jameson's Links  Terms of Service  News  Chat  Forum Archives  Cord Photos  Email  

jameson's WebbSleuths

Subject: "Carnes, Keenan, Thomas"     Previous Topic | Next Topic
Printer-friendly copy    
Conferences JonBenét Forum - PROTECTED Topic #895
Reading Topic #895
Charter Member
13317 posts
Apr-10-03, 01:46 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
"Carnes, Keenan, Thomas"
   LAST EDITED ON Jun-10-03 AT 06:45 PM (EST)
Judge Carnes' Ruling is found here


The Bullet is this - - from page 90

"the weight of the evidence is more consistent with a theory that an intruder murdered JonBenet than it is with a theory that Mrs. Ramsey did so."

Statement issued by DA Mary Keenan:

April 7, 2003

I have carefully reviewed the Order of United States District Court Judge Julie Carnes in the civil case of Wolf v. John Ramsey and Patricia Ramsey. I agree with the Court's conclusion that "the weight of the evidence is more consistent with a theory that an intruder murdered JonBenet than it is with a theory that Mrs. Ramsey did so."

Although issued in the context of a civil case, the Court's ruling is a thoughtful and well reasoned decision based on the evidence that was presented by the parties in that case. It should be read in its entirety.

John and Patricia Ramsey have been the focus of an exhaustive investigation with regard to the murder of their daughter, JonBenet, for more than six years. People charged with a crime are presumed to be innocent until proven guilty in court. Since Mr. and Mrs. Ramsey have not even been charged, much less convicted, they must be presumed innocent and must be treated accordingly.

For several months, my office has been investigating new and other unpursued leads, most of which involve the possibility that an intruder committed this crime. We are proceeding with the full cooperation of the Ramseys, Detective Lou Smit, and the Boulder Police Department. We are all focused on the apprehension and successful
prosecution of the killer of JonBenet.

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top

Conferences | Topics | Previous Topic | Next Topic
Charter Member
13317 posts
Apr-12-03, 04:29 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
1. "Response to all BORG atacks"
In response to message #0
   "Since Mr. and Mrs. Ramsey have not even been charged, much less convicted, they must be presumed innocent and must be treated accordingly." - DA Mary Keenan

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:20 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
2. "Carnes text"
In response to message #1
   Page 01







This case is presently before the Court on defendants' motion for summary judgment <67>;
defendants' motion in limine to exclude the testimony of Cina Wong and Gideon Epstein <68>;
and defendants' motion for oral argument <79> ,1 The Court has reviewed the record and the
arguments of the parties and, for the reasons set out below, concludes that defendants'
motion for summary judgment <67> should be GRANTED; defendants' motion to exclude the
testimony of Cina Wong and Gideon Epstein <68> should be GRANTED as to Ms. Wong and
GRANTED in part and DENIED in part as to Mr. Epstein; and defendants' motion for oral
argument <79> should be DENIED.


1 The Court has addressed, by separate Order, movant Steven Thomas's motion for a
protective order <94>; movant City of Boulder's motion for oral argument <105>; and movant
City of Boulder's motion for a protective order <106>.

Page 02


This diversity case is one of the many civil suits that arose in the wake of the
widely-publicized and unsolved murder of six year-old JonBenet Ramsey in Boulder,
Colorado, on December 26, 1996. Plaintiff Robert Christian Wolf is a Boulder, Colorado,
resident who was named by defendants, JonBenet's parents, on national television and in
their book about their daughter's murder, The Death of Innocence: The Untold Story of
JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth (hereinafter
referred to as the "Book"), as a potential suspect in JonBenet's death. Plaintiff claims that, to
the extent defendants expressed an opinion that he might have killed their daughter,
defendants knew such a statement to be untrue because defendant Patsy Ramsey killed her
daughter and John Ramsey assisted her in covering up the crime.

The Court draws the undisputed facts from "Defendants' Statement of Undisputed Material
Facts" ("SMF") <67> and "Plaintiff's Response to Defendants' Statement of Material Facts"
(PSMF 67 ) , in which plaintiff does not dispute the overwhelming majority of defendants'
factual allegations. When plaintiff has disputed a specific fact and pointed to evidence in the
record that supports its version of events, the Court has viewed all evidence and factual
inferences in the light most favorable to plaintiff, as required on a defendant's motion for

Page 03

judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone,
Inc., 989 F.2d 465, 469 (11 th Cir. 1993). In addition, the Court has reviewed plaintiff's
separate statements of disputed material facts <88> ("PSDMF"), which consist, for the most
part, of a restatement of theories espoused by former Boulder Police Detective Steven
Thomas 2, (PSDMF 44-75) , and of a lengthy recounting of statements previously made by
defendants, accompanied by editorial comments suggesting such statements to be
untruthful, but without an explanation or evidence for such an assessment. (PSDMF 103 117,
120-249, 250-261.) 3 When the Court could discern a material factual dispute from this
pleading, the Court has drawn all


2 Steven Thomas is a former Boulder Police Detective who was assigned, from January
1997 through June 1998, to investigate JonBenet's murder. He has co-authored a book
entitled JonBenet: Inside the Ramsey Murder Investigation, published in 2000. He professes
to believe that Mrs. Ramsey wrote the ransom note found at the crime scene and murdered
her daughter. (PSDMF 6.)

3 The actual title of plaintiff's pleading is "Plaintiff's Statement of Material Facts To Which
There Are no General Issues To Be Tried" <88>. On September 30, 2002, defendants filed a
"Notice of Objection" to this pleading, correctly noting that Local Rule 56.1 (B) (2) directs a
respondent to file a statement of material facts about "which the respondent contends there
exists a genuine issue to be tried." (See Notice of Objection <92> at 2.) In a response filed on
October 9, 2002, plaintiff acknowledges that he mislabeled the pleading and that it properly
should read "Plaintiff's Statement of Material Facts to Which There Are General Issues To Be
Tried." (See PI.'s Resp. To Defs.' Not. Of Objection" <95> at 2.)

Page 04

inferences in a light most favorable to plaintiff. Accordingly, the following facts are either not
disputed or are viewed in the light most favorable to plaintiff.

I The Timeline of the Crime and the Crime Scene

Sometime on the night of December 25 or the early morning of December 26, 1996,
JonBenet Ramsey was murdered. (SMF 2.) JonBenet's body was found in the basement of
defendant's home. (SMF 5; PSMF 5. ) Defendants have never been charged, arrested, or
indicted for any offense in connection with the murder of JonBenet, and they deny any
involvement her her death, although they have been under an "umbrella of suspicion" from
almost the beginning of the murder investigation. (SMF 6 -7 ; PSMF 6-7.)

On the night of December 25, 1996 the Ramsey family attended a Christmas party at the
home of their friends Fleet and Priscilla White. ( SMF 12; PSMF 12. ) Nothing
out-of-the-ordinary occurred at the party and the Ramsey family appeared happy. (SMF 13;
PSMF 13.) On the drive home from the party, JonBenet and her brother Burke fell asleep in
the car. Defendants put the children to bed when they returned home and then went to bed
soon there after. (SMF 13; PSMF 13.) The family planned to rise early the following morning
because they were to fly to Charlevoix, Michigan for a family vacation. (SMF 13; PSMF 13. )

Page 05

JonBenet and Burke's bedrooms were located on the second floor of the Ramsey home.
There was also an empty guest bedroom on the second floor, located atop the garage.
Defendants' bedroom was located on the third floor of the Ramsey home in a converted attic
space. The home also contained a basement. (SMF 14; PSMF 14.) There were two stairwells
leading from the second floor to the ground floor level. The back stairwell led into the kitchen,
where there was a butler door that led into the basement.

Defendants claim they were not awakened during the night. A neighbor who lived across, the
street from defendants' home, however, reported that she heard a scream during the early
morning of December 26, 1996. Experiments have demonstrated that the vent from the
basement may have amplified the scream so that it could have been heard outside of the
house, but not three stories up, in defendants' bedroom. ( SMF 148 ; PSMF 148.) The
following morning, defendants assert they woke around 5:30 a.m. and proceeded to get ready
for their trip. While Mr. Ramsey took a shower, Mrs. Ramsey put back on the same outfit she
had on the night before and reapplied her makeup. (SMF I5.) Mrs. Ramsey then went down
the backstairs towards the second floor, then the spiral stairs to the ground floor, where, on a
step near the bottom of the stairs, she discovered a handwritten note on three sheets of
paper that indicated JonBenet had been kidnapped (the "Ransom Note") . ( SMF 16.)

Page 06

Plaintiff, however, contends that Mrs. Ramsey did not go to sleep the night of December 25,
but instead killed her daughter and spent the rest of the night covering her crime, as
evidenced by the fact she was wearing the same outfit the following morning, ( PSMF 15,) He
further posits that Mrs, Ramsey authored the Ransom Note in an attempt to stage a crime
scene to make it appear as if an intruder had entered their home. (PSMF 16; PSDMF 38 39. )
Plaintiff theorizes that, at some point in the night, JonBenet awoke after wetting her bed 4 and
upon learning of the bed-wetting, Mrs. Ramsey grew so angry that an "explosive encounter in
the child's bathroom" occurred, during which tirade, Mrs. Ramsey "slammed" JonBenet's
head against "a hard surface, such as the edge of the tub, inflicting a mortal head wound."
(PSDMF 45, 47.) Plaintiff has provided no evidence for this particular theory. 5


4 Crime scene photos taken the following morning do not indicate that JonBenet's bed was
wet or suggest that the sheets to the bed had been changed. (Defs.' Exs. 56-58 attach. To
Defs.' Summ. J. Mot.) Urine stains, however, were reported to have been found on
JonBenet's underwear and leggings that she was wearing when her body was discovered.
(See Coroner's Report at 2.) Thus, at some point after going to bed, but before being
murdered, JonBenet urinated in her clothing. The evidence does not indicate whether this
occurred in her bedroom, the basement, or during the route between the two rooms.

5 Plaintiff offers evidence, primarily hand-writing analyses, that plaintiff alleges to be evidence
that Mrs. Ramsey wrote the Ransom Note. The above theory is merely speculation by plaintiff
as to what might have motivated Mrs. Ramsey to act so violently toward her daughter.

Page 07

Plaintiff further contends, based again solely on Mr. Thomas's speculation, that "Mrs. Ramsey
thought JonBenet was dead, but in fact she was unconscious with her heart still beating." (
PSDMF 47.) Mr. Thomas then surmises that " (i]t was that critical moment in which she had
to either call for help or find an alternative explanation for her daughter's death." (PSDMF 48. )
Plaintiff then speculates that Mrs. Ramsey chose the latter route and spent the remainder of
the night staging an elaborate coverup of the incident. 6

Specifically, plaintiff theorizes that, with Mr. Ramsey and Burke still asleep, Mrs. Ramsey
moved the body of JonBenet to the basement, returned upstairs to draft the Ransom Note,
then returned to the basement where she "could have seen--perhaps by


6 Relying solely on the testimony of Mr. Thomas, who has no apparent expertise as a medical
examiner, plaintiff fixes the time of death at around one a. m. "suggested by the digestion rate
of pineapple found in the child's stomach." (PSDMF 47.) The coroner's report does indicate
that a vegetable or fruit matter consistent with pineapple was found in JonBenet's stomach
during the autopsy. (Boulder Coroner Report at 6.) The report, however, does not establish a
time of death based on the digestion rate of the unidentified matter.

Plaintiff also theorizes, based on the presence of the unidentified matter in JonBenet's
stomach that, contrary to Mrs. Ramsey's testimony, she was up during the night and fed
JonBenet the pineapple. (PSDMF 45.) There is no evidence in the record that indicates when
JonBenet ate the pineapple. Defendants state they did not feed JonBenet pineapple upon
returning home from the White's party that evening. (SMF 13.) Mr. White does not recall if
pineapple was served at his dinner party on December 25, 1996. (F. White Dep. at 202.)

Page 08

detecting a faint heartbeat or a sound or slight rn0vement--that although completely
unconscious, JonBenet was not dead." ( PSDMF 49-50.) In Mr. Thomas's scenario then,
rather than being grateful that her child was alive, Mrs. Ramsey nevertheless decided to finish
the job off by fashioning a garrote from one of her paintbrushes, looping the cord around the
girl's neck, and then choking JonBenet to death. (PSDMF 51-52.) Plaintiff notes that the fact
JonBenet was "choked from behind" is consistent with the murder being committed by
someone who knew JonBenet and did not want to look at her face as he or she killed her.

After murdering her child and staging the crime, plaintiff opines that, to cover her tracks, Mrs.
Ramsey must have taken the items she used in the staging out of the house, "perhaps
dropping them into a nearby storm sewer or among Christmas debris and wrappings in a
neighbor's trash can." (PSDMF 53-54.) Indeed, the sources for the duct tape and cord used in
the crime were never located, nor sourced, 7 to defendants' home. Plaintiff claims that Mrs.
Ramsey next placed the Ransom Note in a place "where she would be sure to 'find' it."
(PDSMF 53.)


7 The word "sourced" is used by the parties as a verb. When a sentence indicates that a
particular item was not "sourced" to the Ramsey home, it means that there is no evidence
that those items were ever in the Ramsey home at any time before the murder.

Page 09

Mrs. Ramsey disputes the above recitation of facts. She claims that, upon waking, she put
back on the same clothes she had on the night before and applied her makeup. She then
states she went downstairs to prepare for their departure on the family trip. ( SMF 17 . ) As
she descended the back stairwell, she discovered the Ransom Note and read only those few
lines stating that JonBenet was kidnapped, but "safe and unharmed," and demanding
$118,000 for her return. (SMF 17; PSMF 17.) Mrs. Ramsey immediately screamed and
proceeded to check JonBenet' s room, which was empty. (SMF 18; PSMF 18.) After hearing
Mrs. Ramsey's scream, Mr. Ramsey ran downstairs and met Mrs. Ramsey in the stairwell.
Together, they checked on their son who appeared to be asleep in his room. (SMF 18; PSMF
18.) Mr. Ramsey then went downstairs to read the Ransom Note, while Mrs. Ramsey called
the police, informing them that her child had been kidnapped. (SMF 19; PSMF 19.) In addition
to calling the police, defendants called several friends to their house, including Fleet and
Priscilla White, who promptly came to the defendants' home. (SMF 20; PSMF 20.) 8


8 Defendants did not heed the warning in the letter that stated:

The two gentlemen watching over your daughter do not particularly like you so I advise you
not to provoke them. Speaking to anyone about your situation, such as Police, F.B.I., etc, will
result in your daughter being beheaded. If we catch you talking to a stray dog, she dies. If you

Page 10

Plaintiff contends Mr. Ramsey probably first grew suspicious while reading the Ransom Note
that morning, which surmise is again based solely on the opinion of Mr. Thomas. (PSDMF 56.
) Plaintiff speculates that upon examining the Ransom Note, Mr. Ramsey "must have seen
his wife's writing mannerisms allover it, everything but her signature." (PSDMF , 56.) Upon
determining that his wife was involved in JonBenet's disappearance, plaintiff surmises that
Mr. Ramsey chose to protect his wife, rather than to acilitate the capture of his daughter's
murderer. (PSDMF 57.) Mr. Ramsey asserts, however, that he never once suspected his
wife to be involved in the crime. (PSDMF 254-255.) 9


authorities, she dies.

(Ransom Letter, attach. as pl.'s Ex. 16 to J. Ramsey Dep.)

9 Plaintiff seeks to introduce the testimony of Linda Hoffman-Pugh, who worked for the family
as a cleaning woman for nearly fourteen months prior to JonBenet' s death, who asserts the
Ramseys had a troubled marriage. (PSDMF 4.) Ms. Hoffman-Pugh states that Mr. Ramsey
"berated" Mrs. Ramsey for being "a lousy homemaker and cook" shortly before the murder
and that the couple "never once demonstrated any affection for each other, physical or
otherwise, in front of ." (PSDMF 95-98.) Defendants strongly deny any such marital
problems. (See, e.g., J. Ramsey Dep. at 52; see also F. White Dep. at 170 (stating he
perceived no marital problems between defendants).) Defendants have objected to such
testimony as inadmissible, based on a lack of foundation and general irrelevance. (Defs.' Not.
Of Objection to Exhibits <91> at 5.) Plaintiff responds that Ms. Hoffman-Pugh's testimony is
relevant on a point placed in issue by defendants through their assertion that no marital
problems existed between them. (See Pl.'s Resp. To Defs.' Not. Of Objection to Exhibits <96>
at 7.)

