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accused the company I worked for, Lockheed Martin, of selling arms to South American countries.

(SMF 223: PSMF 223: The Death of Innocence at 329.)

The Court will assume that the statements made in the Book do defame plaintiff Wolf. The statements indicate that defendants and others considered plaintiff to be a potential suspect in the brutal murder of a child and also suggest that there was some basis for the suspicion. "Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. II Barber v. Perdue, 194 Ga. App. 287, 288, 390 S.E.2d 234, 235 (1989) . If false, such statements could reasonably be held by a juror to constitute libel per se because the statements are "injurious on their face--without the aid of extrinsic proof." See also Zarach v. Atlanta Claims Ass'n, 231 Ga. App. 685, 688, 500 S.E.2d 1, 5' (1998) ("Defamatory words which are actionable per se are those which are recognized as injurious on their face--without the aid of extrinsic proof.")

A conclusion that the statements were libelous is not inconsistent with the recent holding by the Eleventh Circuit in another defamation action concerning the Ramsey case, also filed by plaintiff's counsel, Darnay Hoffman. In that action, Hoffman Pugh v. Ramsey, 312 F.3d 1222 (11th Cir. 2002), plaintiff Linda Hoffman-Pugh, also claimed that the defendants had libeled her in their book by creating a false impression that she was or had been

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a suspect in the murder of JonBenet. The Eleventh Circuit, however, affirmed the district court's decision that the defendants' book, when considered as a whole, does not defame Ms. Hoffman-Pugh as a matter of law. Id. The court concluded that the book, when fairly read, did not convey that Ms. Hoffman-Pugh was a suspect in the murder.

Key to the Eleventh Circuit's analysis is the defendants' failure to ever state that Ms. Hoffman-Pugh, defendants' housekeeper, was considered to be a murder suspect py them or by the police. Instead, the Book states that, before they knew their daughter's fate, at a time when they believed her to have been kidnapped and were running through their minds people who knew JonBenet, the defendants never believed that Ms. Hoffman-Pugh would hurt their daughter even if she had kidnapped her because' she was a "good, sweet person." Id. at 1226. In addition, the Eleventh Circuit notes that Ms. Hoffman-Pugh does not fit defendants' profile of the culprit detailed later in the Book, which describes a male, age 25 to 35, who is either a former convict or has been around hardened criminals, and who had access to a stun gun. Id. Finally, the court concluded that when, read in its entirety, the Book indicates that Ms. Hoffman-Pugh is not a suspect. Id. at 1227. Alternatively, the panel concluded that even if defamatory, the statements were "nonactionable statements of opinion." Id. at 1225.

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In the instant case, however, plaintiff does fit the profile of the murderer set out in the book and was discussed in detail as a viable suspect in the murder investigation. Indeed, in recognition of these substantial differences between the Hoffman Pugh case and the case pending before this Court, the Eleventh Circuit noted that the statements regarding plaintiff were "not the situation before us." Id. at 1227 n. 3. In short, the "sting" or "gist" of the passages in the Book suggest that plaintiff is a viable suspect in the murder. Such an accusation is defamatory.

Of course, that a given statement is defamatory does not mean that the defamation is actionable. As noted supra and infra, truth is a defense to a libel action, as is the expression of an honestly held opinion. Certainly, many of the statements about' plaintiff Wolf, recounted above, are true. That is, Ms. Dilson did recount the described information about what she believed to be plaintiff's suspicious behavior. Likewise, plaintiff was questioned by the police concerning JonBenet' s murder. 29 Yet,

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29 Indeed, defendants arguably understated the police department's interest in plaintiff. Since 1997, plaintiff has been a long standing suspect of both the Boulder Police Department and the Boulder County District Attorney's Office in the murder investigation. (SMF 285-286, 291; PSMF 285-286, 291.) Contrary to what the Complaint indicates, Boulder authorities have yet to clear plaintiff of possible involvemnt in the murder (SMF 287; PSMF 287.) Further, he is the only suspect to date to have been arrested in connection with the murder investigation. (SMF 290; PSMF 290. )

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ultimately, the inference one draws from the passage is the defendants' belief, not that plaintiff actually killed their daughter, but that there is reason to suspect that he might have. Defendants argue that this is a non-actionable opinion. Plaintiff has argued, however, that this is not an honestly held opinion because Mrs. Ramsey actually killed her daughter and her husband knows this. Accordingly, plaintiffs argues, the Ramseys could not believe that plaintiff, or anyone else is a viable suspect, because the Ramseys know that they are the perpetrators of the crime.

This Court likewise concludes that, as to this narrow theory of defamation articulated by plaintiff, the statements at issue are defamatory.

2. Were the statements made with malice?

In addition to proving that the published statements were indeed defamatory, plaintiff bears the additional burden of establishing that defendants acted with "actual malice." Plaintiff bears this addition burden because he has stipulated that, for all purposes of this litigation, he is a "limited purpose public figure." (Stipulation [8] . ) "A limited purpose public figure is 'an individual [who] voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.'" Little v. Breland, 93 F.3d 755, 757 ( 11th Cir. 1996) {quoting Gertz v.

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Robert Welch, Inc., 418 U.S. 323, 351 (1974". Actual malice, in the New York Times Co. v. Sullivan, 376 U.S. 254, 280, (1964) , sense, is knowledge that the defamatory matter was false or that it was published with reckless disregard for whether it was false or not. Morton v. Gardner, 155 Ga. App. 600, 604, 271 S.E.2d 733, 737 (1980).

