaintiff-appellant, Linda Hoffmann-Pugh, brought this action seeking damages for defamation
pursuant to 28 U.S.C. § 1332, as there exists complete diversity of citizenship between the plaintiff
and the defendants and the amount in controversy exceeds seventy-five thousand dollars, exclusive
of interests and costs. Venue is proper pursuant to 28 U.S.C. § 1391. On April 8, 2002, the District
Court filed its order granting defendants-appellees’ Motion to Dismiss. Plaintiff-appellant filed a timely
Notice of Appeal on May 6, 2002, pursuant to Fed.R.AppP. 4(a)(1)(A).

STATEMENT OF THE ISSUES

Whether the District Court erred in ruling that statements made about the plaintiff-appellant Linda
Hoffmann-Pugh in the defendants-appellees’ book The Death of Innocence, implicating her in the
kidnap/murder of their daughter, were not defamatory as a matter of law.

STATEMENT OF THE CASE

This case is for libel and slander. The defendants are non-media, multimillionaire murder suspects in
the horrific death of their six-year-old daughter JonBenet Ramsey, who was found sexually assaulted
and killed in the basement of their home on December 26, 1996. The Ramseys are unique in American
history, in that they are arguably the first, and only, unindicted murder suspects to write a
bestselling book defaming innocent people under the guise of criticizing a law enforcement agency, in
what appears to be part of the defendants’ ongoing effort to elude prosecution.

The district court took judicial notice of the fact that Atlanta judge Julie E. Carnes had already ruled
on similar questions of law and fact in a previous defendants’ motion to dismiss in the related case of
Wolf v. Ramsey (00-CV-1187). In Judge Carnes’ 2/9/01 opinion denying the defendants’ motion to
dismiss, the court ruled that the plaintiff’s complaint for libel contained allegations of fact sufficient
to allow a jury to find that the statements made in John and Patsy Ramsey’s book The Death of
Innocence (1) defamed the plaintiff, (2) were libelous per se, and (3) were actionable mixed opinion
and fact.

This Court might also wish to take judicial notice of the fact that the Ramseys’ book, which is part of
the Record, makes it clear that the authors remain the only publicly declared suspects by the Boulder
police, the district attorney, and the Governor of Colorado, who the Ramseys have threatened to sue
for libel for his statements concerning their involvement in the death of their daughter JonBenet. To
date, the Ramseys have been involved in at least ten separate lawsuits for libel and slander, nearly
all of which they have initiated themselves, in what may arguably represent the largest single assault
on the First Amendment by murder suspects endeavoring to avoid prosecution in American history.

Evidence exists, moreover, in the form of handwriting reports and affidavits from forensic handwriting
experts (Plaintiff’s Complaint, Ex. 1), that Patsy Ramsey is the author of the ransom note found at
the scene of her daughter’s murder.

It is their ongoing attempt to elude prosecution by shifting suspicion onto innocent people that has
led the Ramseys to make certain statements in their book The Death of Innocence: The Untold Story
of JonBenet’s Murder and How Its Exploitation Compromised the Pursuit of Truth (“DOI”) (published in
March of 2000) that are deliberately calculated to create the false impression that Linda
Hoffmann-Pugh was involved in some way in the kidnap/ murder of their daughter JonBenet, which
has led to this lawsuit:
“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. Linda Hoffmann-Pugh had called Patsy a couple of
days before Christmas, very distraught and in tears. Linda said her sister, who was also her landlord,
was going to evict her if she didn’t come up with the past-due rent. She asked Patsy if she could
borrow twenty-five hundred dollars to cover it. Patsy had consoled Linda and agreed to lend her the
money. In fact, Patsy had intended to leave the check for Linda on the kitchen counter before
leaving for Michigan; Linda would let herself in the house and pick it up while we were gone for the
holidays.

“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.

“Finding the phone number in her digital Rolodex, Patsy tells a police officer where Linda Lives in Ft.
Lupton, Colorado. Patsy later tells me she was thinking, 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.”

“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.”
(DOI at pp. 19-20)

As a result of the Ramseys’ interest in establishing that Linda
Hoffmann-Pugh was involved in the kidnap/ murder of JonBenet, the plaintiff has unnecessarily
become the subject of unflattering and intrusive attention by law enforcement and the media,
causing her extreme humiliation, embarrassment, and emotional distress. She has also been exposed
to public hatred, contempt, and ridicule in the small community of Platteville, Colorado, where she
lives and works.