The Court will consider Ms. Hoffman-Pugh's testimony.

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:21 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
3. "RE: Carnes text"
In response to message #2
   Page 11

A series of events transpired that severely compromised the crime scene. Office Rick French
of the Boulder Police arrived at the defendants' home in a marked car a few minutes before
six a.m., followed soon after by Detective Linda Arndt. (SMF 21; PSMF 21.) Contrary to
normal protocol, the police did not seal off the defendants' home, with the sole exception
being the interior of JonBenet's bedroom. In other words, any person in the Ramsey house
could, and often did, move freely throughout the home (SMF 21; PSMF 22.)

The Whites arrived at defendant's home at approximately 6:00 a.m., and Mr. White, alone,
searched the basement within fifteen minutes of arrival. (SMF 23; PSMF 23.) Mr. White
testified that when he began his search, the lights were already on in the basement and the
door in the hallway leading to the basement "wine cellar" room was opened. (SMF 25; PSMF
25; White Dep. at 147, 151-52.) He further testified that a window in the basement playroom
was broken. (SMF 26; PSMF 26; White Dep. at 28, 152


The Court notes, however, that although plaintiff presents such evidence in support of his
theory that Mrs. Ramsey was depressed and that her depression contributed to her state of
mind on the night of December 25, such evidence, if accepted as true, cuts against plaintiff's
theory that Mr. Ramsey assisted his wife in the "cover-up" of JonBenet's murder. In other
words, if the marriage was shaky, it arguably seems less likely that the innocent spouse
would help the guilty spouse cover up her murder of their child.

10 Although referred to as the "wine cellar," the room was actually used for storage and was
"a dark, dirty area" with mold growing on the floor. (F. White Dep. at 228.)

Page 12

& 154.) Under the broken window, Mr. White states there was a suitcase, along with a broken
shard of glass. (SMF 27; PSMF 27; White Dep. at 28-29, 156-59, & 265.) He does not,
however, remember whether the window was opened or closed. 11 ( SMF 28 ; PSMF 28;
White Dep. at 153.) Mr. White also opened the door to the wine cellar room, but he could not
see anything inside because it was dark and he could not find the light switch. ( SMF 29 ;
PSMF 29; White Dep. at 159-61.)

Later that same morning, at around ten a.m., Mr. Ramsey also searched the basement area
alone. He testified he found the broken window partially open. (SMF 30; PSMF 30; J. Ramsey
Dep. at 30.) Under the broken window, Mr. Ramsey also saw the same suitcase seen earlier
by Mr. White. Mr. Ramsey testified that the suitcase belonged to his family, but was normally
stored in a different place. (SMF 31; PSMF 31; J. Ramsey Dep. at 17. ) Mr. Ramsey then
returned upstairs. Plaintiff theorizes that Mr. Ramsey actually found JonBenet's body at this
time. (PSDMF 57. )

Later that afternoon, Mr. Ramsey and Mr. White together returned to the basement at the
suggestion of the Boulder Police. (SMF 32; PSMF 32; White Dep. at 212-217; J. Ramsey
Dep. at 17 20.) During this joint search of the basement, the men first


11 Mr. Ramsey testified that the window had been broken the previous summer. (SMF 30;
PSMF 30; J. Ramsey Aff. , 30.)

Page 13

examined the playroom and observed the broken window. (SMF 33; PSMF 33.) The men next
searched a shower stall located in the basement. {SMF 34; PSMF 34.} Mr. Ramsey then
noticed a heavy fireplace grate propped in front of a closet and Mr. White moved the grate so
the closet could be searched. (SMF 35: PSMF 35.) Upon finding nothing unusual in the closet,
the men proceeded to the wine cellar room. Mr. Ramsey entered the room first, turned on the
light and, upon discovery of JonBenet's dead body, he exclaimed "Oh my God, my baby."
(SMF 36, 37: PSMF 36, 37; White Dep. at 162-63, 193-93.)

JonBenet had black duct tape covering her mouth, a cord around her neck that was attached
to a wooden garrote, and her hands were bound over her head in front of her: she was
covered by a light-colored blanket. ( SMF 38: PSMF 38.) A "Barbie" nightgown belonging to
JonBenet was also found in the wine cellar near her body. (SMF 149: PSMF 149.) JonBenet's
blood was found only on her body and the Barbie nightgown. (SMF 150; PSMF 150.) Mr.
Ramsey ripped the duct tape off JonBenet's mouth and attempted to untie her hands. {SMF
39; PSMF 39.} He then carried her body upstairs. {SMF 39: PSMF 39.} It was only upon the
discovery of JonBenet's body that the Boulder police began to secure properly the home as
the crime scene. (SMF 53: PSMF 53.)

Page 14

JonBenet's body was bound with complicated rope slipknots and a garrotte attached to her
body. (Defs.' Br. In Supp. Of Summ. J. <67> at 19; SMF163; PSMF 163.) The slipknots and the
garrote are both sophisticated bondage devices designed to give control to the user. (SMF
161, 164; PSMF 161, 164.) Evidence from these devices suggests they were made by
someone with expertise using rope and cords, which cords could not be found or "sourced"
within defendants' home. (SMF 169; PSMF 169.) The garrote consisted of a wooden handle
fashioned from the middle of a paintbrush, found in the paint tray in the boiler room. The end
of a nylon cord was tied to this wooden handle and, on the other end, was a loop with a
slipknot, with JonBenet's neck within the loop. (SMF 157-158; PSMF 157-15B.) The end
portion of the paintbrush used to construct the garrote was never found. (SMF 159; PSMF
159.) No evidence exists that either defendant knew how to tie such knots. (SMF 162; PSMF
162.) Further, fibers consistent with those of the cord used to make the slip knots and garrote
were found on JonBenet's bed. (SMF 16B; PSMF 16B.) Although plaintiff agrees the garrote is
the instrument used to murder JonBenet, he argues that the cord with which the wrists were
tied would not have bound a live child and is evidence of a staging. (PSDMF 51.)

The black duct tape used on JonBenet's mouth has also not been sourced to defendants.
(SMF 170; PSMF 170.) Both ends

Page 15

of the duct tape found on her were torn, indicating that it came from a roll of tape that had
been used before. (SMF 171; PSMF 171.) No similar duct tape was found in the house, nor is
there evidence that defendants ever used or owned such duct tape. (SMF 172; PSMF 172.)
Plaintiff also notes that the strip of duct tape found on JonBenet's mouth had a bloody
mucous on it and a "perfect set of child's lip prints, which did not indicate a tongue impression
or resistance." (PSDMF 53.) Animal hair, alleged to be from a beaver, was found on the duct
tape. (SMF 183; PSMF 183.) Nothing in defendants' home matches the hair. (SMF 183; PSMF
183. ) Dark animal hairs were found on JonBenet's hands that also have not been matched to
anything in defendants' home. (SMF 184; PSMF 184.)

Several recently-made unidentified shoeprints were found in the basement, imprinted in mold
growing on the basement floor. (SMF 151; PSMF 151.) In particular, a shoeprint of a "HI-TEC"
brand mark on the sole of a shoe was found. (SMF 152; PSMF 152.) Defendants do not own
any "HI-TEC" brand shoes, and none of the shoes found in their home match the shoeprint
marks. ( SMF 153; PSMF 153.) Another partial shoeprint was found near where JonBenet's
body was found. ( SMF 155; PSMF 155. ) This shoeprint left only a partial logo. The owner of
the "HI-TEC" shoe that made the shoeprints at the murder scene has never been identified.
(SMF 154, 155; PSMF 154, 155.) In addition, on

Page 16

the wine-cellar door, there is a palmprint that does not match either of defendants' palmprints.
(SMF 156; PSMF 156.) The individual to whom it belongs had not yet been identified. (SMF
156; PSMF 156.)

Finally, items were left behind that defendants assert they did not own. (Defs.' Br. In Supp. Of
Summ. J. (67] at 18-19.) A baseball bat not owned by the Ramseys found on the north side of
the house has fibers consistent with fibers found in the carpet in the basement where
JonBenet's body was found. (SMF 185; PSMF 185. ) A rope was found inside a brown paper
sack in the guest bedroom of defendants' home, neither of which belonged to defendants.
(SMF 181; PSMF 181.) Small pieces of the brown sack material were found in the
"vacuuming" of JonBenet's bed and in the body bag that was used to transport her body.
(SMF 181; PSMF 181. ) Brown cotton fibers on JonBenet's body, the paintbrush, the duct
tape and on the ligature were not sourced and do not match anything in the Ramsey home.
(SMF 181; PSMF 181. )

The autopsy of JonBenet's body was conducted on December 27, 1996 by the Boulder
County Coroner's Office. (SMF 40; PSMF 40. ) The cause of JonBenet's death was asphyxia
by strangulation associated with craniocerebral trauma. (SMF 41; PSMF 41.) The autopsy
report supports the conclusion that she was alive before she was asphyxiated by
strangulation and that she fought her

Page 17

attacker in some manner. (SMF 42-43, 46, 48; PSMF 42-43, 46, 48. ) Evidence gathered
during the autopsy is consistent with the inference that she struggled to remove the garrote
from her neck. (SMF 44; PSMF 44.) Moreover, both parties agree the autopsy report reveals
injury to JonBenet's genitalia consistent with a sexual assault shortly before her death. (SMF
48; PSMF 48.) 12 Although no head injury was visible when she was first discovered, the
autopsy revealed that she received a severe blow to her head shortly before or around the
time of the murder. (SMF 51; PSMF 51. See also Report of Michael Doberson, M.D., Ph.D. at
6(C) attach as Ex. 3 to Defs . ' Ex. Vol. I, Part A (stating the "presence of hemorrhage does
indicated that the victim was alive when she sustained the head injury, however the relative
small amount of subdural hemorrhage indicates that the injury occurred in the perimortem
(close to death)13 period.").)

The coroner took nail clippings from JonBenet. Male DNA was found under JonBenet's right
hand fingernail that does not match that of any Ramsey. (SMF 174; PSMF 174.) Defendants


12 The bleeding in JonBenet's genital area indicates she was alive when she was assaulted.
(SMF 48; PSMF 48.) Her hymen was torn and material consistent with wooden shards from
the paintbrush used to make the garrote were found in her vagina. (SMF 48-49; PMSF 48-49.)
No evidence, however, suggests that she was the victim of chronic sexual abuse. (SMF 50;
PSMF 50.)

1] The Court has not been able to determine from the record how close to death the
perimortem period would have been.

Page 18

assert that male DNA was found under JonBenet's left hand fingernail, which also does not
match that of any Ramsey. (SMF 173.) In addition, male DNA was found in JonBenet's
underwear that does not match that of any Ramsey and has not yet been sourced. (SMF 175,
178; PSMF 175, 178.) The Boulder Police Department has yet to identify the male whose
DNA was found at the crime scene. ( SMF 177; PSMF 177.) Finally, a Caucasian "pubic or
auxiliary" hair was found on the blanket covering JonBenet's body. (SMF 179; PSMF 179.)
The hair does not match that of any Ramsey and has not been sourced. (SMF 180; PSMF

Finally, the coroner's report notes injuries on the right side of JonBenet's face and left lower
back. While defendants assert that these injuries are consistent with the use of a stun gun,
plaintiff notes that the coroner's report does not expressly state the injuries were the result of
such an instrument. (SMF 47; PSMF 47. ) Dr. Michael Doberson, a forensic pathologist
retained by defendants who examined the Boulder Coroner's autopsy report and autopsy
photos, concludes the injuries to "the right side of the face as well as on the lower left back
are patterned injuries most consistent with the application of a stun gun." (Report of Michael
Doberson, M.D., Ph.D. at 5(A), attach. as Ex. 3 to Defs.' Ex. Vol. I, Part A.)

Page 19

II. The Ransom Note

The Ransom Note is believed by all parties to have been written by the killer or an accomplice
of the killer and remains an extremely important clue in the murder investigation. (PSDMF 14.)
Plaintiff claims that the single best piece of evidence that ties Mrs. Ramsey to the crime is the
Ransom Note. (Id. ) Mrs. Ramsey, however, flatly denies that she had anything to do with the
note's creation. (SMF 189; PSMF 189.) Due to the pivotal role the Ransom Note plays in
plaintiffs' allegation that Mrs. Ramsey was the murderer of her child, the facts surrounding the
Ransom Note will be discussed in detail.

The Ransom Note was quite long, and in fact is one of the longest ransom notes in the
history of kidnapping cases. (PSDMF 17.) This fact is important because the longer a
document is, the harder it becomes to disguise one's handwriting. (PSDMF . 19. ) The
Ransom Note is addressed to Mr. Ramsey alone and purports to be written by a group of
individuals who "represent a small foreign faction" that have kidnapped defendants' daughter
and seek $118,000 for her safe return. The Ransom Note was signed "S.B.T.C.", after the
salutation "Victory!" (Ransom Note at 3.) The author of the Ransom Note instructs Mr.
Ramsey to "se that good southern common sense," an obviously inaccurate
reference as Mr. Ramsey was originally from Michigan, whereas Mrs. Ramsey was originally
from West Virginia. (Id. )

Page 20

In addition, the Ransom Note was drafted on paper taken from the middle of a pad of paper
located at defendants' home and with a pen found at defendants' home. Additional sheets
were missing from the pad and were never located at defendants' home. The pen used to
write the Ransom Note was sourced to defendants' home and found placed back in its
normal place by the phone. Finally, there was another page in the pad that had written on it
"Mr. and Mrs. I," which many believe to have been an early "false start" of the Ransom Note.
(PSDMF 51.)

Both parties agree that the Ransom Note is not an ideal specimen for handwriting analysis,
primarily due to the type of writing instrument, a broad fiber-tip pen, used to draft the note.
This type of pen distorts and masks fine details to an extent not achievable by other types of
pen, as for example a ball point pen. . (SMF 243; PSMF 243.) In addition, the stroke direction
used to construct certain letters and subtle handprinting features, such as hesitations and
pen lifts, are difficult to ascertain because of the pen used in the Ransom Note. (SMF 244;
PSMF 244. ) Finally, the handwriting in the original Ransom Note showed consistency
throughout the entire writing. (SMF 246; PSMF 246. ) One of the most common means to
disguise one's handwriting is to attempt to make the script erratic throughout the text. In sum,
for the above reasons, the Ransom Note is not an ideal

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:21 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
4. "RE: Carnes text"
In response to message #3
   Page 21

specimen for handwriting analysis. Nevertheless, the writer does not appear to have been
trying to disguise his or her handwriting.

During the investigation, the Boulder Police Department and Boulder County District
Attorney's Office consulted at least six handwriting experts. (SMF 1 191; PSMF 1 191.) All of
these experts consulted the original Ransom Note and original handwriting exemplars from
Mrs. Ramsey. (SMF 205; PSMF , 205.) Four of these experts were hired by the police and
two were hired by defendants. (SMF , 191; PSMF , 191.) All six experts agreed that Mr.
Ramsey could be eliminated as the author of the Ransom Note. (SMF 194; PSMF 194.) None
of the six consulted experts identified Mrs. Ramsey as the author of the Ransom Note. (SMF
195; PSMF 195.) Rather, the experts' consensus was that she "probably did not" write the
Ransom Note. (SMF , 196; PSMF 196.)14 On a scale of one to five, with five being elimination


14 Chet Ubowski of the Colorado Bureau of Investigation concluded that the evidence fell
short of that needed to support a conclusion that Mrs. Ramsey wrote the note. (SMF 197;
PSMF , 197.) Leonard Speckin, a private forensic document examiner, concluded that
differences between the writing of Mrs. Ramsey's handwriting and the author of the Ransom
Note prevented him from identifying Mrs. Ramsey as the author of the Ransom Note, but he
was unable to eliminate her. (SMF 198; PSMF 198.) Edwin Alford, a private forensic
document examiner, states the evidence fell short of that needed to support a conclusion that
Mrs. Ramsey wrote the note. (SMF 197; PSMF 197.) Richard Dusick of the U.S. Secret
Service concluded that there was "no evidence to indicate that Patsy Ramsey executed any
of the questioned material appearing on the ansom ote." (SMF 200; PSMF 200.) Lloyd
Cunningham, a private forensic document examiner hired by defendants, concluded that
there were no

Page 22

the author of the Ransom Note, the experts placed Mrs. Ramsey at a 4.5 or a 4.0. (SMF 203;
PSMF 203.) The experts described the chance of Mrs. Ramsey being the author of the
Ransom Note as "very low." (SMF . 204; PSMF 1 204.) The two experts hired by defendants
both assert that this evidence strongly suggests that Mrs. Ramsey did not write the Note.
(SMF 254.)

