FOOTNOTES (Citations 1-39)

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FOOTNOTES (Citations 1-39)

Post by Mama2JML on Fri Mar 22, 2013 7:00 am

Footnotes

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].

2. Steven Thomas is a former Boulder Police Detective who was assigned, from January 1997 through June 1998, to investigate Jon-Benet'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 Pl's Resp. To Defs.' Not. Of Objection [95] at 2.)

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 Jon-Benet'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 handwriting 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.

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 eDep. at 202.)

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.

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 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 [her]." (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 exist ed 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. 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.)

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

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.)

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

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 [R]ansom [N]ote." (SMF ¶ 200; PSMF ¶ 200.) Lloyd Cunningham, a private forensic document examiner hired by defendants, concluded that there were no 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.)

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 PL'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 Pl's Resp. To Defs.' Not. Of Objections to Pl's Exhibits [96] at 3-4.)

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.)

18. Mr. Helgoth was the suicide victim whose body was found near a stun gun and HI-TEC boots. See, supra at 1338.

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 [sic] Ramsey murder investigation." (SMF ¶ 292; PSMF ¶ 292.) In the letter, he claimed that John Ramsey sexually abused JonBenet Ram sey, 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.)

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

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, 119 S.Ct. 1167; Daubert, 509 U.S. at 589, 113 S.Ct. 2786. When the ex pert'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, 119 S.Ct. 1167 (emphasis added (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786)).

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)

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.)

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, 113 S.Ct. 2786. "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).

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

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

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

28. The nonmoving party may meet its burden through affidavit and deposition testimony, answers to interrogatories, and the like. Celotex, All U.S. at 324, 106 S.Ct. 2548.

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

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

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

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

33. Of course, plaintiff's primary theory, taken from Detective Steve Thompson's book, is that Mrs. Ramsey murdered her daughter and staged the scene. According to this theory, Mr. Ramsey became complicit only the next day, after the Note was discovered, when he realized that the handwriting on the Note was his wife's. Supra at 1329. Under this pro posed timeline, he would not have been involved in making the bondage device.

34. The paintbrush, whose middle piece was used to fashion the garrote, was found in the paint tray in the boiler room in the basement. Supra at 1331.
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35. Finally, items were left behind that defendants assert they did not own. (Defs.' Br. In Supp. Of Summ. J. [67] at 18-19.) A baseball bat not owned by the Ramseys found 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 ¶ 85; PSMF ¶ 185.) Brown cotton fibers on JonBenet's body, the paintbrush, the duct tape and on the ligature were not sourced and do not match anything in the Ramsey home. (SMF ¶ 181; PSMF ¶ 181.)

36. As noted supra, there is evidence that Jon-Benet was alive at the time she was strangled and that she may have struggled with her attacker. Supra at 1332-1333.

37. The Court has reviewed the autopsy photographs of JonBenet and they are gruesome. They reveal deep ligature marks around her neck as a result of being strangled by a garotte. As noted supra at 1332-1333, the evidence indicates that JonBenet was alive when strangled and may have tried to pull the garotte off her neck. Indeed, a neighbor heard the sound of screams. Likewise, part of the wood from the paint brush was found inside her vagina and the evidence indicates that she was sexually assaulted at a time when she was still alive. Sadly, JonBenet's last moments were painful and terrifying.
Admittedly, it is not unprecedented for parents to kill their children, sometimes even brutally. Yet, plaintiff's theory of the motivation for the crime—that Mrs. Ramsey acciden tally hit JonBenet's head on a hard object, thought she was dead, and then tried to stage a hoax kidnapping—seems at odds with his belief that although Mrs. Ramsey later became aware that JonBenet was alive, she nonetheless proceeded to garotte, torture, and sexually assault her child. If Mrs. Ramsey had accidentally hit her child's head, one would think that, upon becoming aware that the child was still alive, the mother would have been just as likely to call an ambulance, as to commit a depraved torture/murder of the child. Nevertheless, as any theory behind the motivation for Mrs. Ramsey to murder her child is just that—a theory—the Court has not factored any of these suppositions into its legal analysis of the evidence in the case.

38. Plaintiff does offer two arguments, not involving the issue of the identity of the murderer, in support of a finding of malice. First, plaintiff argues that Mrs. Ramsey's admission that she destroyed her handwritten book notes is strong evidence of malice. (Pl's Br. In Opp. To Defs.' Summ. J. Mot. [88] at 21 (citing to Brown & Williamson Tobacco Corp. v. Jacobson,827 F.2d 1¶ 19, 1134 (7th Cir. 1987)) (stating that intentional destruction of evidence is "strong evidence of malice").) The record, however, establishes that Mrs. Ramsey threw away her handwritten book notes as she was writing the Book and did not destroy any documents once this suit was filed. (P. Ramsey Dep. at 21.) Pre-litigation destruction of documents does not indicate "actual malice." Stange v. Cox. Enters., Inc.,211 Ga.App. 731, 734, 440 S.E.2d 503, 507 (1994).
Plaintiff further contends that Mr. Ramsey's admission that he avoided investigating any of the facts concerning forensic evidence is also evidence of malice. (Pl's Br. In Opp. To Defs.' Summ. J. Mot. [88] at 22.) Mr. Ramsey did state that he had seen evidence concerning plaintiff's possible association with the case and received summaries of the Boulder authorities' handwriting evidence, which concluded that Mrs. Ramsey probably did not write the Ransom Note. (J. Ramsey Dep. at 12, 62 & 73-74.) He also asserts that he had no reason to doubt any of this information. (Id. at 73-74.) As a matter of law, he is entitled to rely on this information. See New York Times Co. v. Connor,365 F.2d 567, 576 (5th Cir. 1966) (defendant entitled to rely on single source even if source one-sided). See also McFarlane v. Sheridan Square Press, Inc.,91 F.3d 1501, 1510 (D.C.Cir.1996) (stating there is no independent duty to corroborate information, if no reason to doubt truthfulness.)

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

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