II. Summary Judgement Motion

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II. Summary Judgement Motion

Post by Mama2JML on Fri Mar 22, 2013 6:54 am

II. Summary Judgment Motion
As noted, plaintiffs complaint asserts both a libel and slander claim, two subcategories of defamation. See Nida v. Echols,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, plaintiffs success in this litigation requires 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.
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The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. 2548; Apcoa, Inc. v. Fidelity Nat'l Bank,906 F.2d 610, 611 (11th 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, 106 S.Ct. 2548. 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, 106 S.Ct. 2548 (quoting FED. R. Crv. P. 56(e)). While the court is to view all evidence and factual inferences in a light most favorable to the nonmoving party, Samples v. City 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A fact is material when it is identified as such by the controlling substantive law. Id. at 248, 106 S.Ct. 2505. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50, 106 S.Ct. 2505. 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.' " Matsushita Electric Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87,106 S.Ct. 1348, 89 L.Ed.2d 538 (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, All U.S. at 249-50, 106 S.Ct. 2505. 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-l(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 Enterprises, Inc. v. Thrasher,264 Ga. 235, 237, 442 S.E.2d 740, 742 (1994). In addition, "[t]o be actionable, the libel must be "published"—i.e., communicated to a third party." Mullinax v. Miller,242 Ga.App. 811, 814, 531 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 rale, 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
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judgment motion in a defamation action, the "[t]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 [truly] one for a jury. In considering whether a writing is defamatory as a matter of law, [the court should] look ... at what construction would be placed on it by the average reader." 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, Dilson 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 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 journalism. 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 all over 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 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 Jon-Benet Ramsey. He definitely caught everyone's attention with that remark. Detectives Ron Gosage and Steve Thornas
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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, The Death of Innocence: The Untold Story of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth at 204-05 (2000) hereinafter "The Death of Innocence".)
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 accused the company I worked for, Lockheed Martin, of selling arms to South American countries.
(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." 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 thenface—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 plaintiffs 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 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 by 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,
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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.
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 plaintiffs suspicious behavior. Likewise, plaintiff was questioned by the police concerning JonBenet's murder.29 Yet, 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 [who] 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. Robert Welch, Inc.,418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). Actual malice, in the New York Times Co. v. Sullivan,376 U.S. 254,
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280, 84 S.Ct. 710, 11 L.Ed.2d 686, (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:
producefs] 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 [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 285 n. 11, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (internal quote omitted). In other words, the clear and convincing evidence "placets] in the ultimate factfinder an abiding conviction that the truth of [the] factual contentions are `highly probable'." Colorado v. New Mexico,467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (citing C. McCorick, LAW OF EVIDENCE § 230, p. 679 (1954)).
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 that:
[a]fter a half-decade investigation into the murder of JonBenet Ramsey, and year-long grand jury investigation, 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 [defendants].
(Defs.' Br. In Supp. Of Summ. J. [67] at 19-20; see also SMF ¶¶ 85, 91-93; PSMF ¶¶ 185; 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.)
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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 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 windowwell 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 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 winecellar 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
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was found ajar that morning. (SMF ¶ 137; PSMF ¶ 37.) 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 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 ¶ 39; PSMF ¶ 139.) Hence, a 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 defendants33 possessed such unusual and specialized skills, there is no evidence that establishes this fact. Obviously, if defendants lacked the skills to fashion this bondage device, then it necessarily had to be an intruder who crafted the implement.
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 ¶ 59; PSMF ¶ 59.) (SMF ¶ 62; PSMF ¶ 62.) The black duct tape used on JonBenet's mouth has also never been sourced to defendants. (SMF ¶ 70; PSMF ¶ 70.) Animal hair, alleged to be from a beaver, was found on the duct tape. (SMF ¶ 83; PSMF ¶ 83.) Yet, nothing in defendants' home matches the hair (SMF ¶ 83; PSMF ¶ 83.), 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 ¶ 84; PSMF ¶ 84.)
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 Jon-Benet'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.) This evidence is inconsistent with plaintiffs proposed timeline of events. That is, plaintiff has hypothesized that Mrs. Ramsey, in a moment of anger, had
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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 plaintiffs 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
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 ¶ 56; 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 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 any Ramsey—was found under JonBenet's fingernails.36 (SMF ¶¶ 173-174, 177; PSMF ¶ 73, 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
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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 taken from her bedroom and held against her will by an intruder. Specifically, defendants point to evidence from the autopsy report 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 K 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 1f 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 burn like marks on Jon-Benet. 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 Jon-Benet's neck and back. (See Autopsy Photos attach, as Defs.' Ex. 27-30 to Smit. Dep.) Moreover, defendants have presented the testimony of 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; PSMF ¶ 3.) Detective
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Smit's conclusion as to the cause and timing of JonBenet's pre-mortem injuries is shared by defendants' expert, 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 find 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 ¶ 117-11 there was no evidence that JonBenet's bed was wet on the night of her murder. (Smit Dep. at 145.)37
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.) Jon-Benet 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 147.) In addition, on December 25, 1996, while playing at the home of a neighborhood friend, Jon-Benet 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
[ 253 F.Supp.2d 1359 ]

summary judgment because there is virtually no evidence to support plaintiffs 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 Plaintiffs Theory
Plaintiff admits that he has no direct evidence that Mrs. Ramsey committed the murder. (Pl'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 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, 668, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Herbert v. Lando,441 U.S. 153, 160, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). See also Hunt v. Liberty Lobby,720 F.2d 631, 643 (11th Cir. 1983) ("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 plaintiffs claim is based almost exclusively on the theories espoused by former Detective Steve Thomas in his book.38 (See generally PL's Br. In Opp. To Defs.' Summ. J. Mot. [88] at 6, 21; PSDMF ¶¶ 44-75.) Further, whereas Detective Smit's summary testimony concerning the investigation is based on evidence, Detective Thomas' theories appear to lack substantial evidentiary support. (Id.) Indeed
[ 253 F.Supp.2d 1360 ]

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 plaintiffs 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 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.
5. Analysis of the Two Theories
a. Consideration of Epstein's Testimony That There Were Similarities Between Mrs. Ramsey's 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 plaintiffs 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
[ 253 F.Supp.2d 1361 ]

door to the small room 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 plaintiffs 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 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 plaintiffs 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 plaintiffs scenario, 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,
[ 253 F.Supp.2d 1362 ]

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's Testimony That He Was Absolutely Certain that Mrs. Ramsey 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 is absolutely no doubt" that she is the author. Supra at 1347. 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, 285 n. 11, 110 S.Ct. 2841, 111 L.Ed.2d 224 (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 f 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 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 1334-1335. Although two of these experts were hired by defendants, four were independent experts hired by the police. 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
[ 253 F.Supp.2d 1363 ]

did not" write the Ransom Note. Supra at n. 14.
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
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, 88 S.Ct. 1323, 20 L.Ed.2d 262 (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 plaintiffs libel claim.

“Imperfection is beauty, madness is genius and it's better to be absolutely ridiculous than absolutely boring.”
~Marilyn Monroe

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