Plaintiff, however, asserts that his retained experts believe Mrs. Ramsey to be the author of
the Ransom Note. Indeed, Gideon Epstein and Cina Wong, the handwriting experts proffered
by plaintiff, opine that they are "100 percent certain" Mrs. Ramsey wrote the Ransom Note.
(SMF 256: PSMF 256; PSDMF 1-2.) In contrast to the experts relied upon by defendants and
by the Boulder Police Department, however, neither of these experts have ever seen or
examined the original Ransom Note. (SMF 256; PSMF 256.) In fact, Mr. Epstein and Ms.
Wong do not know what "generation" copy of the Ransom Note they examined. (SMF , 257;
PSMF , 257.) Ms. Wong received her copy of the Ransom Note and certain writings alleged to
be historical writings of Mrs. Ramsey from the tabloid, The National Enquirer. (SMF 258;
PSMF 258.) Although it is widely considered "very important" to consult the


significant similar individual characteristics shared by the handwriting of Mrs. Ramsey and the
author of the Ransom Note, but there were many significant differences between the
handwritings. (SMF' 201; PSMF , 201.) Finally, Howard Rile concluded that Mrs. Ramsey was
between "probably not" and "elimination," on a scale of whether she wrote the Ransom Note.
(SMF 202; PSMF 202.)

Page 23

original versions of writings when engaging in handwriting analysis, plaintiff asserts it was
impossible for his experts to consult such materials because defendants failed to provide him
with original exemplars.15 (PSMF 259-260.) Mr. Epstein, however, consulted with some of his
peers, who concur with his analysis.16 Defendants' experts base their conclusion that Mrs.
Ramsey is not the author of the Ransom Note on the "numerous significant dissimilarities"
between the individual characteristics of Mrs. Ramsey's handprinting and of that used in the
Ransom Note. (SMF 247.) For example, defendants asserts Mrs. Ramsey's written letter "u"
consistently differs from the way the same letter is written throughout the Ransom Note. (


15 The Court is unaware that plaintiff ever sought to compel Mrs. Ramsey to produce original
exemplars. Presumably, the original Ransom Note is in the custody of the police.

16 Specifically, Mr. Epstein asserts that he consulted two former FBI forensic document
examiners, Larry F. Zeigler and Richard Williams, as well as Donald L. Lacy, David
Lieberman, and Thomas Miller. (PSDMF 3-4, 33-34, 35-36A.) Defendants have objected to
plaintiff's use of affidavits from Mr. Liebman, Mr. Lacy, Mr. Zeigler, and Mr. Williams, as well
as an anonymous handwriting report, to support plaintiff's opposition to defendants' motion to
exclude the testimony of Ms. Wong and Mr. Esptein. (See Notice of Objections to PI.'s
Exhibits <91> at 2.) Defendants assert that these expert reports were not disclosed pursuant
to Federal Rule of Civil Procedure 26(a) (2). (See id.) Plaintiff has responded with excerpts
from a letter drafted by defendants' attorney which reveal that he was aware of the fact that
plaintiff had secured opinions for Mr. Liebman, Mr. Lacy and Mr. Zeigler with regard to the
handwriting at issue in the instant litigation. (See PI.'s Reap. To Defs.' Not. Of Objections to
Pl.' a Exhibits <96> at 3-4.)

Page 24

248.) Plaintiff's experts responds that this variation may be due to a conscious effort by Mrs.
Ramsey to change her handwriting or to her heightened stress level. (PSMF 248.) In support
of their conclusion that Mrs. Ramsey authored the Ransom Note, plaintiff's experts assert
that there are similarities between letters found in the Ransom Note and exemplars and that
ihe:riote .contains proof reader marks 17 of the kind often used by newspaper reporters and
journalists. (PSDMF 41. ) Plaintiff also notes that Mrs. Ramsey was a journalism major in
college. (PSDMF 42.)

Other experts believe the Ransom Note may have been authored by other people. In addition
to Mrs. Ramsey, there were other individuals "under suspicion" who had their handwriting
analyzed and who were not eliminated as the possible author of the Ransom Note. (SMF 205;
PSMF 205.) For example, forensic document. examiner Lloyd Cunningham cannot eliminate
plaintiff as the author of the Ransom Note. (SMF 279; PSMF 279.) Plaintiff's exgirlfriend has
also testified that she was "struck by how the handwriting in the note resembled
own handwriting" and believes that he is the note's author. (J. Brungardt Aff. , 43. ) Further, to
the extent that the use of a single editing mark might suggest to plaintiff's experts that Mrs.
Ramsey was the


17 The "proof reader marks" to which plaintiff refers is actually a lone "carrot symbol" used in
one sentence where the word "not" had been left out and was later "added. (Ransom Note at

Page 25

author, given her bachelor's degree in journalism, one. should also note that plaintiff, himself,
has a Masters' degree in journalism. (Id. 13.)

III. The Investigation of the Murder

At the time of JonBenet's murder, the Boulder Police Department had limited experience in
conducting a murder investigation. (SMF 70; PSMF 70.) Commander Jon Eller was primarily
responsible for the investigation, which was his first murder investigation. (SMF 67; PSMF
67.) One lead detective assigned to the case, Steven Thomas, had no prior experience with a
murder investigation and had previously served as an undercover narcotics officer. (SMF 68;
PSMF 68.) Finally, the officer who took charge of the investigation in October 1997, Mark
Beckner, also had limited homicide experience. (SMF 69; PSMF , 69. )

Many mistakes were made during the course of the investigation. For example, a series of
events compromised the crime scene, as discussed supra. Moreover, the police did not
request to interview defendants separately on the day that JonBenet's body was found. (SMF
57; PSMF 57.) They did, however, question defendants jointly at various times on December
26, 27 and 28, and, soon thereafter .. began to focus the investigation on defendants as the
main subjects. (SMF 54, 71-72; PSMF 54, 71-72.) Pursuant to the FBI's suggestion that the

Page 26

Boulder Police publicly name defendants as subjects and apply intense media pressure to
them so that they would confess to the crime, the police released many statements that
implied defendants were guilty and were riot cooperating with police. (SMF 74-75; PSMF 74
-75.) In addition to official police releases, many individual officers also released information
about the investigation without official authorization, some of which disclosures were highly
confidential and potentially undermined the investigation.

During the course of the investigation, defendants signed over one hundred releases for
information requested by the police, and provided all evidence and information requested by
the police. (SMF 61; PSMF 61.) Upon request, within days after the murder and in the months
that followed, defendants provided the police' with historical handwriting samples and
supervised written exemplars. (SMF 55; PSMF 55.) Defendants also gave hair, including
pubic hair, and DNA samples to the police. (SMF 56, 60; PSMF 56, 60.) Despite widespread
criticism that defendants failed to cooperate in the murder investigation, defendants note that
they agreed, on at least three occasions, to be interviewed separately by representatives of
the police or the Boulder County District Attorney's Office. (SMF 62; PSMF 62.)

In March 1997, Andrew Louis Smit was hired by the Boulder District Attorney's Office due to
his extensive experience as a

Page 27

homicide investigator for thirty years. (SMF 94; PSMF , 94.) Detective Smit is widely
considered to be an expert investigator who has successfully cracked other child murder
investigations. (See, e.g., SMF , 94; PSMF , 94; Hunter Dep. at 46-47; Steven Thomas,
JonBenet: Inside the Ramsey Murder Investigation 167-169 (2001) .) During the course of his
tenure with the police department, Detective Smit became familiar with all aspects of the
murder investigation. (SMF 95-96; PSMF 95-96.) He resigned from the investigation at some
point in September 1998, however, because he felt that the Boulder Police Department
refused to investigate leads that pointed to an intruder as the murderer of JonBenet, and
instead insisted on focusing only on defendants as the culprits. (SMF 97, 101; PSMF , 97,
101.) Two other men, Detective Steve Ainsworth and Assistant District Attorney Trip. DeMuth,
who also believed the evidence pointed toward an intruder as the killer, were soon thereafter
removed from the investigation. (SMF 98 -100; 102; PSMF , 99-100; 102. )

In June 1998, the Boulder police presented their evidence to the Boulder County District
Attorney. (SMF 84; PSMF , 84.) At some point in. the summer of 1998, then-District Attorney
Alex Hunter decided to convene a grand jury to investigate the murder of JonBenet and
possibly bring charges. (SMF 86; PSMF 86.) On October 13, 1999, the grand jury was
discharged by District Attorney Hunter with no indictment issued. (SMF 91; PSMF 91.)

Page 28

The District Attorney, and all other prosecutors involved in the proceedings, believed at that
time that there was insufficient evidence to bring charges against any person, including
defendants, in connection with the murder. (SMF 91-92; PSMF 91-92.)

IV. Publicity Surrounding the Crime

Beginning on the morning of December 26, 1996, there has been and continues to be
considerable public interest and media attention devoted to JonBenet's murder and the
subsequent investigation into the crime. As discussed supra, the Boulder Police Department
utilized the press, in an attempt to "smoke out" JonBenet's killer. In addition to this intentional
use of the press, a number of leaks of confidential information, at various stages of the
murder investigation, served to hamper the ability of the Boulder Police Department to
conduct an effective investigation into crime. Finally, many people have attempted to
capitalize on and profit from the widespread interest in JonBenet's murder. Indeed, plaintiff
has attempted to gain a book deal and the chief theorist behind plaintiff's claims, former
Detective Steve Thomas, also wrote a book. Likewise, the defendants have written a book
about the murder, entitled The Death of Innocence: The Untold Story or JonBent?t' s Murder
and How Its Exploitation Compromised the Pursuit of Truth. ( SMF 8.) Defendants assert that
they wrote their book in response to

Page 29

media speculation that they were involved in their child's murder and to correct inaccurate
media reports. Plaintiff, in contrast, asserts that defendants' Book was authored in an attempt
to "escape prosecution for the murder of JonBenet." ( PSMF 8.) The Book sets forth
defendants' account of the investigation of their daughter's murder and their view that the
police did not adequately investigate several leads. (SMF 9; PSMF 9.) In the Book, defendants
promote the theory that an unknown intruder entered their home and murdered their daughter.
( SMF 2, 11.) Defendants state they believed when writing the Book, and believe now, that the
statements contained in the Book represent either truthful fact or sincere opinion. (SMF 9.)

Defendants' Book names five people, including plaintiff, whom defendants contend should be
further investigated. (SMF 328; PSMF 328.) For example, one lead mentioned is Michael
Helgoth, a man who committed suicide two months after the murder and one day after
District Attorney Hunter issued a statement that the authorities were narrowing their search
for the murderer of JonBenet Ramsey. (SMF 281; PSMF 281.)

Indeed, a stun gun was found near Mr. Helgoth's body, as well as boots with a "HI-TEC logo
like that left on the basement floor of defendants' home. (SMF 281: PSMF 281.) See
discussion supra at 15, 18.

Another lead mentioned is Gary Oliva, a transient with a history of child molestation, who was
seen in the Boulder area in

Page 30

December 1996, picked up his mail one block from the Ramsey home, and was present at a
memorial service for JonBenet. (SMF 282: PSMF 282.)

Another purported lead was Bill McReynolds, who portrayed Santa Claus at a Christmas
Party at defendants' home in December 1996, whose wife had written a play about a young
girl held captive in a basement, whose daughter had been kidnapped and sexually assaulted
twenty-two years to the day before JonBenet's death, and who had written a card to JonBenet
that was found in her trash can after the murder. (SMF 283: PSMF 283.)

Finally, another lead identified by Detective Smit was plaintiff, who in his estimation presented
too many "unanswered questions." (SMF 284: PSMF 284.) Defendants identified all of these
men, and others, in their book as possible suspects. (SMF 328; PSMF 328: Tbe Book at
165-168, 199-201, 215-216, & 310 312. ) In addition, the Book discusses, but does not name,
eight other leads. (SMF 328: PSMF 328.) In Chapter 33 of the Book, defendants present a
detailed profile of the murderer. The profile offered is that of a male ex-convict, aged 25-35,
who is familiar with and owns a stun gun. (SMF 329: PSMF 329.) The passage at issue from
the Ramsey book, that is the heart of the present libel claim, criticizes the Boulder Police
Department for failing to investigate these possible leads in the murder investigation. (SMF
180; PSMF , 180.)

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:22 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
5. "RE: Carnes text"
In response to message #4
   Page 31

In addition to authoring the Book, defendants have appeared on various news programs.
(PSDMF 105-118.) On March 24, 2000, defendants appeared on NBC's "Today Show," a
television broadcast in a segment taped in February 2000 with Katie Couric. ( SMF 330 ;
PSMF 330 . ) It is from this broadcast that plaintiff's slander claim arises., Defendants did not
have any influence or control over the visuals displayed when they spoke, were not told that a
photograph of plaintiff would be displayed during their appearance on the show, and were not
told before taping what specific questions would be posed to them during the taping. (SMF
331; PSMF 331.) In other words, defendants had no editorial control over how the interview
was edited or presented. ( SMF 332; PSMF 332.) During the interview, Mr. Ramsey stated

I can tell you when- when we first started looking at at one particular lead early on - my
reaction was This is it. This is the killer. And our investigator said Whoa, whoa, whoa.' He'd
say, 'Don't do a Boulder Police on me. Don't rush to conclusions' -

(Transcript of Interview attach. as Tab 38 to Defs.' Ex., Vol. 1; J. Ramsey Aff. 19.)

He claims that these statements were not in relation to plaintiff, but rather to Michael Helgoth,
18 although plaintiff's photograph was being superimposed on the telecast by NBC. ( SMF
335 ; 338. ) Plaintiff contends that the above


18 Mr. Helgoth was the suicide victim whose body was found near a stun gun and HI-TEC
boots. See, supra at 29.

Page 32

statement, however, was intended by defendants to relate to him. (PSMF 335, 338.)

For his part, plaintiff too has appeared before the media and profited from discussing and
critiquing the murder investigation. (SMF 292; PSMF 292.) In 1997, plaintiff voluntarily gave an
interview to Hard Copy, a syndicated television program, in which he claimed to be a suspect
in the murder of JonBenet and for which he received $5,000 compensation. (SMF 293; PSMF
293.) In addition, plaintiff discussed his status as a suspect with the news tabloid, The
National Enquirer, and received $250 for that interview. (SMF 294; PSMF 294.) In addition,
plaintiff provided information to Lawrence Schiller for use in his 1998 book about the murder,
entitled Perfect Murder, Perfect Town. In several passages, attributed to plaintiff, the latter
discusses his arrest and interrogation by the Boulder Police Department. (SMF 295-296;
PSMF 295-296.) 19

Plaintiff also attempted to capitalize on his association with the murder investigation through a
book deal. On plaintiff's computer was a letter dated March 2, 1999, addressed to David


19 In addition, sometime during or before 1998, plaintiff wrote a letter to FOX television
reporter Carol McKinley recounting his "interrogation as a suspect in the Jon Benet
Ramsey murder investigation." (SMF 292; PSMF 292.) In the letter, he claimed that John
Ramsey sexually abused JonBenet Ramsey, that the Ramseys' then-eleven year old son
may have killed JonBenet, and that Mr. Ramsey was a "Merchant of Death," responsible for
the murder of innocent women and children in third world countries. (SMF 292; PSMF 292.)

