Page 71

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 159; PSMF l59.) (SMF 162; PSMF 162.) The black duct tape used on JonBenet's mouth has also never been sourced to defendants. ( SMF 170; PSMF 170.) Animal hair, alleged to be from a beaver, was found on the duct tape. (SMF 183; PSMF 183.) Yet, nothing in defendants' home matches the hair (SMF 183; PSMF 183.), thereby suggesting either that the duct tape had been obtained from outside the home or that it had been carried outside the home at some point. Dark animal hairs were also found on JonBenet's hands that have not been matched to anything in defendants' home. (SMF 184; PSMF 184.)

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

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

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

---

Page 72

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

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

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

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

---

Page 73

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

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

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

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

---

Page 74

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

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

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

---

Page 75

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

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

---

Page 76

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

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

---

Page 77

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

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

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

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

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

---

Page 78

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

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

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

---

Page 79

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

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

4. Evidence in Support of Plaintiff's Theory

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

---

Page 80

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

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

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

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

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

---

Next Pages 81-93