As set forth more fully below, the plaintiff argues that the district court erred by not following
Georgia case law, accepting that of California instead, when it granted the Defendants’ Motion to
Dismiss in its entirety. The statements complained of constitute libel per se and are not privileged.

SUMMARY OF THE ARGUMENT

Atlanta district court judge Julie E. Carnes correctly answered the question of whether or not the
defendants made defamatory statements in their book The Death of Innocence in her decision in the
related case of Wolf v. Ramsey (00-CV-1187):

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, and name plaintiff as one of the people
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.

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)

Id. at 11-12.

Unfortunately, Atlanta district court judge Thomas Thrash erred when he incorrectly held that Judge
Carnes’ decision was inapposite to his decision granting the defendants’ motion to dismiss. Judge
Thrash also incorrectly deferred to the California state case of Forsher v. Bugliosi, 26 Cal.3d 792
(1980), instead of accepting the Georgia appellate case of Harcrow v. Struhar, 235 Ga. App. 403
(1999) as dispositive, as required of federal courts sitting in diversity. The Eleventh Circuit has held
that:

In determining the law of the forum state, federal court must follow the decisions of the state’s
highest court, and in the absence of such decisions on an issue, must adhere to the decisions of the
state’s intermediate appellate courts unless there is some persuasive indication that the state’s
highest court would decide the issue otherwise.

Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).

Furthermore, when a state’s highest court has not addressed an issue, the federal district court must
make an “educated guess” as to how the state’s highest court would rule. See, e.g., Benante v.
Allstate Ins. Co., 477 F.2d 553, 554 (5th Cir. 1973). Here, the district court failed to do so.

ARGUMENT AND CITATION OF AUTHORITY

A. Standard of Review

A motion to dismiss under FRCP Rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser
Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982).
The complaint, furthermore, must be liberally construed in favor of the plaintiff, and all facts pleaded
in the complaint must be taken as true. Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992). See
also, Quality Foods de Centro, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d
989, 994-5 (11th Cir. 1983)

The district court, moreover, 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 claim which would entitle
him to relief. Conley v. Gibson, 355 U.S. 69, 73, 104 S. Ct. 99, 101-103, 2 L.Ed.2d 80 (1957). 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.”) As the U.S. Supreme
Court clearly stated:

When a federal court reviews the sufficiency of a
complaint…he issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims. Indeed it
may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test….

‘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.’

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).
Furthermore, any motion to dismiss that is granted by a district court is reviewed de novo by the
appellate court, which applies the same standard as the lower court. “In reviewing de novo a
dismissal pursuant to Rule 12(b)(6), we apply the same standard as did the district court.” South
Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). See also, Marshall
County Bd. Of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

B. The Defendants’ Statements Are Defamatory Under Georgia Law

The District Court erred by agreeing with the defendants’ claim that the statements complained of by
the plaintiff are not capable of a defamatory meaning as a matter of law in Georgia. In raising this
argument, the defendants, along with the District Court, ignored a crucial distinction in the caselaw:
A court may grant a motion to dismiss only if it finds that the plaintiff cannot prove any set of facts
consistent with those alleged in their complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73
(1984).

The defendants, moreover, bear “the ‘very high burden’ of showing that the plaintiff cannot
conceivably prove any set of facts that would entitle to relief.” Beck v. Deloitte & Touche, 144
F.3d 732, 735 (11th Cir. 1998). (Emphasis added). And although the defendants’ correctly argued
that it is one of the functions of the court to determine the threshold question of whether a
statement is reasonably susceptible of conveying a defamatory meaning, they ignored addressing the
argument that it remains strictly within the exclusive province of the jury to determine whether the
plaintiff has in fact been defamed. Bryant v. Avado Brands, Inc., 187 F. 3d 1271 (11th Cir. 1999);
South Fla. Water Management Dist. V. Montalvo, 84 F. 3d 402 (11th Cir. 1996).

Ignoring this critical distinction is no small matter since this separation of roles between the court
and the trier of fact inevitably leads to an important limitation in the nature of the district court’s
inquiry:

On a motion to dismiss or for summary judgment, the issue is not whether the court regards the
language as libelous, but whether it is reasonably susceptible of such a construction. The court may
not…interfere with the jury’s role by treating as nondefamatory a statement that a reasonable juror
may fairly read in context as defamatory.

Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986).

The District Court erred in holding that there was no basis for a jury to find the statements by the
Ramseys to be defamatory, thereby effectively usurping the jury’s function, while improperly
substituting the court’s subjective interpretation of the defamatory nature, if any, of those
statements for that of a jury.