Page 33

Granger of Esquire magazine, discussing his status as a suspect in the murder and his
related media and print appearances. (SMF 298; PSMF 298.) The letter requests a "generous
fee" in return for plaintiff authoring a book about JonBenet's murder. (SMF 298; PSMF 298.)

Plaintiff's counsel Darnay Hoffman also became interested in the case early in the murder
investigation and has contributed to the continued media interest through the filing of various
lawsuits. In March 1997, Mr. Hoffman sent a letter to the Boulder County District Attorney Alex
Hunter suggesting that Charles Lindbergh had killed his child in a hoax kidnapping and that
one of the defendants had killed JonBenet in a similar type hoax. (SMF 339; PSMF 339.) In
May 1997, Mr. Hoffman sent Mr. Hunter a second letter in which Mr. Hoffman theorized that
Mrs. Ramsey killed her daughter, through a blow to the head, in a fit of rage caused by
unhappiness, depression and marital problems. ( SMF 340; PSMF , 340.) The Boulder
authorities did not take Mr. Hoffman's unsubstantiated theories seriously and considered
much of his submissions to be "off the wall." (SMF 341; PSMF 341.)

In the fall of 1997 Mr. Hoffman began to solicit the involvement of various handwriting experts,
claiming that, although prior expert reports given to the Colorado Bureau of Investigation
showed Mrs. Ramsey to be at the "very lowest end of the spectrum, i.e. there is little or no
basis for a match," it

Page 34

would be a "career move" for an expert to submit an affidavit for use by Mr. Hoffman. (SMF,
343; PSMF 343.) Indeed, forensic document examiners were eager to jump into the
high-profile investigation. In July 1997, Ms. Wong, now plaintiff's expert, had originally
contacted defendants' attorneys and offered to analyze the Ransom Note and point out
weaknesses in analysis by "Government handwriting experts." (SMF 342; PSMF 342. )
Defendants declined such an offer. In September 1998, Ms. Wong wrote District Attorney
Hunter, Assistant District Attorney Michael Kane, and Judge Roxanne Bailin, asking to testify
before the Grand Jury. (SMF 347; PSMF 347.) By letter dated January 20, 1999, Mr. Hunter
rejected the request, informing Ms. Wong that it was his opinion that she did not use
scientifically reliable methods, her testimony would be inadmissible, and that she lacked'
credibility. (SMF 348; PSMF 348.) In addition, Mr. Epstein. defendants' other handwriting
expert, also wrote to Mr. Hunter, at sometime before the end of 2000, to offer his assistance
in examining the Ransom Note. (SMF 349; PSMF 349.) Mr. Hunter did not take Mr. Epstein up
on his offer, either. (SMF 349; PSMF 349.)

On November 14, 1997, Mr. Hoffman filed a Complaint in the District Court for Boulder
County, Colorado, on his own behalf as a plaintiff, asking that Mr. Hunter be forced to explain
why he had not filed murder charges against Mrs. Ramsey. (SMF 344;

Page 35

PSMF 344.) Attached to the Complaint was the affidavit of Ms. Wong who, notwithstanding
her earlier overture to the Ramseys, now claimed that Mrs. Ramsey had written the Ransom
Note. (SMF 345; PSMF 345.) Mr. Hoffman's complaint was dismissed on January 20, 1998.
(SMF 346; PSMF 346.)

In March 2000, Mr. Hoffman again filed suit, again on his own behalf as plaintiff, against
defendants in the Supreme Court of New York, County of New York, for $25,000,000 in
damages based on the allegation that he was defamed by certain passages in the
defendants' Book. (SMF 353; PSMF 353.) On April 21, 2000, Mr. Hoffman dismissed this
complaint. (SMF 354; PSMF 354.)

In addition, Mr. Hoffman has served as a long time source to news tabloids for information
about the investigation. ( See, e.g. , John Latta, "JonBenet's Dad Was Framed by Mom, say,
insiders," NATIONAL EXAMINER, June 24, 1997 (insider referred to is Mr. Hoffman); Art
Dworkin, "JonBenet's Dad Lied Under Oath to Hide Death Fight," NATIONAL EXAMINER
dated March 7, 2000 (quoting Mr. Hoffman's comments about Mr. Ramsey's deposition
testimony); Art Dworkin, "Five Years Later JonBenet Parents Are Doing Little To Find Killer,"
NATIONAL EXAMINER, December 11, 2001 (quoting Mr. Hoffman as stating, among other
things, that defendants "JUST DON'T CARE" about their daughter's murder investigation.) 20


20 In the course of representing his clients, Lin Wood, the attorney for defendants, has also
served as a source for articles on the investigation and has appeared on NBC's

Page 36

v. History of This Case

Plaintiff filed suit on May 11, 2000, alleging intentional infliction of emotional distress. He
amended his Complaint on June 15, 2000 to add claims for libel and slander stemming from
the Book and from comments by Mr. Ramsey on NBC's "Today" show, respectively. Mr. Wolf
has stipulated that he is a limited public figure. (See Stipulation <8).) On February 9, 2001, the[BR> Court denied defendants' motion to dismiss. (See Order dated February 12, 2002 <15).)[P> After discovery ended, plaintiff withdrew his claim for intentional infliction of emotional
distress. (See Stipulation of Dismissal <64>.) The libel and slander claims still remain. On
August 30, 2002, defendants filed the present motion for summary judgment <67>.

There are also other motions currently pending before the Court. On August 28, 2002,
defendants filed a motion in limine to exclude the testimony of Cina Wong and Gideon Epstein
as plaintiff's experts <68>. On the same day, defendants also moved for oral argument on
defendants' motion for summary judgment as to the remaining claims <79>.


"Today" Show on multiple occasions. Both attorneys have litigated their position in the court of
public opinion at almost every opportunity presented.

Page 37


I. Motion in Limine to Exclude Testimony

Defendants have filed a motion in limine to exclude the expert testimony of Cina Wong and
Gideon Epstein <68> , two witnesses proffered by plaintiff as "forensic document examiners."
For the reasons discussed below, the Court concludes that defendants' motion should be
GRANTED as to Ms. Wong and GRANTED in part and DENIED in part as to Mr. Epstein.

A. Daubert Principle

Federal Rule of Evidence 702 is quite liberal in the scope of evidence it deems properly
admissible. The Rule states in relevant part that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.

Fed. R. Evid. 702. The trial court must, however, act as a gatekeeper and determine, at the
outset, whether the purported expert is qualified to express a reliable opinion based on
sufficient facts or data and the application of accepted methodologies. Kumho Tire Co., Ltd.
v. Carmicnael, 526 U.S. 137,

Page 38

152 (1999). See also Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-93 (1993) .:21

In performing this gate-keeping responsibility, the Supreme Court has articulated four factors
the court may consider:

(1) Whether a theory or technique can be or has been tested;

(2) Whether it has been subjected to peer review and publication;

(3) Whether, in respect to a particular technique, there is a high known or potential rate of
error and whether there are standards controlling the technique's operation; and

(4) Whether the theory or technique enj oys general acceptance within a relevant scientific

Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at 592 94) (internal quotations
marks and alterations omitted). These various factors are not an exhaustive list of all possible
ways to assess reliability, nor must all of the factors be applied in every case. Id. at 150.
Depending on the facts of the case and the type of testimony being challenged, it may very
well be


21 As the Supreme Court explained in Daubert and Kumho, Rule 702 requires the district
judge to ensure that the expert's testimony is both relevant and reliable before it may be
admitted, regardless of whether the testimony is scientific or based on technical or other
specialized knowledge. See Kumho, 526 U.S. at 147; Daubert, 509 U.S. at 589. When the
expert's testimony's "factual basis, data, principles, methods, or their application are called
sufficiently into question, the trial judge must determine whether the testimony has 'a reliable
basis in the knowledge and experience of the relevant discipline.'" Kumho, 526 U. S. at 149
(emphasis added(quoting Daubert, 509 U.S. at 592).

Page 39

unreasonable to apply all of these factors. Id. at 151. Accordingly, the trial judge is given
discretion in determining how and in what manner to make reliability determinations pursuant
to Daubert.

"The burden of laying the proper foundation for the admission of expert testimony is on the
party offering the expert, and admissibility must be shown by a preponderance of the
evidence." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Accord U.S.
v. Gilliard, 133 F.3d 809, 815 (11th Cir. 1998) (stating that expert testimony is admissible only
if its proponent demonstrates the underlying methodology is reliable and relevant) .

B. Background on Handwriting Analysis

Defendants argue that the opinions of plaintiffs' expert should not be admitted because the
field of forensic document examination is not sufficiently reliable. In their Brief in Support of
the Motion in Limine, defendants argue that the "science" of handwriting analysis does not
meet the reliability standards of Rule 702: as the theoretical bases underlying this science
have never been tested; error rates are neither known nor measured; and the field lacks both
controlling standards and meaningful peer review. (Br. In Supp. Of Mot. In Limine <68> at 2. )

In examining defendants' contention, the Court notes that both parties agree that the field of
forensic document examination

Page 40

is premised on the assumption that no two persons' handwriting is exactly alike; instead,
each person has a unique handwriting pattern that allows the person to be identified through a
comparison of proper handwriting specimens. 22 (SMF 209; PSMF 209. ) Forensic document
examination involves the subjective analysis and assessment of writing characteristics found
in a persons's handwriting or handprinting style, by examination of subtle and minute qualities
of movement such as pen lifts, shading, pressure and letter forms. (SMF 210; PSMF 210.)
Handwriting identification is an inexact endeavor that "cannot boast absolute certainty in all
cases." (SMF 212; PSMF 212.) Two or more handwriting experts can reach different
conclusions of authorship, even when examining the same questioned document and
handwriting exemplars. (SMF 213; PSMF 213.)

Forensic document examiners are generally trained through a "guild-type" apprenticeship
process, in which supervised trainees study methods of document examination described by
the field's leading texts. (Defs.' Mot. In Limine <68> at 3; Epstein Dep. at 40-41.) The only
recognized organization for accrediting forensic document examiners is the American Board
of Forensic Document Examiners ("ABFDE"). (Defs.' Mot. In Limine <68>; Epstein Dep. At


22 Defendants agree that this is the bedrock assumption of practitioners in this area; they
disagree that this assumption has any validity, inasmuch as it has never "been seriously
tested, much less proven." (Defs.' Mot. In Lim. <68> at 16 and n. 9).

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:22 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
6. "RE: Carnes text"
In response to message #5
   Page 41

36. ) There are common terms used within the field. For example, the unidentified writing is
generally referred to as the "questioned document." (SMF 214; PSMF 214. ) Writings
prepared by a person in the past in the normal course of business are referred to in the field
as "historical writings" or "course of-business" writings. (SMF 215; PSMF 215.) In contrast,
writings prepared on request for the purpose of comparison are referred to as "request
exemplars." (SMF 216; PSMF 216.) Ideally, a handwriting expert should consult the original
unidentified writing, not a copy, to increase the reliability of his or her assessment. (SMF
218-219; PSMF 218-219.) The most reliable method of forensic document examination
occurs when an examiner compares both historical writings and request exemplars to the
questioned document. (SMF 217; PSMF 1 217.)

The recognized method for forensic document analysis occurs in several important steps.
First, the expert determines whether a questioned document contains a sufficient amount of
writing and enough individual characteristics to permit identification. After determining that the
questioned document is identifiable, the expert examines the submitted handwriting
specimens in the same manner. If both the questioned document and the specimens contain
sufficient identifiable characteristics, then the expert compares those characteristics often
through the use of a chart. (SMF 230-232; PSMF 230-232.) For example, the slant of the

Page 42

the shapes of the letters, the letter connections, the height of the letters, the spacing between
letters, the spacing between words, the "I" dots and "t" crosses are aspects of handwriting
that can be used for comparison. Next, the expert weighs the evidence, considering both the
similarities and the differences of handwriting, and determines whether or not there is a
match. (SMF 232; PSMF 232.) Ignoring differences between characteristics is a frequent
cause of error in handwriting identification. (SMF 233; PSMF 233.) Similarly, dismissing
differences as merely the product of intentional disguise is another common mistake made in
the analysis. (SMF 235; PSMF 235.) In addition, an examiner should not know the identity of
the comparators and should consult more than one comparator to increase the reliability of
his or her analysis. (SMF 256-57 & 268-72; PSMF 256-57 & 268-72.)

In addition to a recognized methodology, there are some accepted standards that should be
employed when engaging in handwriting analysis. One standard is that the genuineness of
the historical writing or request exemplar must be verified; that is, the forensic document
examiner should ensure the purported author is the true and historical writing is indeed the
author. (SMF 223; PSMF 223.) In addition, any differences between the questioned document
and the comparison writings are generally considered to be more significant than are
similarities, when

Page 43

attempting to determine whether someone is the author of a questioned document. (SMF
224; PSMF 224.) The reason that similarity, by itself, is not dispositive is because most
people are taught handwriting as children from the same or similar "notebook styles" and,
therefore, many people will share common handwriting characteristics called "class
characteristics." (Defs. ' Mot. In Limine <68> at 4; Albert S. Osborn, QUESTIONED
DOCUMENTS 226 (2nd Ed. Patterson Smith, 1973) , attach. to Defs.' Evid. In Supp., Vol. I, at
Tab 16.) The existence of even one consistent fundamental difference between writings,
however, has historically been viewed as a legitimate basis for concluding that two writings
were not produced by the same person.23 (SMF 225; PSMF 225.) Finally, it is generally
accepted that consistent characteristics present over the course of a long writing should be
viewed as genuine characteristics of the author's handwriting, and not the product of an
attempt to disguise. (SMF 237; PSMF 237. )

Based on the above undisputed information, the Court concludes, as a general proposition,
that forensic document examiners, who are equipped with the proper background qualification
and who employ the accepted methodology in their


23 Plaintiff contends, however, that modern handwriting analysis literature also views
significant similarities as strong evidence that, in some instances, can outweigh an
unexplainable difference between the writings. (PSMF 225.)

Page 44

analysis, can serve to assist the trier of fact, in some regards, through providing reliable
testimony about similarities or differences, or both, between a questioned writing and
comparative exemplars.24 Such a holding is consistent with the precedent established by the
Eleventh Circuit in U.S. v. Paul, 175 F.3d 906 (11th Cir. 1999) . In Paul, the Eleventh Circuit
held that a forensic handwriting expert can, in some instances, assist the "jury or trier of fact
to understand the evidence or to determine a fact in issue" Id. at 911. In Paul, the expert was
deemed qualified to provide reliable testimony based on his thirty years of experience in the
field and application of widely accepted methods of analysis. Likewise, this Court concludes
that when a forensic handwriting expert possesses the proper qualifications and when he or
she employs reliable methodology, the testimony can qualify as "specialized knowledge" that
can be admitted pursuant to Federal Rule of Evidence 702. See also United States v. Jolivet,
224 F.3d 902, 906 (8th Cir. 2000) (affirming the district court's admission of forensic
document expert testimony and


24 Rule 702' s requirement that evidence "assist the trier of fact in reaching its conclusion"
goes primarily to relevance; an assessment of reliability is an additional component of the
judge's gatekeeper function. Daubert, 509 U.S. at 591-92. "Simply put, expert testimony that
does not relate to any issue in the case is not relevant, and thus, not helpful. Reliability, on the
other hand, is an assessment of whether the expert's reasoning or methodology is valid and
warrants the relaxation of the common law first-hand knowledge requirement for witnesses."
United States v. Lewis, 220 F.Supp.2d 548, 552 (S.D. W.Va. 2002).

Page 45

finding such opinion reliable because the expert was well qualified in handwriting analysis and
his testimony "may be properly characterized as offering the jury knowledge beyond their own
and enhancing their understanding of the evidence before them. ") . Accord United States v.
Jones, 107 F.3d 1147, 1160-61 ( 6th Cir.), cert. denied, 521 U.S. 1127 (1997).

c. Background and Qualifications of Plaintiff's Experts

Although the Court has concluded that a proper expert may assist a jury in a comparison of
handwriting between a known and an unknown piece of writing, that conclusion does not
mean that a person can be deemed as an expert in forensic document examination merely by
announcing himself as such. Indeed, defendants assert that plaintiff's experts, in particular
Ms. Wong, lack the necessary credentials to qualify as experts. (Defs.' Br. In Supp. Of Mot. In
Limine <68> at 5-7; Reply Br. In Supp. Of Mot. In Limine <90> at 2.) For the reasons discussed
below, the Court agrees with defendants that Wong is not qualified to provide expert
testimony. The Court, however, finds that Epstein is qualified to present certain expert
testimony in this case.

