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[Ramsey Legal Cases] Wolf vs Ramsey Civil Case 1:00-CV-1187-JEC
Carnes Order March 31, 2003 (Page 51 thru 60)

Pages 01-10
Pages 11-20
Ransom Note
Pages 21-30
Pages 31-40
Pages 41-50
Pages 51-60
Summary Judgment
Libel Claim
Pages 61-70
Lou Smit
Intruder Theory
Pages 71-80
Intruder Theory
Doberson/Stun Gun
Pages 81-93
Carnes Order
Page 1-93


SMF - Statement of Material Fact
PSMF - Plaintiff's Statement of Material Fact
PSDMF - Plaintiff's Statement Disputing Material Fact
Dep - Deposition
Def's - Defendants/Defense

Page 51

Ramsey's known handwriting and the Ransom Note. Any criticism of Epstein's analysis by defendants goes to the weight of his testimony. Of more concern to the Court, however, is the reliability of Epstein's ultimate conclusion concerning the identity of the writer of the Note. As noted, Epstein claims that he is "100 percent certain that Patsy Ramsey wrote the (R]anson [N]ote," and in his professional opinion "there is absolutely no doubt she is the author." (Pl. 's Stmt. Of Disp. Mat. Facts (88] 1.) (emphasis added)

Nowhere in the submissions provided by plaintiffs is there any attempt to show by what methodology Mr. Epstein reaches a conclusion of absolute certainty that a given person is, in fact, the writer of a questioned document. 26 Defendants persuasively argue that Epstein was unable to identify any unique.


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.")

Page 52

characteristics of Mrs. Ramsey's handwriting that were mimicked in the Ransom Note. (Def. 's Mtn. in Lim. [68 ] at 9). Instead. Epstein bases his conclusion on perceived similarities between the two. Id. Yet, as noted by defendants, Epstein never indicates how many similarities or what kind of similarities are required before he can reach absolute certainty, 50% certainty, or no certainty, at all. Further, as defendants also note, whenever encountering any differences between the known writing of Mrs. Ramsey and the Ransom Note, Epstein finds refuge in the explanation that Mrs. Ramsey must have been trying to disguise her handwriting. (See id.) While it is, of course, possible that differences between known writing and questioned documents are the result of a known writer's efforts to disguise her handwriting, it is just as plausible that the differences can occur because the' known writer is not the author of the questioned matter. On that issue, Epstein offers no hint of the methodology that he employs to distinguish between disguised writing and writing that is simply being provided by two different people.

The underlying notion behind Daubert, and all good science, is that a given premise or principle should be capable of being tested to determine whether the principle is, in fact, sound. Thus, if Epstein indicated, for example, that whenever a writer of known material has x number of similarities, there is a given probability that the writer wrote the note--and if this

Page 53

methodology had been tested by reliable means in the past--then Epstein would have shown reliability in the methodology that he used to reach a determination of the likelihood of his conclusion. As it is, however, Epstein's explanation for his conclusion seems to be little more than "Trust me; I'm an expert." Daubert case law has indicated that such an assertion, which seems to be based more on intuition than on scientific reasoning, is insufficient. Accordingly, the Court concludes that while Epstein can properly assist the trier of fact by pointing out marked differences and unusual similarities between Mrs. Ramsey's writing and the Ransom Note, he has not demonstrated a methodology whereby he can draw a conclusion, to an absolute certainty, that a given writer wrote the Note. 27

Such a holding is consistent with numerous other districts that have allowed a qualified handwriting' expert to testify as to the "similarities" between a challenged document and a known exemplar, but have not allowed the expert to express his ultimate "opinion" on the matter. See, e.g., United States v. Van Wyk, 83 F.Supp.2d 515, 524 (D.N.J. 2000) (allowing an expert to testify about "the specific similarities and idiosyncrasies between the known writings and the questioned


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.

