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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

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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

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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

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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.)

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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

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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.)

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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 [plaintiff's] 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

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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.)

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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

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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

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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.)

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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

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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

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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.)

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