Mr. Epstein is a forensic document examiner who served as the past president of the
American Society of Questioned Document Examiners, is a registered member of the
ABFDE, and has authored several authoritative texts in the field. (PSDMF <88> , 1; Epstein Aff.
12-15.) He has a Bachelor of Science in Criminal

Page 46

Justice from the University of Nebraska, a Masters of Forensic Science from Antioch School
of Law, successfully completed a two year resident training program in the forensic science
of Questioned Document Examination at the U.S. Army Crime Laboratory in Fort Gordon,
Georgia, and has trained with the Post Office Identification Laboratory. (Id. . 2.) Plaintiff notes
that Mr. Epstein has "appeared in 200 cases over a thirty year period, having examined
thousands of documents... <, has> established questioned document laboratories for not only
the U.S. government, but for those of Eastern Europe and the Philippines as well, while
teaching hundreds of government document examiners their professions." (Pl.'s Br. In Opp.
To Defs.' Mot. In Limine (87] at 8. ) In addition, Epstein has taught Forensic Document
Examination at the George Washington Graduate School of Forensic Sciences, the Federal
Law Enforcement Training Center, and in programs offered to the United States Army
Criminal Investigators. (Epstein Aff. ,. 6-7.) The Court concludes that Mr. Epstein's
background constitutes sufficient qualifications to allow him to testify in the field of forensic
documents' examination. See, e.g., United States v. Paul, 175 F.3d at 911 (finding
handwriting expert with fourteen years of experience should be admissible); United States v.
Velasquez, 64 F.3d 844, 846 (3rd Cir. 1999) (finding same); Unites States v. Gricco, 2002 WL
746037, *2 (E.D. Pa. April 26,

Page 47

2002) (finding forensic document analyst with similar extensive qualifications to be qualified
as an expert) .

In stark contrast to Epstein, Wong has never taken a certification exam, completed an
accreditation course in document examination, been an apprentice to an ABFDE certified
document examiner, or worked in a crime lab. (Wong Dep. at 87-112.) She does, however,
claim nearly ten years of experience in the field. (PI.'s Br. In Opp. To Defs.' Mot. In Limine <87>
at 9.) She, however, is not a member of the ABFDE, the sole recognized organization for
accreditation of qualified forensic document examiners. Although she is the former vice
president of the National Association of Document Examiners ("NADE"), (PSDMF' 2),
defendants note that this organization does not meet ABFDE certification requirements, has
no permanent office and has no membership requirements other than the payment of a fee.
(Defs. ' Mot. In Limine <68> at 6.) Wong, herself, admits that NADE does not require
specialized training or experience forits certification. (Wong Dep. at 87-89.) Finally, even
Epstein, plaintiff's other expert, testified that Wong is not qualified to render 'opinions in this
case. (Epstein Dep. at 32-33.) Accordingly, the Court concludes Ms. Wong is not qualified to
provide reliable handwriting analysis in this case. Therefore, the Court GRANTS defendants'
motion in limine to exclude the

Page 48

testimony of Ms. Wong and the Court does not consider Ms. Wong's testimony in its analysis
of defendants' summary judgment motion.

D. The Reliability of Epstein's Proffered Testimony.

Although the Court has concluded, as a general matter, that Epstein is qualified to testify as a
forensic documents examiner, it must still determine the parameters of his expertise with
regard to the opinions he seeks to offer. Specifically, Epstein claims that he can state, with
absolute certainty, that Mrs. Ramsey is the author of the Ransom Note. The Court, as
gatekeeper, must therefore examine the methodology that he puts forward in support of such
a categorical conclusion. First, Epstein states that he used the standard methodology of
forensic document examiners when assessing the Ransom Note and Mrs. Ramsey's writing
samples. (Epstein Aff. 25.) He initially determined that he had a sufficient amount of
handwriting by Mrs. Ramsey to allow an examination. (Id. , 26.) He then proceeded to
examine the submitted materials for similarities and dissimilarities. . (Id.) After conducting the
examination, he then determined that the original writing and the exemplars matched to a
"one hundred percentU degree of certainty. (Id. 26, 31.) Finally, he consulted other forensic
document analysts who approved of his methodology and result. (Id. , 32.)

Defendants move to exclude the testimony of Epstein because they assert that the
methodology he employed does not meet the

Page 49

accepted standards of handwriting analysts. In particular, defendants argue that Epstein's
opinions are not reliable because he did not consult the original Ransom Note, original
handwriting exemplars of Mrs. Ramsey, nor original course-of-business writings of Mrs.
Ramsey. (Defs.' Mot. In Limine (68 at 8.) Epstein acknowledges the importance of consulting
original documents in an article he coauthored, appearing in the 1971 edition of Identification
News, a publication of the International Association for Identification. (SMF 220; PSMF 220.) In
this text, Epstein writes that:

All investigative agencies should be aware of the limitations that are imposed upon the
Questioned Document Examiner by the submission of copies (Xerox, Photo, or Thermofax)
in place of the original. By having to use the copies, the examiner is being deprived of one of
the most important elements of scientific examination, the study of line quality of the writing.
Those breaks, pressure areas, and even spacing, can often be attributed to the mechanical
method of reproduction and not to the actual writing itself. A qualified conclusion based on
examination of only copies is not rare. ATTEMPT TO OBTAIN THE ORIGINALS WHENEVER

(SMF 129; Hans M. Gideon & Gideon Epstein, "The Obtaining of Proper Handwriting
Exemplars and Standards," emphasis in original, Ex. A to Jordan Aff., Tab. 23. ) The parties
also agree that mechanical copying may distort the writings or eliminate subtleties, such as
pen lifts, hesitations, pressure or feathering. " (SMF 222; PSM 222 . ) Notwithstanding his
previous warnings about the use of copies. Epstein testified in

Page 50

this case that copies produced today are 'of a higher quality than those generated at the time
the article was produced and, therefore, some of the concerns expressed in the article have
been mitigated. He still agreed, however, that it is optimum to review the original. (PSMF 219.)

It is undisputed that a number of subtle and critical handprinting features observable on
examination of the original Ransom Note cannot be observed from an examination of a
machine copy of the Ransom Note. (SMF 245; PSMF 245.) Plaintiff's experts, however, were
not afforded the opportunity to consult the original Ransom Note, original exemplars, or the
course-of business writings of Mrs. Ramsey. Defendants refused to provide original
exemplars, despite plaintiff's discovery requests. 25 (PI.' s Br. In Opp. To Defs.' Mot. In
Limine <87> at 20.) The Court concludes that any reliability concerns stemming from Epstein's
failure to consult the originals should go to the weight of his testimony, but should not bar its
admission, completely. To hold otherwise could create a perverse incentive for individuals not
to allow an opponent access to original documents, in order to render those expert's opinion

In short, the Court is satisfied as to Epstein's ability to testify concerning perceived similarities
and differences in Mrs.


25 At the same time, plaintiff never sought a motion to compel such production. (See Defe.'
Br. In Supp. Of Mot. In Limine <90> at 11 n.7.)

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:23 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
7. "RE: Carnes text"
In response to message #6
   Page 51

Ramsey's known handwriting and the Ransom Note. Any criticism of Epstein's analysis by
defendants goes to the weight of his testimony. Of more concern to the Court, however, is
the reliability of Epstein's ultimate conclusion concerning the identity of the writer of the Note.
As noted, Epstein claims that he is "100 percent certain that Patsy Ramsey wrote the
(R]anson ote," and in his professional opinion "there is absolutely no doubt she is the
author." (Pl. 's Stmt. Of Disp. Mat. Facts (88] 1.) (emphasis added)

Nowhere in the submissions provided by plaintiffs is there any attempt to show by what
methodology Mr. Epstein reaches a conclusion of absolute certainty that a given person is, in
fact, the writer of a questioned document. 26 Defendants persuasively argue that Epstein
was unable to identify any unique.


26 In his response to defendants' Motion In Limine, plaintiff has provided conclusory affidavits
from other experts indicating that they agree with Epstein's methodology and conclusion. Yet,
those opinions beg the question. One does not know by what methodology these other
individuals reach their conclusion that Epstein can make a determination with "absolute
certainty." When the predictive ability of a professed skill is questioned, the belief of multiple
practitioners of that skill that its exercise produces a reliable result still provides no basis for
determining the ultimate soundness of the determination. Further, these individuals were not
disclosed as experts in the case and they did not provide expert reports, as required by Rule
26. Fed. R. Civ. P. 26(2) (B) (requiring that, unless otherwise agreed, the proponent of an
expert must disclose the expert's name and a written report "prepared and signed by the
witness" that, inter alia, includes a "complete statement of all opinions to be expressed and
the basis and reasons thereof.")

Page 52

characteristics of Mrs. Ramsey's handwriting that were mimicked in the Ransom Note. (Def.
's Mtn. in Lim. <68> at 9). Instead. Epstein bases his conclusion on perceived similarities
between the two. Id. Yet, as noted by defendants, Epstein never indicates how many
similarities or what kind of similarities are required before he can reach absolute certainty,
50% certainty, or no certainty, at all. Further, as defendants also note, whenever encountering
any differences between the known writing of Mrs. Ramsey and the Ransom Note, Epstein
finds refuge in the explanation that Mrs. Ramsey must have been trying to disguise her
handwriting. (See id.) While it is, of course, possible that differences between known writing
and questioned documents are the result of a known writer's efforts to disguise her
handwriting, it is just as plausible that the differences can occur because the' known writer is
not the author of the questioned matter. On that issue, Epstein offers no hint of the
methodology that he employs to distinguish between disguised writing and writing that is
simply being provided by two different people.

The underlying notion behind Daubert, and all good science, is that a given premise or
principle should be capable of being tested to determine whether the principle is, in fact,
sound. Thus, if Epstein indicated, for example, that whenever a writer of known material has x
number of similarities, there is a given probability that the writer wrote the note--and if this

Page 53

methodology had been tested by reliable means in the past--then Epstein would have shown
reliability in the methodology that he used to reach a determination of the likelihood of his
conclusion. As it is, however, Epstein's explanation for his conclusion seems to be little more
than "Trust me; I'm an expert." Daubert case law has indicated that such an assertion, which
seems to be based more on intuition than on scientific reasoning, is insufficient. Accordingly,
the Court concludes that while Epstein can properly assist the trier of fact by pointing out
marked differences and unusual similarities between Mrs. Ramsey's writing and the Ransom
Note, he has not demonstrated a methodology whereby he can draw a conclusion, to an
absolute certainty, that a given writer wrote the Note. 27

Such a holding is consistent with numerous other districts that have allowed a qualified
handwriting' expert to testify as to the "similarities" between a challenged document and a
known exemplar, but have not allowed the expert to express his ultimate "opinion" on the
matter. See, e.g., United States v. Van Wyk, 83 F.Supp.2d 515, 524 (D.N.J. 2000) (allowing
an expert to testify about "the specific similarities and idiosyncrasies between the known
writings and the questioned


27 In so holding, the Court does not rule out the possibility that, upon a proper showing, a
handwriting expert might be able to demonstrate reliability sufficient to allow testimony
concerning his conclusions regarding the identity of a questioned writer. The Court simply
holds that Mr. Epstein has not made that showing in this case.

Page 54

writings, as well as testimony regarding, for example, how frequently or infrequently in his
experience, he has seen a particular idiosyncrasy.") ; United States v. Rutherford, 104
F.Supp.2d 1190, 1194 (D. Neb. 2000) (limiting a forensic document examiner's testimony to
"identifying and explaining the similarities and dissimilarities between the known exemplars
and the questioned documents."); United States v. Hines, 55 F.Supp.2d 62, 68 (D. Mass.
1999) (permitting forensic examiner to testify about unique features common or absent in the
writings) . But see United States v. Lewis, 220 F.Supp.2d 548, 552 (S.D.W.Va. 2002) (finding
that proponent of forensic document expert had failed to establish testimony's reliability);
United States v. Saelee, 162 F.Supp.2d 1097, 1106 (D. Alaska 2001) (excluding handwriting
expert testimony in its entirety as inherently unreliable). Therefore, Defendants' Motion in
Limine to Exclude the Testimony of Mr. Epstein is GRANTED, IN PART, AND DENIED, IN

II. Summary Judgment Motion

As noted, plaintiff's complaint asserts both a libel and slander claim, two subcategories of
defamation. See Nida v. Nichols, 31 F.Supp.2d 1358, 1375 n.33 (N.D. Ga. 1998). Plaintiff
asserts that defendants' mention of him as a suspect in the Book is a knowing falsehood
because defendants knew that Mrs. Ramsey actually committed the murder and that Mr.
Ramsey helped her cover it up. In short, plaintiff's success in this litigation requires

Page 55

him to prove, by clear and convincing evidence, that defendants killed their child.

Defendants have moved for summary judgment (67] . In addition, defendants have moved for
oral argument on defendants' motion for summary judgment <79> . Because the parties have
provided thorough briefs, the Court finds it unnecessary to hold an oral argument.
Accordingly, defendants' Motion for Oral Argument (79] is DENIED. Based on the record
presently before it, and for the reasons stated below, the Court concludes that defendants'
motion for summary judgment should be GRANTED.

A. Summary Judgment Standard

Summary judgment is not properly viewed as a device that the trial court may, in its
discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of
Civil Procedure mandates the entry of summary judgment against a party who fails to make a
showing sufficient to establish the existence of every element essential to that party's case on
which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In such a situation, there can be no genuine issue as to any material fact, as a
complete failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Id. at 322 23.

Page 56

The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323;
Apcoa~ Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 {II th Cir. 1990) . The movant is not
required to negate his opponent's claim, however. The movant may discharge his burden by
merely "'showing'--that is, pointing out to the district court--that there is an absence of
evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. After the movant
has carried his burden, the nonmoving party is then required to "go beyond the pleadings" and
present competent evidence28 designating "'specific facts showing that there is a genuine
issue for trial.'" Id. at 324 (quoting FED. R. CIV. P. 56(e)). While the cour~ is to view all
evidence and factual inferences in a light most favorable to the nonmoving party, Samples v.
Ci ty of Atlanta, 846 F. 2d 1328, 1330 ( 11th Cir. 1988), . "the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).

A fact is material when it is identified as such by the controlling substantive law. Id. at 248. An
issue is genuine when the evidence is such that a reasonable jury could return a


28 The nonmoving party may meet its burden through affidavit and deposition testimony,
answers to interrogatories, and the like. Celotex, 477 U.S. at 324.

Page 57

verdict for the nonmovant. Id. at 249-50. The nonmovant "must do more than simply show
that there is some metaphysical doubt as to the material facts. . . Where the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
'genuine issue for trial.'" Matsushi ta Electric Indus. Co. v. Zeni th Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted) . An issue is not genuine if it is unsupported by evidence, or
if it is created by evidence that is "merely colorable" or is "not significantly probative."
Anderson, 477 U.S. at 249-50. Thus, to survive a motion for summary judgment, the
nonmoving party must come forward with specific evidence of every element material to that
party's case so as to create a genuine issue for trial.

B. Libel Claim

Georgia law defines libel as "a false and malicious defamation of another, expressed in print,
writing, pictures, or signs, tending to injure the reputation of the person and expose him to
public hatred, contempt, or ridicule." O.C.G.A. § 51-5-1 (a) . Truth is an absolute defense
under Georgia law: if plaintiff cannot prove falsity, the libel and slander claim must fail.
O.C.G.A. § 51-5-6; Cox Enter.prise, Inc. v. Thrasher, 264 Ga. 235, 237, 442 S.E.2d 740,
742(1994). In addition, "o be actionable, the libel must be "published"--i.e., communicated to
a third party." Mullinax v. Miller, 242 Ga. App. 811, 814, 531

Page 58

S.E.2d 390, 392 (2000). There is no dispute over the fact that the allegedly defamatory
comments in this case, contained in defendants' book, were indeed published. The parties do
disagree as to whether the statements were libelous and, if so, whether defendants acted
with malice.