According to Georgia statute, a statement is “reasonably susceptible” of a defamatory meaning when
“tending to injure the reputation of the person and exposing him to public hatred, contempt, or
ridicule.” O.C.G.A. 51-5-1 (Emphasis added). In making this evaluation, moreover, a court must read
the words as “naturally” as possible within their context, and as an average reader would understand
them. “A publication claimed to be defamatory must be read and construed in the sense in which the
readers to whom it is addressed would ordinarily understand it.” Fiske v. Stockton, 171 Ga. App. 601,
605, 320 S.E.2d 590.

The Georgia case of Harcrow v. Struhar, 235 Ga. App. 403, 511 S.E.2d 545 (Ga. App. 1999)
illustrates this principle. When a libel defendant wrote and circulated a neighborhood flyer implying
that the plaintiffs were responsible for shooting his cat, the court found that the writing as a whole
could be reasonably construed to imply that the plaintiffs had shot the defendant’s cat and were,
therefore, guilty of the crime of cruelty to animals.

The Harcrow court held, furthermore, that just because the defendant’s flyer included a statement
which was clearly intended to act as a general disclaimer (“I’m not saying that they
are responsible for this atrocious act, that will be determined by the…police, but they are prime
suspects,” id. at 546), this fact alone did not negate the other portions of the writing. The court
found that a jury could reasonably conclude that the statements in the flyer, when taken as a whole,
could be understood to be the equivalent of imputing a crime to the plaintiffs. “The evidence was
clearly sufficient for the jury to conclude that the writing published by was false and
malicious defamation tending to injure the reputation or expose them to public hatred,
contempt, or ridicule.” Id. at 546.
A similar conclusion was reached by the 2nd Circuit Court of Appeals in a decision which held that
tatements implicating in a murder appear among conflicting and speculative
versions of an unresolved mystery reflects only that a jury issue exists as to how the words were
likely to be understood by the ordinary and average reader, and does not preclude a trier of fact from
finding a defamatory connotation.

Levin v. McPhee, 119 F.3d 189, 195 (2nd Cir. 1997).

Under Georgia law, courts may find as a matter of law that statements are not libelous only if the
language is “so clear, certain and unambiguous that the only possible construction is that it is not
libelous or defamatory.” World Ins. Co. v. Peavy, 110 Ga. App. 651, 654, 139 S.E.2d 440, 442 (1964).
(Emphasis added). Furthermore, “words which alone are innocent may in their context clearly be
capable of a defamatory meaning and may be so understood.” Jewell v. NYP Holdings, Inc., 23 F.
Supp. 2d 348, 362 (S.D.N.Y. 1998).
The defendants’ statements, when taken within the context of their book about the “unsolved”
murder of their daughter and the various “suspects” they believe worthy of investigation, are capable
of conveying to the average reader that Linda Hoffmann-Pugh was a legitimate murder suspect “who
might have been angry or acting strangely” (DOI at p. 19) because she “had called Patsy a couple of
days before Christmas, very distraught and in tears” (DOI at p. 19) because her own sister (!) “was
going to evict her if she didn’t come up with the past-due rent” (DOI at p. 19) while agreeing to allow
her to “borrow twenty-five hundred dollars to cover it” (DOI at p. 19) which she could do if she “let
herself in the house and pick it up while we were gone for the holidays.” (DOI at p. 19)

Moreover, the fact that the defendants’ then state that “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?”(DOI at pp. 19-20) only adds to the general impression being created
for the reader that the Ramseys believe there is a legitimate reason to give Linda Hoffmann-Pugh’s
name to the police as a suspect.

To dispel any doubt that this is what the Ramseys are doing, they add the rather melodramatic
observation that “Now those comments seem strangely menacing” for effect. (DOI at p. 19)
The defendants next throw additional fuel on the fire by including

Patsy Ramsey’s completely gratuitous observation that “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.” (DOI at p.
20)

The Ramseys then conclude the matter of Linda Hoffmann-Pugh’s fate by leaving it entirely up in the
air, never to be referred to again in their book, with the statement that

“The police tell us they will arrange for the Ft. Lupon 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.”
(DOI at p. 20)

Given the public’s extensive knowledge of the existence of a ransom note from reading the
defendants’ book, a court might easily conclude that a fair reading of these statements could lead
the general reader (and a jury) to believe that the defendants’ intended to convey the impression
that Linda Hoffmann-Pugh had at least kidnapped their daughter, if not actually murdered JonBenet
Ramsey.
What the Ramseys fail to tell the reader is that Linda Hoffmann-Pugh was immediately cleared by the
police and later appeared before a Boulder grand jury as a prosecution witness. Nowhere in their book
do they mention this fact. Clearly, they want the reader to draw the inevitable conclusion that Linda
Hoffmann-Pugh may have been involved in the kidnapping, if not murder, of their daughter and
remains a police suspect.

