Judge Carnes – Mar 31/03 judgment based on the Wolf suit.

Both sides agreed regarding

Duct tape: "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

Cord: 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). 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.

The Shoe Print: 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)

Palmprint: 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 the murder, but they are clearly consistent with an argument that an intruder was in the basement area.

DNA: 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. (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).

Pubic/auxiliary hair: Likewise, an unidentified Caucasian "pubic or auxiliary" hair, not matching any Ramsey, was found on the blanket covering JonBenet's body. (SMF 179-18; PSMF 179-180).

Sexual Assault: As noted, some wood fragments from the paintbrush used to create the garrote 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.

Stun Gun: 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 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.

Undisputed Intruder Evidence:
Disturbance in the window-well (leaves & white styrofoam packing peanuts that had pooled in the window-well appeared to have been brushed or cleared to either side of center. SMF 132; PSMF 132)

Green foliage tucked under the movable grate over the window-well. (SMF 131; PSMF 131)

Leaf and packing peanuts, consistent with those in the window-well found in the wine-cellar room (SMF 134; PSMF 134).

Lights were on in the basement, when first searched at approximately 6:15 am (SMF 129; PSMF 129).

Butler's door was found ajar (SMF 138; PSMF 138)

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. (SMF 159; PSMF 159) SMF 162; PSMF 162).

"my office has been investigating new and other unpursued leads, most of which involve the possibility that an intruder committed this crime."

Carnes statement went like this (in footnote 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 garrote. As noted supra at 16-17, the evidence indicates that JonBenet was alive when strangled and may have tried to pull the garrote 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 kills 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 believe 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.

>Duct tape: "The black duct tape used on JonBenet's
>mouth has also never been sourced to defendants
And one might wonder if such a recently manufactured roll of the duct tape was infact even available to anyone in Boulder at that time.

>animal hairs were also found on JonBenet's hands that have not been matched
"Sleep-Out Charlie"? Someone who is a vagabond? Contact with animals? Connection to a more rural area? Perhaps Michigan? Works at an animal shelter? Where is the Boulder city/county animal shelter located?

>Cord:Discovery of cord fibers, used to tie JonBenet's
>hands, in the latter's bedroom arguably undermines
>plaintiff's sequence of events.
Yes, an intruder would have the cord there with him, a parent would not.

>
>The Shoe Print: existence of several recently made unidentified
several ?
'recent' ofcourse does not necessarily mean that night, but it is probably a good assumption.
>

>DNA: Clearly the strongest evidence despite any statements by Dr. Lee about spitting on the sidewalk.
>
>Pubic/auxiliary hair: It is not the word auxiliary; drop that "u".
>
>Sexual Assault: inference of an intruder becomes almost
>insurmountable.
I sure agree with that.
>
>Stun Gun: undisputed facts indicate that a stun gun
>was used in the commission of the murder.
And if anyone really did not want the court to so conclude, they could have and would have presented atleast some evidence to the contrary that could show any reasonable other causation for the recently acquired marks.

>
>Lights were on in the basement, when first searched at
>approximately 6:15 am (SMF 129; PSMF 129).
I had not know this. Did they ever dust that toggle switch for prints?

It is true that there are those who STILL will not stop their persecution despite a judges finding. I ran into it just the other day by someone who said she didn't have all the evidence and her ruling is not worth the paper it's written on.

I'm sure there is much they consider evidence that was NOT presented for cosideration. Such as the fact that Patsy had a manicure before going on TV, that John made arrangements to fly back to Atlanta on the day JB was killed, the fact that Patsy wore the same clothes two days in a row, the fact that John was in the shower when Patsy woke up, the fact that Patsy's fingerprints were on a bowl, the fact that Patsy could have owned beaver fur boots, the fact that JB had been to the doctor a lot etc.....

All of these erroneous things seem to be important to some people, but obviously not to a judge. It's encouraging to know that at least some of the people in our legal system are fair and impartial and make decisions based on evidence instead of emotion and personal bias.

Actually it's axillary (armpit- drop the u and the i and add an l), but far be it for me, when copying from a Judge's document, to change the way in which it was typed (spelling and quotation marks and all). I'm thinking the reason it is in quotation marks might be in reference to how it was labeled in the documents provided to her during the dog-fight(?).

"The Ransom Note is believed by all parties to have been written by the killer or an accomplice of the killer and remains an extremely important clue in the murder investigation (PSDMF 14.)

The Ransom Note was quite long, and in fact is one of the longest ransom notes in the history of kidnapping cases. (PSDMF 17.) This fact is important because the longer a document is, the harder it becomes to disguise one's handwriting. (PSDMF 19.)

The author of the Ransom Note instructs Mr. Ramsey to "use that good southern (sic) common sense," an obviously inaccurate reference as Mr. Ramsey was originally from Michigan, whereas Mrs. Ramsey was originally from West Virginia. (Id - refers to Ransom Note at 3.)

In addition, the Ransom Note was drafted on paper taken from the middle of a pad of paper located at defendants' home and with a pen found at defendants' home. Additional sheets were missing from the pad and were never located at defendants' home. The pen used to write the Ransom Note was sourced to defendants' home and found placed back in its normal place by the phone. Finally, there was another page in the pad that had written on it "Mr. and Mrs. I," which many believe to have been an early "false start" of the Ransom Note. (PSDMF 51.)

Both parties agree that the Ransom Note is not an ideal specimen for handwriting analysis, primarily due to the type of writing instrument, a broad fiber-tip pen, used to draft the note. This type of pen distorts and masks fine details to an extent not achievable by other types of pen, as for example a ball point pen. (SMF 243; PSMF 243.) In addition, the stroke direction used to construct certain letters and subtle handprinting features, such as hesitations and pen lifts, are difficult to ascertain because of the pen used in the Ransom Note. (SMF 244; PSMF 244). Finally, the handwriting in the original Ransom Note showed consistency throughout the entire writing. (SMF 246; PSMF 246.) One of the most common means to disguise one's handwriting is to attempt to make the script erratic throughout the text. In sum, for the above reasons, the Ransom Note is not an ideal specimen for handwriting analysis. Nevertheless, the writer does not appear to have been trying to disguise his or her handwriting.

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 Ransom Note." (SMF 200; PSMF 200.)

Lloyd Cunnigham, a private forensic document examiner hired by the 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.)

"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; 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 original versions of writing when engaging in handwriting analysis, plaintiff asserts it was impossible for his experts to consult with materials because defendants failed to provide him with original exemplars. (PSMF 259-260.) (Footnote: 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.) Mr. Epstein, however, consulted with some of his peers, who concur with his analysis. (Footnote: 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. Epstein. (See Notice of Objections to Pl.'s Exhibits (91) at 2.) Defendants assert 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.) 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 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 the note contains proof-reader marks of the kind often used by newspaper reporters and journalists. (PSDMF 41.) (Footnote: 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.) 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; SMF 279). Plaintiff's ex-girlfriend 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 author given her bachelor's degree in journalism, one should also note that plaintiff, himself, has a Masters' degree in journalism. (Id. 13.)