1. Were the statements libelous?

As a general rule, the question of whether a published statement is defamatory is a question
for the jury. Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S.E.2d 16, 17 (1992)
(citations omitted). Nevertheless, when faced with a summary judgment motion in a
defamation action, the "rial 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, look. . . at what construction would be placed on it by the
average reader.H Mead, 203 Ga. App. at 362, 417 S.E.2d at 17 (citations omitted).

The passage at issue in the book emanated from a conversation, in August 1997, between
plaintiffs then girlfriend, Jacqueline Dilson, and Pam Paugh, sister of Mrs. Ramsey.
Specifically, Di1son contacted Paugh and told her that she believed plaintiff Wolf to be
involved in the murder of JonBenet Ramsey. (SMF 317; PSMF 317.) Based on that initial

Page 59

conversation, and subsequent information acquired by defendants, the following was said
about plaintiff in the Book:

Later that evening, as we were trying to relax, we received a call from Pam, who said that she
had just gotten off the phone with a lady in Boulder. Jacqueline Dilson had reported to the
Boulder police that she believed her live-in lover, Chris Wolf, might be the person they were
seeking. When she couldn't get them to respond, she finally called Patsy's mother, Nedra,
and she in turn called Pam, who immediately called Jackie back.

Jacqueline Dilson worked at the Dakota ranch, a small retreat and conference center near
Lyons. Colorado, which pushed New Age experiences. She had allowed Wolf to move into
her trailer in 1995. Chris Wolf turned out to be a reporter for the Colorado Daily and the
Boulder County Business Report with a master's degree in journal ism. His strange behavior
before Christmas and early in the morning after Christmas raised Dilson's concern about
what Wolf had been doing all night.

Apparently, Dilson had spent Christmas Day with Wolf, but he would not stay to have supper
with her and her family. Somewhere around 10: 00 P. M. Jacqueline went to bed, thinking
Wolf had gone off on a spree of some kind or another. At around 5:30 A.M., sounds from the
bathroom woke Jackie up, and she realized that Wolf was getting out of the shower. He had
left dirty clothes allover the floor. Without explanation of where he'd been, Wolf crawled into
bed and went to sleep.

Later the next day, Dilson and Wolf watched the television news reports of JonBenet's death.
To her surprise, she observed him becoming quite agitated. Wolf cursed and said that he
believed JonBenet had been sexually abused by her father. For the rest of the evening, Wolf
brooded over the case.

According to Dilson, Wolf hated big business and had a fascination with world political
disputes and political violence. Most importantly, she said that at one time Chris Wolf had
been given a sweatshirt with the initials SBTC (the signature on the ransom note), which
stood for Santa Barbara Tennis Club. We considered this

Page 60

a very significant lead and gave all the information we had to the police.

We also learned that on January 30 police officers had stopped Wolf at 11:00 A.M. as he
drove into Boulder; they discovered he was driving with a suspended license. The woman
officer took him to the police station for further questioning when Wolf abruptly told her that
the police would make better use of their time by chasing the killer of JonBenet Ramsey. He
definitely caught everyone's attention with that remark. Detectives Ron Gosage and Steve
Thomas started interrogating Chris Wolf with hard questions about our child.

When they asked Wolf to write some words from the ransom note, he refused. The police put
him in handcuffs, but he still refused. Finally, the two detectives put him in jail, pending the
resolution of his suspended license. Later that day Wolf was released.

Wolf later reported that Steve Thomas and John Eller called him a few weeks afterward to
come down to the police department. Once there, they told him, "We have no interest in you."
But they did confirm that someone had given his name to police as a possible suspect.

Whatever the police's intentions, Wolf went on our suspect list. He represented too many
unanswered questions.

( SMF 318 ; PSMF 318 ; John and Patsy Ramsey, Tbe Death of Innocence: The Untold Story
of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth at 204-05
(2000) The book further stated:

By March 1, 1999, we had reported more information on Chris Wolf to the authorities. One
person had seen Wolf go into an angry tirade aimed at me after he read an article about our
company printed in the Boulder Daily Camera in early 1996. Apparently Wolf

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:23 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
8. "RE: Carnes text"
In response to message #7
   Page 61

accused the company I worked for, Lockheed Martin, of selling arms to South American

(SMF 223: PSMF 223: The Death of Innocence at 329.)

The Court will assume that the statements made in the Book do defame plaintiff Wolf. The
statements indicate that defendants and others considered plaintiff to be a potential suspect
in the brutal murder of a child and also suggest that there was some basis for the suspicion.
"Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. II
Barber v. Perdue, 194 Ga. App. 287, 288, 390 S.E.2d 234, 235 (1989) . If false, such
statements could reasonably be held by a juror to constitute libel per se because the
statements are "injurious on their face--without the aid of extrinsic proof." See also Zarach v.
Atlanta Claims Ass'n, 231 Ga. App. 685, 688, 500 S.E.2d 1, 5' (1998) ("Defamatory words
which are actionable per se are those which are recognized as injurious on their face--without
the aid of extrinsic proof.")

A conclusion that the statements were libelous is not inconsistent with the recent holding by
the Eleventh Circuit in another defamation action concerning the Ramsey case, also filed by
plaintiff's counsel, Darnay Hoffman. In that action, Hoffman Pugh v. Ramsey, 312 F.3d 1222
(11th Cir. 2002), plaintiff Linda Hoffman-Pugh, also claimed that the defendants had libeled
her in their book by creating a false impression that she was or had been

Page 62

a suspect in the murder of JonBenet. The Eleventh Circuit, however, affirmed the district
court's decision that the defendants' book, when considered as a whole, does not defame
Ms. Hoffman-Pugh as a matter of law. Id. The court concluded that the book, when fairly read,
did not convey that Ms. Hoffman-Pugh was a suspect in the murder.

Key to the Eleventh Circuit's analysis is the defendants' failure to ever state that Ms.
Hoffman-Pugh, defendants' housekeeper, was considered to be a murder suspect py them or
by the police. Instead, the Book states that, before they knew their daughter's fate, at a time
when they believed her to have been kidnapped and were running through their minds people
who knew JonBenet, the defendants never believed that Ms. Hoffman-Pugh would hurt their
daughter even if she had kidnapped her because' she was a "good, sweet person." Id. at
1226. In addition, the Eleventh Circuit notes that Ms. Hoffman-Pugh does not fit defendants'
profile of the culprit detailed later in the Book, which describes a male, age 25 to 35, who is
either a former convict or has been around hardened criminals, and who had access to a
stun gun. Id. Finally, the court concluded that when, read in its entirety, the Book indicates that
Ms. Hoffman-Pugh is not a suspect. Id. at 1227. Alternatively, the panel concluded that even if
defamatory, the statements were "nonactionable statements of opinion." Id. at 1225.

Page 63

In the instant case, however, plaintiff does fit the profile of the murderer set out in the book
and was discussed in detail as a viable suspect in the murder investigation. Indeed, in
recognition of these substantial differences between the Hoffman Pugh case and the case
pending before this Court, the Eleventh Circuit noted that the statements regarding plaintiff
were "not the situation before us." Id. at 1227 n. 3. In short, the "sting" or "gist" of the
passages in the Book suggest that plaintiff is a viable suspect in the murder. Such an
accusation is defamatory.

Of course, that a given statement is defamatory does not mean that the defamation is
actionable. As noted supra and infra, truth is a defense to a libel action, as is the expression
of an honestly held opinion. Certainly, many of the statements about' plaintiff Wolf, recounted
above, are true. That is, Ms. Dilson did recount the described information about what she
believed to be plaintiff's suspicious behavior. Likewise, plaintiff was questioned by the police
concerning JonBenet' s murder. 29 Yet,


29 Indeed, defendants arguably understated the police department's interest in plaintiff. Since
1997, plaintiff has been a long standing suspect of both the Boulder Police Department and
the Boulder County District Attorney's Office in the murder investigation. (SMF 285-286, 291;
PSMF 285-286, 291.) Contrary to what the Complaint indicates, Boulder authorities have yet
to clear plaintiff of possible involvemnt in the murder (SMF 287; PSMF 287.) Further, he is the
only suspect to date to have been arrested in connection with the murder investigation. (SMF
290; PSMF 290. )

Page 64

ultimately, the inference one draws from the passage is the defendants' belief, not that plaintiff
actually killed their daughter, but that there is reason to suspect that he might have.
Defendants argue that this is a non-actionable opinion. Plaintiff has argued, however, that this
is not an honestly held opinion because Mrs. Ramsey actually killed her daughter and her
husband knows this. Accordingly, plaintiffs argues, the Ramseys could not believe that
plaintiff, or anyone else is a viable suspect, because the Ramseys know that they are the
perpetrators of the crime.

This Court likewise concludes that, as to this narrow theory of defamation articulated by
plaintiff, the statements at issue are defamatory.

2. Were the statements made with malice?

In addition to proving that the published statements were indeed defamatory, plaintiff bears
the additional burden of establishing that defendants acted with "actual malice." Plaintiff bears
this addition burden because he has stipulated that, for all purposes of this litigation, he is a
"limited purpose public figure." (Stipulation <8> . ) "A limited purpose public figure is 'an
individual voluntarily injects himself or is drawn into a particular public controversy and
thereby becomes a public figure for a limited range of issues.'" Little v. Breland, 93 F.3d 755,
757 ( 11th Cir. 1996) {quoting Gertz v.

Page 65

Robert Welch, Inc., 418 U.S. 323, 351 (1974". Actual malice, in the New York Times Co. v.
Sullivan, 376 U.S. 254, 280, (1964) , sense, is knowledge that the defamatory matter was
false or that it was published with reckless disregard for whether it was false or not. Morton v.
Gardner, 155 Ga. App. 600, 604, 271 S.E.2d 733, 737 (1980).

Plaintiff must prove falsity by clear and convincing evidence. Straw v. Chase Revel, Inc., 813
F.2d 356, 361 n.6 (11th Cir. 1987); Firestone v. Time, Inc., 460 F.2d 712, 721-23 (5th Cir.
1972) (Bell, J. specially concurring). 30 Clear and convincing evidence:

produce <8> in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established, evidence so clear, direct and weighty and convincing as
to enable to come to a clear conviction, without hesitancy, of the truth of the
precise facts in issue.

Cruzan v. Director, Missouri Department or Health, 497 U.S. 261, 285 n. 11 (1990) (internal
quote omitted) . In other words, the clear and convincing evidence "place in the ultimate
fact finder an abiding conviction that the truth of (the] factual contentions are 'highly probable'
." Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (citing C. McCorick, LAW OF
EVIDENCE § 230, p.679 (1954".


30 The Eleventh Circuit has adopted as binding precedent decisions of the former Fifth
Circuit rendered prior to October 1, 1981. See Bonner v. City or Prichard, 661 F.2d 1206
(11t:n Cir. 1981) (en bane) .

Page 66

Plaintiff attempts to prove actual malice by what he asserts is clear and convincing evidence
that defendants actually killed JonBenet and, therefore, made the above libelous statements
that plaintiff was a viable suspect, knowing that such statements were untrue. As this is
defendants' motion for summary judgment, all factual inferences must be drawn in favor of
plaintiff. Further, as there is little factual dispute between the parties as to the evidence that
exists, the Court will review each party's theory of the crime and the evidence proffered in
support of the respective theory, indicating when an actual dispute of fact exists between the
parties. The Court will compare the evidence in order to determine whether the record
supplies clear and convincing support for the proposition that defendants are responsible for
the murder of their child. If the record does not contain such evidence, . defendants' motion
for summary judgment must be granted. If the record does contain sufficient information from
which a reasonable factfinder could impute criminal culpability to defendants, however, the
Court must deny defendants' motion for summary judgment.

3. Evidence in Support of the Intruder Theory

Defendants assert that the evidence establishes that Mrs. Ramsey did not murder her
daughter JonBenet. {Defs.' Br. In Supp. of Summ. J. (67] at 18.) Specifically, defendants note

fter a half-decade investigation into the murder of JonBenet Ramsey, and year-long grand
jury investigation,

Page 67

no plausible evidence proves Patsy Ramsey had anything to do with the murder of her child.
Every prosecutor to examine this case agreed that no charge or crime should have been
brought against .

(Defs.' Br. In Supp. Of Summ. J. <67> at 19-20; see also SMF , 85, 91-93; PSMF 85; 91-93.)
Defendants contend that evidence gathered in the investigation of JonBenet's death instead
shows that she was abducted, sexually assaulted, tortured and murdered by an intruder. (Id. )

As Andrew Louis Smit, a respected homicide detective hired by the Boulder Police
Department to investigate this crime, has noted, there are only two possible solutions to this
crime: that is, either someone in the Ramsey household committed the crime or an intruder
did it. (Smit Dep. at 54.) Defendants contend that the weight of the undisputed evidence in the
case is consistent with an inference that an intruder killed their child. (Defs. ' Br. In Supp. Of
Summ. J. <67> at 19-20.) The first questions then are whether an intruder could have entered
the home and, if so, is there evidence that an intruder, in fact, entered the home on the date of
the murder. Defendants respond that the undisputed evidence supplies an answer of "yes" to
both questions. First, defendants have indicated that their house was not secure during the
night of December 25, 1997, and that they had not turned their security alarm on. (SMF 127;
PSMF , 127.) In addition, at

Page 68

least seven windows and one door were found "open" 31 on the morning of December 26,
1997. (SMF 126; PSMF 126,) A number of windows were accessible from the ground level,
including a window well, with removable grate, over three windows that opened into a
playroom area of the basement. (SMF 128; PSMF 128.) This window-well is located on the
back side of the house, hidden from the front of the house and from neighbors. (SMF 130;
PSMF 130. )

There is likewise undisputed evidence of a disturbance in this window-well area: specifically
the leaves and white styrofoam packing peanuts that had pooled in the window-well appeared
to have been cleared from, or brushed to either side of, the center window's sill in the well.
SMF 132; PSMF 132.) In addition, this center window had a broken pane and was found open
on the' morning of December 26, with a suitcase and a glass shard from the window pane
underneath it. (SMF 135 ; PSMF 135.) 32 Green foliage was also found tucked under the
movable grate over the window well, indicating that the grate had been opened and closed


31 The term "open" was not defined. It is, therefore, not clear if the entrances were ajar or

32 The suitcase contained a pillow sham, duvet and Dr. Seuss book. These items belonged
to defendants, but they have indicated that the items were not normally stored in the suitcase.
(SMF 146; PSMF 146.) A lab report indicated that fibers from the sham and duvet were found
on the shirt that JonBenet was wearing when she was found in the wine cellar. (SMF 147;
PSMF 147.)

Page 69

recently. (SMF 131; PSMF 131.) Further, the Boulder Police conducted experiments that
showed a person could enter the basement playroom through the center window. (SMF 133;
PSMF 133. ) Moreover, leaves and debris, consistent with the leaves and debris found in the
window well, were found on the floor under the broken window suggesting that someone had
actually entered the basement through this window. (SMF 136; PSMF 136.) Likewise, a leaf
and white styro-foam packing peanuts, consistent with the leaves and packing peanuts found
pooled in the window-well, were found in the wine-cellar room of the basement where
JonBenet's body was discovered. (SMF 134; PSMF 134.) This evidence is consistent with an
inference that whoever entered through this window ultimately walked to the wine-cellar room
at some point.

Certain undisputed evidence of how defendants' house was found on the morning of
December 26 is also consistent with the intruder theory of the crime. For example, the lights
were on in the basement, when first searched at approximately 6:15 a.m. that day. (SMF 129;
PSMF' 129.) In addition, the butler's door to the kitchen was found ajar that morning (SMF
137; PSMF 137.) Defendants note that the butler's door was only a short distance away from
the spiral staircase where the Ransom Note was found and within plain view of where the pad
of paper used for the Ransom Note was found. (SMF 138; PSMF 138.) Moreover, contrary to
media reports that had discredited an intruder theory, based on

Page 70

the lack of a "footprint in the snow," there was no snow covering the sidewalks and walkways,
to defendants' home on the morning of December 26, 1996. (SMF 139; PSMF 139.) Hence,
person walking along these paths would have left no footprints.

