http://www.jameson245.com/carn1.pdf
http://www.jameson245.com/carn2.pdf
http://www.jameson245.com/carn3.pdf
http://www.jameson245.com/carn4.pdf
http://www.jameson245.com/carn5.pdf
http://www.jameson245.com/carn6.pdf
http://www.jameson245.com/carn7.pdf
http://www.jameson245.com/carn8.pdf
http://www.jameson245.com/carn9.pdf

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:

DISTRICT ATTORNEY'S OFFICE
TWENTIETH JUDICIAL DISTRICT
MARY I KEENAN. DISTRICT ATTORNEY
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.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ROBERT CHRISTIAN WOLF,
Plaintiff,

v.

JOHN BENNET RAMSEY and
PATRICIA PAUGH RAMSEY,
Defendants.

CIVIL ACTION NO 1:00-CV-1187-JEC

ORDER

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

BACKGROUND

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
summary

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
alert

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.

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
also

========================================

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
180.)

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

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
as

========================================

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. (
SMF

========================================

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
2.)

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.)

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
that:

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

DISCUSSION

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
community.

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).

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
writing,

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
POSSIBLE.

(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
inadmissible.

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.)