“Whether stated directly or by implication or innuendo, it is libelous per se to falsely state that a
person is guilty of a crime or has a criminal case pending against him.” (Emphasis added). Harcrow v.
Struhar, 236 Ga. App. 403, 511 S.E.2d 545, 546 (G. App. 1999); Mead v. True Citizen, Inc., 203 Ga.
App. 361, 362, 417 S.E.2d 16 (1992); Melton v. Bow, 241 Ga. 629, 630-31, 247 S.E.2d 100 (1978);
Witham v. Atlanta Journal, 124 Ga. 688, 53 S.E. 105 (1906).

As Judge Carnes held in her decision in Wolf v.Ramsey(00-CV-1187):

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, and name plaintiff as one of the people
they suspected may have done so……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.

Id. at 11.

Judge Carnes also went on to hold that Chris Wolf had been successful in “establishing that
defendants’ statements constituted libel per se……” (Carnes at p. 12) in his complaint, thereby
rejecting the argument the defendants are now raising for a second time in the memorandum of law
they have submitted in support of this motion.
In the present case, the Ramseys are imputing, at the very least, thecrime of kidnapping to Linda
Hoffmann-Pugh when they write:

“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…..Patsy later tells me she was thinking, 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.”
(DOI at pp. 19-20)

C. Defendants Made Actionable Statements of Mixed Opinion and Fact

Another threshold issue for the District Court to determine was whether or not the defendants’
statements were opinion or fact. “There is no wholesale defamation exemption for anything that
might be labeled ‘opinion.’ To say otherwise would ignore the fact that expressions of ‘opinion’ may
often imply an assertion of objective fact.” Eidson v. Berry, 202 Ga. App. 587, 588, 415 S.E. 2d 16
(1992). (emphasis added)
As the U.S. Supreme Court explained in Milkovich v. Lorain Journal, 497 U.S. 1, 110 S. Ct. 2695, 111
L. Ed. 2d 1 (1990), the Constitution does not offer wholesale protection for so-called “expressions of
opinion” if those expressions imply assertions of objective fact. (“As Judge Friendly aptly stated: ‘It
would be destructive of the law of libel if a writer could escape liability for accusations of
simply by using, explicitly or implicitly, the words ‘I think.’id. at 18-19.) The
Milkovich court also observed that “It is worthy of note that at common law, even the privilege of fair
comment did not extend to ‘a false statement of fact, whether it was expressly stated or implied from
an expression of opinion.’” Id. at 19.

A statement cast in the form of an opinion may imply the existence of undisclosed defamatory facts
on which the opinion purports to be based, and thus may be actionable. Jaillett v. Georgia Television
Co., 238 Ga. App. 885, 890, 520 S.E. 2d 721 (1999); Restatement (Second) of Torts 566 (1977).

In their book, the Ramseys repeat remarks which Linda Hoffmann-Pugh categorically denies ever
making (“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?’”) and then try to
“clean up” their defamatory statements by adding a “disclaimer” with Patsy’s observation: “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.” (DOI p. 20) Remarkably, these facts are very similar to those of
Harcrow v. Struhar, 236 Ga. App at 403-4, in which a Georgia Court of Appeals rejected the
argument that a general “disclaimer” by a cat owner accusing his neighbors of shooting his pet was
vitiated by his statement that “I’m not saying that are responsible for this atrocious
act, that will be determined by the , but they are prime suspects…” Id. at 404. The Court
found, moreover, that this statement “was not merely an expression of his opinion,” id. at 404, and
that it “does not negate other portions of the writing,” id. at 404, and that as a result “the jury was
entitled to conclude were the equivalent of imputing a crime to the .” Id.
at 404.

Defendants’ counsel is uniquely aware of the implications of including Linda Hoffmann-Pugh in the
Ramseys’ list of “suspects,” having appeared as plaintiff’s counsel for Richard Jewell, who was falsely
identified as a suspect in the terrorist bombing of the Olympic games in 1996, in the case of Jewell v.
NYP Holdings, Inc., 23 F. Supp. 2d 348, (S.D.N.Y., 1998). The court in that case observed that
“Although the net cast by a criminal profile may well capture a number of innocent people, that fact
does not change the damaging impact on the innocents snared…..a person who fits the profile is
identified as someone who may have been involved in a criminal act. Such a false accusation is not
without its sting or pain.” Id. at 364. See also Levin v. McPhee, 119 F. 3d at 195 (statement
implicating someone in a murder, even though such an implication appeared “among conflicting and
speculative versions of an unresolved mystery,” was capable of a defamatory meaning and motion to
dismiss was properly denied.)