Defendants further aver that the undisputed physical evidence is not consistent with an
"accidental killing followed by staging," (Defs.' Br. In Supp. Of Summ. J. <67>), but instead is
more consistent with a theory that the intruder subdued JonBenet in her bedroom and then
took her to the basement, where she was sexually assaulted and subsequently murdered.
First, JonBenet's body was found bound with complicated and sophisticated bondage
devices, namely neatly-made rope slipknots and a garrotte, designed to give control to the
user. (Defs.' Br. In Supp. Of Summ. J. <67> at 19; SMF 161, 163-164; PSMF 161, 163-164.)
The parties agree that such devices necessarily were made by someone with expertise in
bondage. (SMF 162, 169; PSMF 162, 169.) While it is certainly possible that defendants"
possessed such unusual and specialized skills, there is no evidence that establishes this
fact. Obviously, if defendants lacked the skills


33 Of course, plaintiff's primary theory, taken from Detective Steve Thompson's book, is that
Mrs. Ramsey murdered her daughter and staged the scene. According to this theory, Mr.
Ramsey became complicit only the next day, after the Note was discovered, when he
realized that the handwriting on the Note was his wife's. Supra at 10. Under this proposed
timeline, he would not have been involved in making the bondage device.

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:24 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
9. "RE: Carnes text"
In response to message #8
   Page 71

to fashion this bondage device, then it necessarily had to be an intruder who crafted the

Further, the end portion of the paintbrush and the cord used to construct the garrote were
never found in the house, or elsewhere, nor was the latter sourced to defendants. 34 (SMF
159; PSMF l59.) (SMF 162; PSMF 162.) The black duct tape used on JonBenet's mouth has
also never been sourced to defendants. ( SMF 170; PSMF 170.) Animal hair, alleged to be
from a beaver, was found on the duct tape. (SMF 183; PSMF 183.) Yet, nothing in defendants'
home matches the hair (SMF 183; PSMF 183.), thereby suggesting either that the duct tape
had been obtained from outside the home or that it had been carried outside the home at
some point. Dark animal hairs were also found on JonBenet's hands that have not been
matched to anything in defendants' home. (SMF 184; PSMF 184.)

The above evidence arguably suggests that whoever tied up JonBenet used some items
brought from outside the home to do so. In addition, other fiber evidence supports an
inference that some of these items from outside the home were, at one time, in the second
floor area near JonBenet's bedroom. That is; fibers consistent with those of the cord used to
make the slip knots and garrote were found on JonBenet's bed. (SMF 168; PSMF 168.)


34 The paintbrush, whose middle piece was used to fashion the garrote, was found in the
paint tray in the boiler room in the basement. Supra at 14.

Page 72

This evidence is inconsistent with plaintiff's proposed timeline of events. That is, plaintiff has
hypothesized that Mrs. Ramsey, in a moment of anger, had hit JonBenet's head against
something hard in the second floor bathroom, thereby rendering her child unconscious, and
then spent the rest of the night staging an elaborate kidnapping and torture scenario in the
basement. Discovery of cord fibers, used to tie JonBenet's hands, in the latter's bedroom
arguably undermines plaintiff's sequence of events.

Likewise, other items not belonging on the second floor were found there on the day after the
murder, thereby suggesting that some preparation or activity was ongoing in that area on the
night of the murder. Specifically, a rope was found inside a brown paper sack in the guest
bedroom on the second floor; defendants have indicated that neither of these items belonged
to them. (SMF 181; PSMF 181.) Regardless of its ownership, there is no explanation why a
bag containing a rope would be in the guest bedroom. Further, small pieces of the material on
this brown sack were found in the "vacuuming of JonBenet's bed and in the body bag that
was used to transport her body (SMF 181; PSMF 181), thereby suggesting that either the bag
had been near JonBenet or that someone who had touched the bag had also touched
JonBenet. 35


35 Finally, items were left behind that defendants assert they did not own. (Defs.' Br. In Supp.
Of Summ. J. <67> at 18-19.) A baseball bat not owned by the Ramseys found

Page 73

Plaintiff, of course, argues that any evidence suggesting an intruder was staged by
defendants. Even assuming that all the above evidence could have been staged, however,
defendants point to other evidence for which a theory of contrivance by them seems either
impossible or highly implausible. First, defendants note the existence of several
recently-made unidentified shoeprints containing a "HI-TEC" brand mark were found in the
basement imprinted in mold growing on the basement floor. (SMF 151-152; PSMF 151-152.)
Defendants do not own any "HI-TEC" brand shoes and none of their shoes match the
shoeprint marks. (SMF 153; PSMF 153.) Likewise, another similar partial shoeprint was found
near where JonBenet's body was found. (SMF 155; PSMF 155. ) The owner of the "HI-TEC"
shoe that made the footprints at the murder scene has never been identified. (SMF 154, 155;
PSMF 154, 155. ) In addition, on the wine-cellar door, there is a palmprint that does not match
either of defendants' palmprints. (SMF 156; PSMF 156.) The individual to whom it belongs
has never been identified. (SMF 156; PSMF 156.)

Of course, the existence of these shoeprints and palmprint is not dispositive, as they could
have been made prior to the time of


on the north side of the house has fibers consistent with fibers found in the carpet in the
basement where JonBenet's body was found. (SMF 185; PSMF 185.) Brown cotton fibers on
JonBenet's body, the paintbrush, the duct tape and on the ligature were not sourced and do
not match anything in the Ramsey home. (SMF 181; PSMF 181.)

Page 74

the murder, but they are clearly consistent with an argument that an intruder was in the
basement area. The defendants also offer other undisputed evidence that they contend
clearly establishes that another male was near JonBenet at the time she was murdered.
Specifically, defendants note that unidentified male DNA--which does not match that of a;ny
Ramsey- -was found under JonBenet's fingernails. 36 (SMF 173-174, 177; PSMF 173, 177. )
In addition, male DNA, again not matching any Ramsey, was found in JonBenet's underwear.
( SMF 175 ; PSMF 175.) Likewise, an unidentified Caucasian "pubic or auxiliary" hair, not
matching any Ramsey, was found on the blanket covering JonBenet' body. (SMF 179-180;
PSMF 179-180.) As noted, some wood fragments from the paintbrush used to create the
garotte were found in JonBenet's vagina. Thus, given the existence of undisputed evidence
that JonBenet was sexually assaulted and the discovery of DNA evidence on her person from
an unidentified male--as well as no DNA from any Ramsey--the defendants argue that the
inference of an intruder becomes almost insurmountable. As to the above described
evidence, plaintiff offers no explanation consistent with his theory of the crime. Finally,
defendants note the existence of evidence that they contend establishes, almost to a
certainty, that JonBenet was 36


36 As noted supra, there is evidence that JonBenet was alive at the time she was strangled
and that she may have struggled with her attacker. Supra at 16-17.

Page 75

taken from her bedroom and held against her will by an intruder. Specifically, defendants point
to evidence from the autopsy repor: indicating that a stun gun was used on JonBenet. (SMF
140.) Because it is logical to assume that JonBenet would struggle against an attacker she
did not already know, the use of a stun gun helps to explain why no evidence of a struggle
was found in any of the bedrooms in defendants' home. (SMF 143; PSMF 143,) Further,
defendants state that they have never owned nor operated a stun gun. (SMF 142.) In addition,
no stun gun was ever located at defendants' home nor is there any. evidence that defendants
have ever owned such a gun. Further, the parties agree that a stun gun could be used and
not heard in other rooms of a house. (SMF 141; PSMF 140-141.)

Plaintiff does not agree that a stun gun was used, however, arguing that the evidence
establishing the same is inconclusive. Yet, although plaintiff disputes that a stun gun was
used in the murder, he has failed to produce any evidence to suggest what caused the
burnlike marks on JonBenet. Specifically, defendants have presented photographs of
JonBenet taken Christmas morning that clearly reveal the absence of any marks on her neck.
(See Defs.' Ex. 33 attach. To Summ. J. Mot. <68> .) Yet, the autopsy report clearly shows
reddish, burn-type marks on JonBenet's neck and back. (See Autopsy Photos attach. as
Defs.' Ex. 27-30 to Smit. Dep.) Moreover, defendants have presented the testimony of

Page 76

Dr. Michael Doberson, a forensic pathologist who examined the Boulder Coroner's autopsy
report and autopsy photos, and who concluded that the injuries to "the right side of the face
as well as on the lower left back are patterned injuries most consistent with the application of
a stun gun." (Report of Michael Doberson, M.D., Ph.D. at 5(A) attach. as Ex. 3 to Defs.' Ex.
Vol. I, Part A. ) Defendants' evidence that a stun gun was used, then, stands unrebutted. In
other words, plaintiff has failed to produce evidence that creates a material dispute of fact on
this point or that offers an alternative explanation for the origin of these marks, other than a
stun gun. Accordingly, the Court concludes that the undisputed facts indicate that a stun gun
was used in the commission of the murder.

In addition, the Court notes that defendants have provided' compelling testimony from
homicide detective Andrew Louis Smit, who is widely regarded as an expert investigator, in
support of the intruder theory. (SMF 168; PSMF 168.) Detective Smit has reviewed the
evidence and prepared a comprehensive CD presentation that summarizes this evidence
and offers the inferences that can be logically drawn from that evidence. From a review of this
evidence, Detective Smit believes that JonBenet was subdued by a stun gun, taken from her
bedroom by an unknown intruder, and then sexually assaulted, tortured and murdered by this
intruder in the basement of the defendants' home in Boulder, Colorado. (SMF 3;

Page 77

PSMF 3.) Detective Smit's conclusion as to the cause and timing of JonBenet' s pre-mortem
injuries is shared by defendants' exper:, the coroner of Arapahoe County, Colorado, Dr.
Michael Doberson. (SMF 4; PSMF 4.)

Although most of Detective Smit' s conclusions derive from his analysis of physical evidence,
he has also testified that he has been unable to finds any motive for defendants to murder
their daughter. ( Smit . Dep. at 146.) Absent from the defendants' family history is any
evidence of criminal conduct, sexual abuse, drug or alcohol abuse or violent behavior. (SMF
117-119; PSMF 117-119.) In addition, there was no evidence that JonBenet's bed was wet on
the night of her murder. (Smit Dep. at 145.) 37


37 The Court has reviewed the autopsy photographs of JonBenet and they are gruesome.
They reveal deep ligature marks around her neck as a result of being strangled by a garotte.
As noted supra at 16-17, the evidence indicates that JonBenet was alive when strangled and
may have tried to pull the garotte off her neck. Indeed, a neighbor heard the sound of
screams. Likewise, part of the wood from the paint brush was found inside her vagina and the
evidence indicates that she was sexually assaulted at a time when she was still alive. Sadly,
JonBenet's last moments were painful and terrifying.

Admittedly, it is not unprecedented for parents to kill their children, sometimes even brutally.
Yet, plaintiff's theory of the motivation for the crime- -that Mrs. Ramsey accidentally hit
JonBenet's head on a hard object, thought she was dead, and then tried to stage a hoax
kidnapping--seems at odds with his belief that although Mrs. Ramsey later became aware
that JonBenet was alive, she nonetheless proceeded to garotte, torture, and sexually assault
her child. If Mrs. Ramsey had accidentally hit her child's head, one would think that, upon
becoming aware that the child was still alive, the mother would have been just as likely to call
an ambulance, as to commit a depraved torture/murder of the child.

Page 78

In contrast, Detective Smit opined that there were several factors that could have motivated
an intruder to commit this horrific crime. First, defendants were prominent in the community
and had thrown several large events at their home, thereby providing a large number of
people the opportunity to learn the house's floor plan. Second, Mr. Ramsey received
considerable attention due to the financial success of his company. In fact, news articles
were published that detailed the company's financial success and mentioned Mr. Ramsey in
great detail. (SMF 121 PSMF 121.) In the weeks leading up to the murder, Detective Smit
notes that defendants had a large party at their home in which they entertained hundreds of
people from their church. Also, Mr. Ramsey had spoken at his company's Christmas party
and praised the employees for passing the one billion dollar mark in 'sales. (Smit Dep. at
148.) Third, Detective Smit states that JonBenet was a "pedophile's dream come true." (SMF
122; PSMF 122. ) JonBenet received considerable public attention as "Little Miss Colorado"
and through several beauty pageants in which she participated. (SMF 121; PSMF 121.) On
December 6, 1996, three weeks before the murder, she was in the Lights of December
Parade, an event thousands of people attended. (Smit. Dep. at


Nevertheless, as any theory behind the motivation for Mrs. Ramsey to murder her child is just
that--a theory--the Court has not factored any of these suppositions into its legal analysis of
the evidence in the case.

Page 79

147. ) In addition, on December 25, 1996, while playing at the home of a neighborhood friend,
JonBenet told her friend's mother that "Santa Claus" was going to pay her a "special" visit
after Christmas and that it was a secret. (SMF 124; PSMF 124.) The person who may have
said this to JonBenet has never been identified. (SMF 125; PSMF 125.)

Based on the above undisputed evidence, defendants contend they are entitled to summary
judgment because there is virtually no evidence to support plaintiff's theory that they
murdered their child, but abundant evidence to support their belief that an intruder entered
their home at some point during the night of December 25, 1996 and killed their daughter. As
a legal matter, if plaintiff cannot prove, by clear and convincing evidence that defendants
committed this crime, he cannot demonstrate that their' statement concerning his status as a
suspect were made with the requisite malice. (Defs.' Br. In Supp. Of Summ. J. <67> at 17.)
Defendants further contend that their legal position is buttressed by the fact that plaintiff has
not yet been cleared as a suspect, by the Boulder Police Department. (Id. at 17-18.)

4. Evidence in Support of Plaintiff's Theory

Plaintiff admits that he has no direct evidence that Mrs. Ramsey committed the murder. (PI.'s
Br. In Opp. To Summ. J. <88> at 9, 11 & 21-22.) Rather, to show malice, he relies solely on
circumstantial evidence to prove that Mrs. Ramsey murdered her

Page 80

daughter and Mr. Ramsey assisted in the subsequent coverup. (Id. ) A plaintiff in a public
figure libel case may successfully prove actual malice by circumstantial evidence.
Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 66B (1989); Herbert v. Lando,
441 U.S. 153, 160 (1979) . See also Hunt v. Liberty Lobby, 720 F.2d 631, 643 (11 th Cir.
19B3) ("Absent admission by defendant that he knew his material was false or that he
doubted its truth, a public figure in prosecuting a libel action must rely upon circumstantial
evidence to prove his case.")

Yet, other than a contention that Mrs. Ramsey authorized the Ransom Note, the
circumstantial evidence proffered in support of plaintiff's claim is based almost exclusively on
the theories espoused by former Detective Steve Thomas in his book.]8 (See ]


8 Plaintiff does offer two arguments, not involving the issue of the identity of the murderer, in
support of a finding of malice. First, plaintiff argues that Mrs. Ramsey's admission that she
destroyed her handwritten book notes is strong evidence of malice. (PI.'s Br. In Opp. To
Defs.' Summ. J. Mot. <88> at 21 (citing to Brown & Williamson Tobacco Corp. v. Jacobson,
827 F.2d 1119, 1134 (7th Cir. 1987) (stating that intentional destruction of evidence is "strong
evidence of malice").) The record, however, establishes that Mrs. Ramsey threw away her
handwritten book notes as she was writing the Book and did not destroy any documents once
this suit was filed. (P. Ramsey Dep. at 21.) Pre-litigation destruction of documents does not
indicate "actual malice." Strange v. Cox. Enters., Inc., 211 Ga. App. 731, 734,440 S.E.2d
503,507 (1994) .

