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generally PI.'s Sr. In Opp. To Defs.' Summ. J. Mot. [88] at 6, 21; PSDMF 44-75.) Further I whereas Detective Smit's summary testimony concerning the investigation is based on evidence, Detective Thomas' theories appear to lack substantial evidentiary support. (Id. ) Indeed, 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 plaintiff's 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

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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. Conner, 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.)

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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.

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5 . Analysis of the Two Theories

a. Consideration of Epstein'. Testimony That There Were Similarities Between Mrs. Ramsey'. 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 plaintiff's 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 door to the small room

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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 plaintiff's 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

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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 plaintiff's 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 plaintiff's scenario,

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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, 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'. Testimony That He Was Absolutely Certain that Mrs. Ramaey 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

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is absolutely no doubt" that she is the author. Supra at 51. 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, 2BS n. 11 (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 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

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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 21-22. Although two of these experts were hired by defendants, four were independent experts hired by the pol ice. 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 did not" write the Ransom Note. Supra at n. 14.

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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

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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, ip fact, gave solid explanations for their reasoning.

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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 (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 plaintiff's libel claim.

III. Slander

In addition to his claims for libel, plaintiff asserts that. several statements made by defendants to the press fit within one of the categories of slander per se recognized by Georgia law: imputing to another a crime punishable by law. O.C.G.A. § 51-5-4 (a) . In particular, plaintiff refers to defendants' March 24, 2000 appearance on the Today Show with host Katie Couric. During. the course of the broadcast, the following conversation occurred:

Katie Couric: You pepper the book with fleeting references to some other people that you seem to question. You talk about Bill McReynolds, who played Santa at your Christmas party. You also mention his wife who, in a strange twist, wrote a

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play years before about a girl murdered in a basement.

John Ramsey: The point in the book was to clarify from our viewpoint why these people have been mentioned a lot in the media, and also to point out that there are legitimate leads that need to be followed.

. . . .

Katie Couric: You also mention Chris Wolfe, a total stranger whose girlfriend reported that he disappeared on Christmas night and was very agitated, rather--when he watched the news of the murder on TV.

John Ramsey: Uh-huh (affirmative).

Katie Couric: Why do you mention him.

John Ramsey: Because he'd been widely mentioned in the news. And we wanted to clarify the facts that we knew.

John Ramsey: I can tell you when--when we first started looking at--at one particular lead early on--My reaction was, -This is it. This is the killer." And our investigator said, -"Whoa, whoa, whoa." He'd say, "Don't do a Boulder Police on me. Don't rush to conclusions."

(Transcript of Today Show, March 24, 2000.) (emphasis added) The parties agree that, as Mr. Ramsey made the last statement, NBC displayed a picture of Chris Wolf on the screen.

As with the libelous statements discussed above, while not textbook, these statements are arguably slanderous. With the

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slander claim, however, the factual predicate for plaintiff's malice argument is weaker than with the libel claim. Specifically, although the emphasized quote suggests Mr. Ramsey's belief that an unnamed suspect might be the killer--which was a malicious statement, if Mr. Ramsey knew that his wife was the killer--plaintiff has not demonstrated that defendant John Ramsey intended to refer to plaintiff when he made that statement. Moreover, even though the photograph of plaintiff appeared on the screen when defendant made the statement, it is undisputed that defendant had no control over NBC's editing decisions.

Nevertheless, even had defendant intended to refer to plaintiff, the statements are still not malicious, for the reasons discussed supra, with regard to the libel claim. Accordingly, the Court GRANTS defendants' motion for summary judgment as to, plaintiff's slander claim.

CONCLUSION

For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment [67]; GRANTS as to Ms. Wong and GRANTS in part and DENIES in part as to Mr. Epstein defendants' motion in limine to exclude the testimony of Cina Wong and Gideon Epstein [68]; and DENIES defendants' motion for oral argument [79].

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SO ORDERED, this 31 day of March, 2003.

Julie E. Carnes
United States District Judge

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