Page 54

writings, as well as testimony regarding, for example, how frequently or infrequently in his experience, he has seen a particular idiosyncrasy.") ; United States v. Rutherford, 104 F.Supp.2d 1190, 1194 (D. Neb. 2000) (limiting a forensic document examiner's testimony to "identifying and explaining the similarities and dissimilarities between the known exemplars and the questioned documents."); United States v. Hines, 55 F.Supp.2d 62, 68 (D. Mass. 1999) (permitting forensic examiner to testify about unique features common or absent in the writings) . But see United States v. Lewis, 220 F.Supp.2d 548, 552 (S.D.W.Va. 2002) (finding that proponent of forensic document expert had failed to establish testimony's reliability); United States v. Saelee, 162 F.Supp.2d 1097, 1106 (D. Alaska 2001) (excluding handwriting expert testimony in its entirety as inherently unreliable). Therefore, Defendants' Motion in Limine to Exclude the Testimony of Mr. Epstein is GRANTED, IN PART, AND DENIED, IN PART.

II. Summary Judgment Motion

As noted, plaintiff's complaint asserts both a libel and slander claim, two subcategories of defamation. See Nida v. Nichols, 31 F.Supp.2d 1358, 1375 n.33 (N.D. Ga. 1998). Plaintiff asserts that defendants' mention of him as a suspect in the Book is a knowing falsehood because defendants knew that Mrs. Ramsey actually committed the murder and that Mr. Ramsey helped her cover it up. In short, plaintiff's success in this litigation requires

Page 55

him to prove, by clear and convincing evidence, that defendants killed their child.

Defendants have moved for summary judgment (67] . In addition, defendants have moved for oral argument on defendants' motion for summary judgment [79] . Because the parties have provided thorough briefs, the Court finds it unnecessary to hold an oral argument. Accordingly, defendants' Motion for Oral Argument (79] is DENIED. Based on the record presently before it, and for the reasons stated below, the Court concludes that defendants' motion for summary judgment should be GRANTED.

A. Summary Judgment Standard

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. at 322 23.

Page 56

The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323; Apcoa~ Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 {II th Cir. 1990) . The movant is not required to negate his opponent's claim, however. The movant may discharge his burden by merely "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. After the movant has carried his burden, the nonmoving party is then required to "go beyond the pleadings" and present competent evidence28 designating "'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting FED. R. CIV. P. 56(e)). While the cour~ is to view all evidence and factual inferences in a light most favorable to the nonmoving party, Samples v. Ci ty of Atlanta, 846 F. 2d 1328, 1330 ( 11th Cir. 1988), . "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).

A fact is material when it is identified as such by the controlling substantive law. Id. at 248. An issue is genuine when the evidence is such that a reasonable jury could return a


28 The nonmoving party may meet its burden through affidavit and deposition testimony, answers to interrogatories, and the like. Celotex, 477 U.S. at 324.

Page 57

verdict for the nonmovant. Id. at 249-50. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts. . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushi ta Electric Indus. Co. v. Zeni th Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted) . An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Thus, to survive a motion for summary judgment, the nonmoving party must come forward with specific evidence of every element material to that party's case so as to create a genuine issue for trial.

B. Libel Claim

Georgia law defines libel as "a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridicule." O.C.G.A. § 51-5-1 (a) . Truth is an absolute defense under Georgia law: if plaintiff cannot prove falsity, the libel and slander claim must fail. O.C.G.A. § 51-5-6; Cox Enter.prise, Inc. v. Thrasher, 264 Ga. 235, 237, 442 S.E.2d 740, 742(1994). In addition, "[t]o be actionable, the libel must be "published"--i.e., communicated to a third party." Mullinax v. Miller, 242 Ga. App. 811, 814, 531

Page 58

S.E.2d 390, 392 (2000). There is no dispute over the fact that the allegedly defamatory comments in this case, contained in defendants' book, were indeed published. The parties do disagree as to whether the statements were libelous and, if so, whether defendants acted with malice.