John and Patsy Ramsey’s public statements, and those in their book, are laden with innuendo and
suggestions that the plaintiff was a legitimate kidnapping and murder suspect. “Even if the speaker
states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or
if his assessment of them is erroneous, the statement may still imply a false assertion of fact.”
Milkovich v. Lorain Journal Co., 497 U.S. 1 at 18.

D. The District Court Erred in Relying on Inapposite California Case Law in Preference to Settled
Georgia Case Law

The district court relies upon the California case of Forsher v. Bugliosi, 26 Cal. 3d 792 (1980), in
preference to the Georgia case of Harcrow, in reaching its conclusion that a jury could not, as a
matter of law, find that the Ramseys defamed Linda Hoffmann-Pugh. In doing so, the district court
has ignored the Eleventh Circuit’s holding that:

In determining the law of the forum state, federal court must follow the decisions of the state’s
highest court, and in the absence of such decisions on an issue, must adhere to the decisions of the
state’s intermediate appellate courts unless there is some persuasive indication that the state’s
highest court would decide the issue otherwise.

Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).

The law of the forum state of Georgia is found in Harcrow, and not in the law found in the California
case of Forsher. In Forsher, it is a state prosecutor who is reporting the facts of a case in which he
participated, while in the case before this Court, it is murder suspects (i.e., the Ramseys) who make
the defamatory statements in what is arguably an attempt to cover their tracks by implicating Linda
Hoffmann-Pugh to the police and the general reader of their book.

The District Court, moreover, relies upon a strained interpretation of Linda Hoffmann-Pugh’s argument
by laboriously deconstructing the Ramseys’ statements into their separate parts to “prove” that they
are not defamatory to the plaintiff. However, the District Court seemingly ignores the fact that it is
the “totality” of their statements, taken together with their protestations of “innocence” that makes
their reference to Linda Hoffmann-Pugh so defamatory. “Words which alone are innocent may in their
context clearly be capable of a defamatory meaning and may be so understood.” Jewell v. NYP
Holdings, Inc., 23 F. Supp. 2d 348, 362 (S.D.N.Y. 1998).

E. The Defendants’ Statements are Unprotected Speech Because the Ramseys Knowingly Lied and
Made False Statements to Implicate Innocent People in Their Crime

John and Patsy Ramsey have piously argued that the plaintiff’s cause of action risks chilling
significant truthful speech and valuable opinion, thereby interfering with their “right” to defame
innocent people for the kidnap/murder of their daughter by naming them in their book as possible
police suspects. The defendants then go on to lament the fact that Linda Hoffman-Pugh’s complaint
will discourage their expression of “truthful” speech in the ‘marketplace of ideas.’ The Ramseys
support this proposition -- that the First Amendment somehow protects their right to “name”
(frame?) murder suspects in a book -- by pointing to the U. S. Supreme Court opinion of Gertz v.
Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) (“Under the First Amendment there is no such thing
as a false idea.”)

However, the Ramsey’s neglect to mention the rest of Gertz, which states that “Neither the
intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and
wide-open debate on public issues.’”( Id. at 340, quoting New York Times v. Sullivan, 376 U.S. at
270). The Ramseys, moreover, fail to mention Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in
which the Supreme Court states even more emphatically:

False statements of fact are particularly valueless; they interfere with the truth-seeking function of
the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be
repaired by counterspeech, however persuasive or effective.

Hustler Magazine v. Falwell, 485 U.S. at 52

The statements in Hustler Magazine are consistent with the U.S.Supreme Court’s pronouncement in
Garrison v. Louisiana, 379 U.S. 64, (1964), in which the Court addressed what constitutional
protection, if any, the First Amendment should grant calculated falsehoods (i.e., “lies”):
The use of calculated falsehood, however, would put a different cast on the constitutional question.
Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free
speech, it does not follow that the lie, knowingly and deliberately published…., should enjoy like
immunity…..

For the use of the known lie as a tool is at once at odds with the premises of democratic government
and with the orderly manner in which economic, social, or political change is to be effected.

Garrison v. Louisiana, 379 U.S. at 75.