Plaintiff further contends that Mr. Ramsey's admission that he avoided investigating any of the
facts concerning forensic evidence is also evidence of malice. (PI.'s Sr. In Opp. To Defs.'
Summ. J. Mot. . <88) at 22.) Mr. Ramsey did state that he had seen evidence concerning[BR> plaintiff's

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Apr-17-03, 04:24 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
10. "RE: Carnes text"
In response to message #9
   Page 81

generally PI.'s Sr. In Opp. To Defs.' Summ. J. Mot. <88> at 6, 21; PSDMF 44-75.) Further I
whereas Detective Smit's summary testimony concerning the investigation is based on
evidence, Detective Thomas' theories appear to lack substantial evidentiary support. (Id. )
Indeed, while Detective Smit is an experienced and respected homicide detective, Detective
Thomas had no investigative experience concerning homicide cases prior to this case. (Smit.
Dep. at 69.) In short, the plaintiff's evidence that the defendants killed their daughter and
covered up their crime is based on little more than the fact that defendants were present in
the house during the murder.

As the arguments in his brief opposing defendants' summary judgment motion are largely
restatements of the arguments he makes in support of his efforts to have the testimony of his
forensic' document examiners admitted, plaintiff implicitly acknowledges the dearth of
physical evidence supporting his argument. (See id. at 3, 5-6, 9-10, 13-19.) In short, the only
hard evidence, as


possible association with the case and received summaries of the Boulder authorities'
handwriting evidence, which concluded that Mrs. Ramsey probably did not write the Ransom
Note. (J. Ramsey Dep. at 12, 62 & 73-74.) He also asserts that he had no reason to doubt
any of this information. (Id. at 73-74.) As a matter of law, he is entitled to rely on this
information. See New York Times Co v. Conner, 365 F.2d 567, 576 (5th Cir. 1966) (defendant
entitled to rely on single source even if source one-sided). See also McFarlane v. Sheridan
Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996) (stating there is no independent duty
to corroborate information, if no reason to doubt truthfulness.)

Page 82

opposed to theories, that plaintiff proffers to support his accusation that Mrs.Ramsey
murdered her child is evidence indicating that she wrote the Ransom Note. The Court agrees
with plaintiff that, if plaintiff adduced clear and convincing evidence from which a reasonable
jury could infer that Mrs. Ramsey wrote the Ransom Note, this evidence would then be
sufficient to create a jury issue as to whether Mrs. Ramsey killed her child. In other words, if
Mrs. Ramsey wrote the Ransom Note, this Court could conclude, as could a reasonable jury,
that she was involved in the murder of her child.

The question then is whether plaintiff has proffered such clear and convincing evidence. This
Court has earlier ruled that plaintiffs' expert, Mr. Epstein, is qualified to compare Mrs.
Ramsey's handwriting with that contained in the Ransom Note for' the purposes of pointing
out similarities in the two. The Court, however, has concluded that Epstein cannot properly
testify that he is certain that Mrs. Ramsey was the author of the Note. For purposes of
assessing whether plaintiff has met its burden of proof, however, the Court will analyze the
evidence, assuming that Epstein could testify as to his proffered conclusion, as well as
assuming that he could testify only as to similarities between both the Ransom Note and Mrs.
Ramsey's known handwriting samples.

Page 83

5 . Analysis of the Two Theories

a. Consideration of Epstein'. Testimony That There Were Similarities Between Mrs. Ramsey'.
Handwriting and the Ransom Note

As discussed supra, much of the physical evidence is consistent with an inference that an
intruder came into the Ramsey's home and murdered their child. Specifically, there was a
broken window in the basement and the window well for that window showed signs that
someone may have entered the house through it. Indeed, some of the foliage and debris from
that window well was found in the room where JonBenet's body was found. Further, the
evidence of stun gun injuries to JonBenet suggests that she was taken by someone who
wanted to keep her quiet as he removed her from her bedroom; a parent would not need a
stun gun to remove a child from her bedroom. Conversely, the use of a stun' gun by the killer
is totally at odds with plaintiff's theory that the violence against JonBenet began by Mrs.
Ramsey accidentally hit her daughter's head on the bathtub or bathroom floor. In addition, the
presence of a bag containing a rope in a guest bedroom near JonBenet s arguably supports a
notion that some premeditation and preparation attended the crime.

Other physical evidence is consistent with a theory that an intruder was in the home. There
was a recently made shoeprint, in a moldy area in the basement, that matched no shoes
owned by the Ramseys. There was also a palmprint on the door to the small room

Page 84

where JonBenet's body was found that did not match the Ramseys' prints. DNA evidence
was further consistent with the possibility of an intruder, as JonBenet had the DNA of an
unknown male under some of her fingernails and on her underpants. The evidence also
indicated that JonBenet had been sexually assaulted and her vagina contained wood fibers
from the paint brush used to fashion the garotte.

The method by which JonBenet was killed also suggests it more likely that she was killed by
an intruder than by her mother. JonBenet was strangled through the use of a garotte and
bondage device that was sophisticated and employed the use of a series of tightly and neatly
made knots that would appear to have taken some time to make. There is no evidence that
the defendants had the skill to create such a device. Moreover, it is plaintiff's theory' that, after
thinking she had accidentally killed her daughter, Mrs. Ramsey worked quickly, before the
household awoke, to set up a staged kidnapping scenario. The creation of this bondage
device would appear to have required more time and calm than one would think Mrs. Ramsey
could have mustered under the circumstances.

Plaintiff has the burden of proving by clear and convincing evidence that the Ramseys
murdered their child; they have no burden to prove that they did not commit the crime. The
above recited evidence falls well short of the requisite proof that the

Page 85

defendants killed their child. Plaintiff argues, however, that the Ransom Note provides this
necessary proof.

At first blush, and even without an appraisal of the handwriting, the Ransom Note seems to
support plaintiff's argument that the kidnapping was a hoax set up by someone in the house. It
is an extremely long and detailed note of over three pages. Moreover, an examination of the
notepad on which the note was written indicates that the writer had attempted some earlier
drafts of the note. In addition, the writer had apparently not even brought his own materials,
but instead had used a note pad and felt marker from the Ramsey's home. These facts
suggest that the killer had not come prepared with a ransom note already written, as one
would expect a diligent kidnapper to do. Further, one does not assume that an intruder, intent
on beating a hasty retreat, would take the time to practice writing a note or to write a long,
detailed note. These assumptions then might suggest that someone in the house contrived
the note.

Defendants have argued, however, that it is just as plausible that the killer had been hiding
away in the home for many hours, waiting for the household to go to sleep, before he sprung
into action. That waiting time would have allowed him the leisure to write a note. Further, the
length of time that it took to practice and write the note could also conceivably undermine a
notion that Mrs. Ramsey wrote it. Under plaintiff's scenario,

Page 86

Mrs. Ramsey was working quickly to create a staged crime scene before her husband and
son awoke. Given those time constraints, and presumably a desire to provide as little
handwriting as possible for purposes of future analysis, she arguably would not have written
such a long note. Accordingly, the existence of this peculiar, long Ransom Note does not
necessarily favor, as the killer, either an intruder or Mrs. Ramsey.

Thus, the only conceivable piece of evidence by which plaintiff can hope to carry his burden of
proof is evidence that indicates that Mrs. Ramsey actually wrote the note. Factoring into the
analysis the testimony of Mr. Epstein that there are similarities between Mrs. Ramsey's
handwriting and the Ransom Note does not, however, enable plaintiff to meet that burden.
The fact that there may be similarities between the two hardly constitutes persuasive
evidence that Mrs. Ramsey actually wrote the Note. Without that proof, plaintiff cannot show
that Mrs. Ramsey was the killer.

b. Consideration of Epstein'. Testimony That He Was Absolutely Certain that Mrs. Ramaey
Wrote the Ransom Note

The Court has earlier indicated its conclusion that there is insufficient reliability to Mr.
Epstein's methodology to permit him to state his conclusion that Mrs. Ramsey wrote the
Ransom Note. As noted supra, Epstein opined that he is "100 percent certain" that Patsy
Ramsey wrote the Ransom Note and that "there

Page 87

is absolutely no doubt" that she is the author. Supra at 51. The Court believes its conclusion
on the admissibility of this evidence to be correct. Further, as the identify of the writer is
virtually the only evidence that plaintiff can offer to shoulder its burden, then the question of
the identity of the writer is synonymous with the underlying question in this litigation: did Mrs.
Ramsey kill her child. Nevertheless, even if the Court were to permit Epstein to testify as to
the above conclusion, the Court does not believe his testimony would provide the "clear and
convincing evidence" necessary for a reasonable finder of fact to conclude that Mrs. Ramsey
wrote the note.

As stated before, "clear and convincing" evidence requires "a clear conviction, without
hesitancy of the truth." Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 2BS
n. 11 (1990) . The parties have agreed that handwriting analysis is, at best, an inexact and
subjective tool used to provide probative, but not clear and convincing evidence, of a
questioned document's author. (SMF 212; PSMF 212.) Nonetheless, the Court will assume
that there could be cases where the handwriting in question is either so obviously not the
handwriting of a particular individual or so close a match to that person's penmanship, that a
finder of fact could comfortably rely on the handwriting, alone, to reach a particular
conclusion. Indeed, well before the days of forensic handwriting experts, courts have allowed
lay witnesses to

Page 88

testify that they recognized the handwriting of particular documents as the handwriting of
someone with whose penmanship they were familiar. Further, appropriate testimony of
forensic experts can greatly assist the jury in its undertaking.

That said, while there may be cases in which handwriting examination, alone, can be
dispositive, this case is not one of that group. Here, as noted, several factors necessarily
reduce the weight a reasonable juror could give to Epstein's conclusion. First, Epstein did not
consult the original Ransom Note nor obtain original exemplars from Mrs. Ramsey. Second,
as noted by defendants, Epstein deviated from the very methodology that he has previously
asserted was necessary to make a reasoned judgment. Most significant to the Court in its
determination that Epstein's conclusion cannot carry the day for plaintiff, however, is the
unanimity of opinion among six other experts that Mrs. Ramsey cannot be determined to have
been the writer of the Note. As noted supra, the Boulder Police Department and District
Attorney's Office had consulted six other handwriting experts, all of whom reviewed the
original Ransom Note and exemplars. Supra at 21-22. Although two of these experts were
hired by defendants, four were independent experts hired by the pol ice. None of these six
experts were able to identify Mrs. Ramsey as the author of the Ransom Note. Instead, their
consensus was that she "probably did not" write the Ransom Note. Supra at n. 14.

Page 89

Given the contrary opinion of six other experts, whose ability to examine the documents was
necessarily superior to Epstein's, and given Epstein's failure to explain the methodology by
which he can make absolute pronouncements concerning the authorship of a document, this
Court does not believe that a reasonable jury could conclude that Mrs. Ramsey was the
author of the Ransom Note, solely on the basis of Epstein's professed opinion to that effect.
In reaching this conclusion, the Court is aware that it is not permitted to make credibility
judgments in ruling on summary judgment motions. For example, were there six
eyewitnesses on one side of a question and one eyewitness on the other side, the Court
would not take from a jury the factual question on which these witnesses were testifying. With
regard to Epstein's testimony, however, the Court is not attempting to assess credibility. Mr.
Epstein may sincerely believe that Mrs. Ramsey wrote the Note and the jury may well credit
his sincerity. Nevertheless, no matter how earnest Epstein may be, the fact remains that he
has not explained his basis for reaching absolute certainty in his conclusion and, accordingly,
the weight and impact of his testimony would necessarily be less than the weight of the
contrary testimony of six other experts.39


39 The Court's judgment on this matter is the same whether these other six experts were as
vague concerning their methodology as was Epstein or whether they, ip fact, gave solid
explanations for their reasoning.

Page 90

In sum, plaintiff has failed to prove that Mrs. Ramsey wrote the Ransom Note and has thereby
necessarily failed to prove that she murdered her daughter. ) Moreover, the"weight of the
evidence is more consistent with a theory that an intruder murdered JonBenet than it is with a
theory that Mrs. Ramsey did so. For that reason, plaintiff has failed to establish that when
defendants wrote the Book, they "in fact entertained serious doubts as to the truth of the
publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Hemenway v. Blanchard, 163
Ga. App. 668, 671-72, 294 S.E.2d 603, 606 (1982). Accordingly, the Court GRANTS
defendants' motion for summary judgment as to plaintiff's libel claim.

III. Slander

In addition to his claims for libel, plaintiff asserts that. several statements made by defendants
to the press fit within one of the categories of slander per se recognized by Georgia law:
imputing to another a crime punishable by law. O.C.G.A. § 51-5-4 (a) . In particular, plaintiff
refers to defendants' March 24, 2000 appearance on the Today Show with host Katie Couric.
During. the course of the broadcast, the following conversation occurred:

Katie Couric: You pepper the book with fleeting references to some other people that you
seem to question. You talk about Bill McReynolds, who played Santa at your Christmas party.
You also mention his wife who, in a strange twist, wrote a

Page 91

play years before about a girl murdered in a basement.

John Ramsey: The point in the book was to clarify from our viewpoint why these people have
been mentioned a lot in the media, and also to point out that there are legitimate leads that
need to be followed.

. . . .

Katie Couric: You also mention Chris Wolfe, a total stranger whose girlfriend reported that he
disappeared on Christmas night and was very agitated, rather--when he watched the news of
the murder on TV.

John Ramsey: Uh-huh (affirmative).

Katie Couric: Why do you mention him.

John Ramsey: Because he'd been widely mentioned in the news. And we wanted to clarify
the facts that we knew.

John Ramsey: I can tell you when--when we first started looking at--at one particular lead
early on--My reaction was, -This is it. This is the killer." And our investigator said, -"Whoa,
whoa, whoa." He'd say, "Don't do a Boulder Police on me. Don't rush to conclusions."

(Transcript of Today Show, March 24, 2000.) (emphasis added) The parties agree that, as
Mr. Ramsey made the last statement, NBC displayed a picture of Chris Wolf on the screen.

As with the libelous statements discussed above, while not textbook, these statements are
arguably slanderous. With the

Page 92

slander claim, however, the factual predicate for plaintiff's malice argument is weaker than
with the libel claim. Specifically, although the emphasized quote suggests Mr. Ramsey's
belief that an unnamed suspect might be the killer--which was a malicious statement, if Mr.
Ramsey knew that his wife was the killer--plaintiff has not demonstrated that defendant John
Ramsey intended to refer to plaintiff when he made that statement. Moreover, even though
the photograph of plaintiff appeared on the screen when defendant made the statement, it is
undisputed that defendant had no control over NBC's editing decisions.

Nevertheless, even had defendant intended to refer to plaintiff, the statements are still not
malicious, for the reasons discussed supra, with regard to the libel claim. Accordingly, the
Court GRANTS defendants' motion for summary judgment as to, plaintiff's slander claim.


For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment
<67>; GRANTS as to Ms. Wong and GRANTS in part and DENIES in part as to Mr. Epstein
defendants' motion in limine to exclude the testimony of Cina Wong and Gideon Epstein <68>;
and DENIES defendants' motion for oral argument <79>.

Page 93

SO ORDERED, this 31 day of March, 2003.

Julie E. Carnes
United States District Judge

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
May-10-03, 05:39 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
11. "needed"
In response to message #10

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
May-23-03, 04:28 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
12. "links to Thomas' deposition"
In response to message #11
   Thomas was deposed on September 21st, 2001 in relation to the Chris Wolf/Ramsey civil lawsuit.

There are threads covering the deposition, but these links will take you to the entire deposition.

I broke it into 8 parts.



  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Jun-02-03, 01:16 PM (EST)
Click to EMail jameson Click to add this user to your buddy list  
13. "saving quotes that are handy to have"
In response to message #0
Question by Lin Wood: "Are you prepared to state as a fact, sir, that Patsy Ramsey murdered
her daughter?"

Answer by Steve Thomas: "No."

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Jul-01-03, 09:03 AM (EST)
Click to EMail jameson Click to add this user to your buddy list  
14. "email addresses"
In response to message #0
   LAST EDITED ON Jul-22-03 AT 11:40 AM (EST)
Mary Keenan - - boulder.da@co.boulder.co.us

Lin Wood - llwood@linwoodlaw.com

  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top
Charter Member
13317 posts
Nov-26-03, 08:34 AM (EST)
Click to EMail jameson Click to add this user to your buddy list  
16. "Official 2000 transcripts here"
In response to message #14
   "Official 2000 transcripts"


  Alert | IP Printer-friendly page | Edit | Reply | Reply With Quote | Top

Conferences | Topics | Previous Topic | Next Topic