1. Were the statements libelous?

As a general rule, the question of whether a published statement is defamatory is a question for the jury. Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S.E.2d 16, 17 (1992) (citations omitted). Nevertheless, when faced with a summary judgment motion in a defamation action, the "[t]rial judge should read and construe the publication as a whole, and thereafter may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is [truly] one for a jury. In' considering whether a writing is defamatory as a matter of law, [the court should] look. . . at what construction would be placed on it by the average reader.H Mead, 203 Ga. App. at 362, 417 S.E.2d at 17 (citations omitted).

The passage at issue in the book emanated from a conversation, in August 1997, between plaintiffs then girlfriend, Jacqueline Dilson, and Pam Paugh, sister of Mrs. Ramsey. Specifically, Di1son contacted Paugh and told her that she believed plaintiff Wolf to be involved in the murder of JonBenet Ramsey. (SMF 317; PSMF 317.) Based on that initial

Page 59

conversation, and subsequent information acquired by defendants, the following was said about plaintiff in the Book:

Later that evening, as we were trying to relax, we received a call from Pam, who said that she had just gotten off the phone with a lady in Boulder. Jacqueline Dilson had reported to the Boulder police that she believed her live-in lover, Chris Wolf, might be the person they were seeking. When she couldn't get them to respond, she finally called Patsy's mother, Nedra, and she in turn called Pam, who immediately called Jackie back.

Jacqueline Dilson worked at the Dakota ranch, a small retreat and conference center near Lyons. Colorado, which pushed New Age experiences. She had allowed Wolf to move into her trailer in 1995. Chris Wolf turned out to be a reporter for the Colorado Daily and the Boulder County Business Report with a master's degree in journal ism. His strange behavior before Christmas and early in the morning after Christmas raised Dilson's concern about what Wolf had been doing all night.

Apparently, Dilson had spent Christmas Day with Wolf, but he would not stay to have supper with her and her family. Somewhere around 10: 00 P. M. Jacqueline went to bed, thinking Wolf had gone off on a spree of some kind or another. At around 5:30 A.M., sounds from the bathroom woke Jackie up, and she realized that Wolf was getting out of the shower. He had left dirty clothes allover the floor. Without explanation of where he'd been, Wolf crawled into bed and went to sleep.

Later the next day, Dilson and Wolf watched the television news reports of JonBenet's death. To her surprise, she observed him becoming quite agitated. Wolf cursed and said that he believed JonBenet had been sexually abused by her father. For the rest of the evening, Wolf brooded over the case.

According to Dilson, Wolf hated big business and had a fascination with world political disputes and political violence. Most importantly, she said that at one time Chris Wolf had been given a sweatshirt with the initials SBTC (the signature on the ransom note), which stood for Santa Barbara Tennis Club. We considered this

Page 60

a very significant lead and gave all the information we had to the police.

We also learned that on January 30 police officers had stopped Wolf at 11:00 A.M. as he drove into Boulder; they discovered he was driving with a suspended license. The woman officer took him to the police station for further questioning when Wolf abruptly told her that the police would make better use of their time by chasing the killer of JonBenet Ramsey. He definitely caught everyone's attention with that remark. Detectives Ron Gosage and Steve Thomas started interrogating Chris Wolf with hard questions about our child.

When they asked Wolf to write some words from the ransom note, he refused. The police put him in handcuffs, but he still refused. Finally, the two detectives put him in jail, pending the resolution of his suspended license. Later that day Wolf was released.

Wolf later reported that Steve Thomas and John Eller called him a few weeks afterward to come down to the police department. Once there, they told him, "We have no interest in you." But they did confirm that someone had given his name to police as a possible suspect.

Whatever the police's intentions, Wolf went on our suspect list. He represented too many unanswered questions.

( SMF 318 ; PSMF 318 ; John and Patsy Ramsey, Tbe Death of Innocence: The Untold Story of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth at 204-05 (2000) [hereinafter "The Death of Innocence".)

The book further stated:

By March 1, 1999, we had reported more information on Chris Wolf to the authorities. One person had seen Wolf go into an angry tirade aimed at me after he read an article about our company printed in the Boulder Daily Camera in early 1996. Apparently Wolf

Next Pages 61-70

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