It has been long established that certain speech is not protected by the First Amendment. Perjury,
the conversations of co-conspirators, yelling “fire!”, etc. are all examples of “unprotected” speech.
Why should the lies of murder suspects, who may have the legal right to remain silent, but who do
not have the right to falsely implicate innocent people for their crime in a bestselling book be allowed
to seek sanctuary in the First Amendment?

In light of the fact that there is compelling evidence in the form of handwriting reports and affidavits
by forensic document examiners attached as “Exhibit 1” to the plaintiff’s amended complaint, showing
that Patsy

Ramsey is the ransom note writer, makes the defendants’ characterization of the Book ‘s central idea
-- that the Boulder police mishandled the murder investigation -- almost ludicrous. The mere fact
that Patsy Ramsey wrote
the ransom note, if proven by clear and convincing evidence to a jury,would be sufficient to establish
as false the statement that: “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.” (DOI, at p. 19)

Arguably, Patsy Ramsey’s authorship of the ransom note would be legally sufficient proof to meet the
“actual malice” requirement that she had the necessary “intent” to knowingly publish false
statements about Linda Hoffmann-Pugh. If John and Patsy Ramsey both know she is the ransom note
writer, then, by definition, they have made provably false statements about the plaintiff with
“constitutional malice.”

“If a public figure proves by clear and convincing evidence that the defendant published with the
purpose or design of communicating a false and defamatory, albeit implied statement, the plaintiff
should be able to maintain a cause of action and recover for the resulting harm. Such a predicate to
legal responsibility of the publisher in a public figure case is fully consistent with the promise of New
York Times and its progeny. The Court in New York Times did not promise absolute immunity; it
fashioned a qualified privilege. Calculated falsehood, in the form of the deliberate lie, is not protected
by the First Amendment.”

C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning and State of Mind: The Promise of
New York Times Co. v. Sullivan, 78 Iowa L. Rev. 237, 311(1993)

CONCLUSION

Linda Hoffmann-Pugh contends that if the statements by the defendants in their book, which try to
implicate her in the horrific sexual assault and murder of a six-year girl in a case that has received
enormous international press attention, don’t rise to the level of “unprotected speech,” then what
does?

If Linda Hoffmann-Pugh cannot bring this action, accused as she is of kidnapping and possibly killing a
small child, then who can ever hope to defend their reputation from false charges of kidnap/murder?

For the foregoing reasons, it is respectfully requested that the Court reverse the Order of the District
Court.

Dated: June 14, 2002

Respectfully submitted,
_________________________
DARNAY HOFFMAN

"In their book, the Ramseys repeat remarks which Linda Hoffmann-Pugh categorically denies ever
making (“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?’”) "

"If Linda Hoffmann-Pugh cannot bring this action, accused as she is of kidnapping and possibly killing a small child, then who can ever hope to defend their reputation from false charges of kidnap/murder?"

The Ramseys didn't accuse LHP of either crime.
The lawsuit is wrong - libelous in itself!

NYL accuses the Ramseys of accusing LHP - - they didn't!

Seems to me that the lawsuit really should be the Ramseys suing NYL.

There must be some reason it isn't happening.

Someone want to tell me why?

Are lawyers exempt from responsibility?

Darnay Hoffman started in this whole case pointing out the "similarities" to the Lindburgh case and pointing at JOHN - - then when the BPD decided to go after Patsy, he changed lanes.

His handwriting experts have come and gone and they - IMO - - hope to make some big splash by doing what the FBI, CBI and US Secret Service could not do - - identify Patsy as the writer of the ransom note.

His FAX to his first handwriting expert says it all.

Trust me (as they say in Hollywood) when I tell you that if you're doing this solely for the money, then
you're nuts. This is "a career move." You better be in this because you "like the action." Because you're
going to see plenty of it when this report hits the courts.

We all know what Darnay is - - a "Media Whore" - - and a very tenacious one at that. He is the pit bull here.

The courts need to stop clogging the system with these malicious, mindless lawsuits. They should tell Darnay and others like him to stop or pay a steep price.

Mr. Darnay Hoffman,
You have TWO clients - - LHP and Chris Wolf. You say the Ramseys are accusing BOTH of them of killing their daughter. They did not, not at all. The Ramseys correctly stated that both LHP and Chris Wolf were under that huge umbrella of suspicion. Lots of us were there for a time - - me included. It isn't anything to sue over - - it is a fact and didn't have a thing to do with John and Patsy. It had to do with the things WE said and did.

Mr. Hoffman.... Schiller, Thomas... were you upset that you didn't make it into their books?
I made it into both - - it wasn't a thrill - - would it have been for you? LHP and Chris Wolf made it into those books as well - - but you didn't sue THOSE authors. Why?

Seems to me that your limited lawsuits show that you are focused only on hurting the Ramseys. I don't know if it could be called stalking or harassing or what - - but it is bloody wrong and you should STOP IT!

You are obsessed - - and on the wrong side. You are hurting innocent people.

You met them. You sat with them and saw them. I know you can't really imagine Patsy making that gaotte or sexually assaulting her child and going to bed. I know in my heart that you don't believe John would cover for her and leave her with Burke.

The worst thing is, I think you know you are wrong and don't care. You have a soul, believe it or not - even lawyers get one to start. You should take care of it.

STOP THE LAWSUITS!!!!!

You might be interested to know that I spoke with handwriting expert Paul A. Osborn who is, as you
probably already know, the grandson of Albert S. and son of Albert D. Osborn. He refuses to touch the
Ramsey case with a ten foot pole. His reasons: he knows the handwriting experts who gave their reports
to the defense team and to CBI - - - four in all. According to Osborn these experts are supposedly top in
their field (he won't give me their names) with impeccable ethical credentials. Their verdict: the
similarities between Patsy and the ransom note writers handwriting is at the very lowest end of the
spectrum, i.e., there is little or no basis for a match.

I don't have to tell you what is going to happen when I present your report and affidavit to a district
court judge. When Alex Hunter and Hal Haddon are finished with you, you will either look like Henry
Lee or Dennis Fung. Obviously this is going to be a "defining moment" for both of us. My former law
professor Barry Scheck just took a wicked hit in the Nanny murder trial, so it can happen to the best of
us.

Trust me (as they say in Hollywood) when I tell you that if you're doing this solely for the money, then
you're nuts. This is "a career move." You better be in this because you "like the action." Because you're
going to see plenty of it when this report hits the courts.

Best, Darnay Hoffman

CASE NUMBER 02-12642-DD
_____________________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Case Number 02-12642-DD

LINDA HOFFMANN-PUGH

Plaintiff-Appellant,

vs.

PATRICIA RAMSEY &
JOHN RAMSEY,

Defendants-Appellees.

On Appeal from the United States District Court
Northern District of Georgia
Atlanta Division

The Honorable Thomas W. Thrash
District Judge

D.C. No. 01-CV-0630

APPELLANT'S REPLY BRIEF

Darnay Hoffman
Attorney for Appellant
210 West 70th Street
New York, NY 10023
(212) 712-2766
TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………….i

TABLE OF CITATIONS………………………..…………………………..ii

ARGUMENT AND CITATION OF AUTHORITY………………….…….1

1. A "Reasonable Reader" Could Find That the Ramseys'
Book Defamed Linda Hoffmann-Pugh……………….……1

2. The Ramseys Misconstrue Inapposite Case Law and
Judge Carnes' Ruling, While Mischaracterizing
the Appellant's Case……..…...……………………………9

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

i.
TABLE OF CITATIONS

CASES

Beck v. Deloitte & Touche,

144 F.3d 732, 735-36 (11th Cir. 1998)………………………..………8

Conley v. Gibson,
355 U.S. 69 (1957)…………………………………………………....9
Eidson v. Berry,
415 S.E. 2d 16 (1992)…………………………………………..13, 14
Forsher v. Bugliosi,

26 Cal.3d 792 (1980)…………………………………….............….12

Harcrow v. Struhar,

235 Ga. App. 403 (1999)…………………………………..…4, 12, 14

Hishon v. King & Spalding,
467 U.S. 69, 73 (1984)………………………………………………. 9
H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 249-250 (1989)……………………………………..….9
Mead v. True Citizen, Inc.,
203 Ga. App. 361, 362 (1992)………………………………………10
ii.
Nix v. Cox Enterprises, Inc.,
247 Ga. App. 689 (2001)………………………………….…….14, 15
Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)……………………………………………..9
Wolf v. Ramsey,
(00-CV-1187)…………………………………………..11, 12, 13, 14

STATUTES
O.C.G.A. § 16-12-4………………………………………..……….…..13, 14

iii.
ARGUMENT AND CITATION OF AUTHORITY

1. A "Reasonable Reader" Could Find That the Ramseys' Book Defamed Linda Hoffmann-Pugh

The appelles mistakenly argue, as does the District Court, that the
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.
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:
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)

Two paragraphs later the Ramseys answer this police question with the

following:

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)

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.
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:
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.
(DOI at pp. 19-20)

Later in their book the Ramseys report:

We had heard that detectives had interviewed Linda and her husband and had taken hair, blood, and saliva samples." (DOI p. 173)

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:
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.
(DOI p. 20)

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.
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.
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.
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:
Linda would let herself in the house and pick it up while we were gone for the holidays. (DOI p. 19).

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.
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").
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.)
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:
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)
Could anything be more obvious than this?
The Ramseys claim, moreover, that Linda Hoffmann-Pugh has never
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.")
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:
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)

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.
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:

"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)

"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)

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.
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.")
As the U.S. Supreme Court has clearly stated:
When a federal court reviews the sufficiency of a
complaint…he issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims. Indeed it
may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test….

'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.'

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).
2. The Ramseys Misconstrue Inapposite Case Law and Judge Carnes' Ruling, While Mischaracterizing the Facts of This Case

The Ramseys rely on several red herrings to support their arguments.
First of all, Linda Hoffmann-Pugh has never claimed that the Ramseys'
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.
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:
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.

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)

Wolf v. Ramsey (00-CIV-1187) at pp. 11-12.

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.)
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.)
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!
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):
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:

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.

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.

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.

Wolf v. Ramseys (00-CV-1187) at 9-10.

Last, but not least, the Ramseys misapply the decision in Nix v. Cox

Enterprises, Inc., 247 Ga. App. 689, (2001), incorrectly claiming that

Harcrow has been "distinguished" and "limited" by the Georgia Supreme

Court. As this Court can see from the following holding in Nix, there is no

distinction being made to the spatial location of the juxtaposed statements

giving rise to libelous imputations and inferences. The only thing that

matters, according to the Nix court, is that there be some unexplained

relationship between the between the statements to allow a reasonable reader

to draw a defamatory inference. As the Nix court stated:

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.

Nix v. Cox Enterprises, Inc., 247 Ga. App. 689, (2001).

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?

Dated: July 30, 2002.

Respectfully submitted,

_________________________
DARNAY HOFFMAN
210 West 70th Street
New York, NY 10023
(212) 712-2766
fx: (212) 496-8676

Attorney for Plaintiff-Appellant

You are suing the Ramseys on behalf of Chris Wolf because, according to YOU, they say HE killed JonBenét.

I read their book and I don't see one place where they accuse either of being the actual killer. They correctly state that they were under the umbrella of suspicion at some time - - but there was NO accusation of either - - and you say they accuse BOTH?

I wasn't even aware LHP knew the housekeeper, never mind that they were thought to be in this together!

NYL wants to prove the Ramseys killed their daughter. I think he is libeling them with this lawsuit but it seems that libel is protected by law.

When NYL can't do this - - can't prove the Ramseys are involved at all - - what should HIS punishment be for hosting this sideshow?

It just isn't right.

No - - what happened was that the cops asked who had keys to the house, who had financial problems, and Patsy couldn't help but think about those issues - - and -- - gosh and golly gee - - LHP was on both those lists - - with others.
Patsy said - - not in effect but in FACT - - that LHP had access tot he house and needed money.

So LHP was investigated as a suspect. No one accused her of the murder.

NYL - - you are twisting things so you will never see straight. Just stop.

The Ramseys then conclude the matter of Linda Hoffmann-Pugh’s fate by leaving it entirely up in the
air, never to be referred to again in their book, with the statement that

“The police tell us they will arrange for the Ft. Lupon 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.”
(DOI at p. 20)

Given the public’s extensive knowledge of the existence of a ransom note from reading the
defendants’ book, a court might easily conclude that a fair reading of these statements could lead
the general reader (and a jury) to believe that the defendants’ intended to convey the impression
that Linda Hoffmann-Pugh had at least kidnapped their daughter, if not actually murdered JonBenet
Ramsey.
What the Ramseys fail to tell the reader is that Linda Hoffmann-Pugh was immediately cleared by the
police and later appeared before a Boulder grand jury as a prosecution witness. Nowhere in their book
do they mention this fact. Clearly, they want the reader to draw the inevitable conclusion that Linda
Hoffmann-Pugh may have been involved in the kidnapping, if not murder, of their daughter and
remains a police suspect

Please direct me to the police statement where they indicate the housekeeper and her family were cleared? I have anxiously awaited that document. Bet LHP has as well.

Or have you evidence that the police told the Ramseys that the housekeeper and her family were cleared? Somehow that never "leaked" out.

Speaking of which - - I don't even remember the tabloids carrying THAT story.

HOUSEKEEPER CLEARED - - - nope I can't recall that ever being written.

This lawsuit is just wrong.

And NYL's silence - while it may be for legal reasons - is maddening.