Plaintiff must prove falsity by clear and convincing evidence. Straw v. Chase Revel, Inc., 813 F.2d 356, 361 n.6 (11th Cir. 1987); Firestone v. Time, Inc., 460 F.2d 712, 721-23 (5th Cir. 1972) (Bell, J. specially concurring). 30 Clear and convincing evidence:

produce [8] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

Cruzan v. Director, Missouri Department or Health, 497 U.S. 261, 285 n. 11 (1990) (internal quote omitted) . In other words, the clear and convincing evidence "place [s] in the ultimate fact finder an abiding conviction that the truth of (the] factual contentions are 'highly probable' ." Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (citing C. McCorick, LAW OF EVIDENCE § 230, p.679 (1954".

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30 The Eleventh Circuit has adopted as binding precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. See Bonner v. City or Prichard, 661 F.2d 1206 (11t:n Cir. 1981) (en bane) .

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Plaintiff attempts to prove actual malice by what he asserts is clear and convincing evidence that defendants actually killed JonBenet and, therefore, made the above libelous statements that plaintiff was a viable suspect, knowing that such statements were untrue. As this is defendants' motion for summary judgment, all factual inferences must be drawn in favor of plaintiff. Further, as there is little factual dispute between the parties as to the evidence that exists, the Court will review each party's theory of the crime and the evidence proffered in support of the respective theory, indicating when an actual dispute of fact exists between the parties. The Court will compare the evidence in order to determine whether the record supplies clear and convincing support for the proposition that defendants are responsible for the murder of their child. If the record does not contain such evidence, . defendants' motion for summary judgment must be granted. If the record does contain sufficient information from which a reasonable factfinder could impute criminal culpability to defendants, however, the Court must deny defendants' motion for summary judgment.

3. Evidence in Support of the Intruder Theory

Defendants assert that the evidence establishes that Mrs. Ramsey did not murder her daughter JonBenet. {Defs.' Br. In Supp. of Summ. J. (67] at 18.) Specifically, defendants note that:

[a]fter a half-decade investigation into the murder of JonBenet Ramsey, and year-long grand jury investigation,

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no plausible evidence proves Patsy Ramsey had anything to do with the murder of her child. Every prosecutor to examine this case agreed that no charge or crime should have been brought against [defendants].

(Defs.' Br. In Supp. Of Summ. J. [67] at 19-20; see also SMF , 85, 91-93; PSMF 85; 91-93.) Defendants contend that evidence gathered in the investigation of JonBenet's death instead shows that she was abducted, sexually assaulted, tortured and murdered by an intruder. (Id. )

As Andrew Louis Smit, a respected homicide detective hired by the Boulder Police Department to investigate this crime, has noted, there are only two possible solutions to this crime: that is, either someone in the Ramsey household committed the crime or an intruder did it. (Smit Dep. at 54.) Defendants contend that the weight of the undisputed evidence in the case is consistent with an inference that an intruder killed their child. (Defs. ' Br. In Supp. Of Summ. J. [67] at 19-20.) The first questions then are whether an intruder could have entered the home and, if so, is there evidence that an intruder, in fact, entered the home on the date of the murder. Defendants respond that the undisputed evidence supplies an answer of "yes" to both questions. First, defendants have indicated that their house was not secure during the night of December 25, 1997, and that they had not turned their security alarm on. (SMF 127; PSMF , 127.) In addition, at

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least seven windows and one door were found "open" 31 on the morning of December 26, 1997. (SMF 126; PSMF 126,) A number of windows were accessible from the ground level, including a window well, with removable grate, over three windows that opened into a playroom area of the basement. (SMF 128; PSMF 128.) This window-well is located on the back side of the house, hidden from the front of the house and from neighbors. (SMF 130; PSMF 130. )

There is likewise undisputed evidence of a disturbance in this window-well area: specifically the leaves and white styrofoam packing peanuts that had pooled in the window-well appeared to have been cleared from, or brushed to either side of, the center window's sill in the well. SMF 132; PSMF 132.) In addition, this center window had a broken pane and was found open on the' morning of December 26, with a suitcase and a glass shard from the window pane underneath it. (SMF 135 ; PSMF 135.) 32 Green foliage was also found tucked under the movable grate over the window well, indicating that the grate had been opened and closed

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31 The term "open" was not defined. It is, therefore, not clear if the entrances were ajar or unlocked.

32 The suitcase contained a pillow sham, duvet and Dr. Seuss book. These items belonged to defendants, but they have indicated that the items were not normally stored in the suitcase. (SMF 146; PSMF 146.) A lab report indicated that fibers from the sham and duvet were found on the shirt that JonBenet was wearing when she was found in the wine cellar. (SMF 147; PSMF 147.)

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recently. (SMF 131; PSMF 131.) Further, the Boulder Police conducted experiments that showed a person could enter the basement playroom through the center window. (SMF 133; PSMF 133. ) Moreover, leaves and debris, consistent with the leaves and debris found in the window well, were found on the floor under the broken window suggesting that someone had actually entered the basement through this window. (SMF 136; PSMF 136.) Likewise, a leaf and white styro-foam packing peanuts, consistent with the leaves and packing peanuts found pooled in the window-well, were found in the wine-cellar room of the basement where JonBenet's body was discovered. (SMF 134; PSMF 134.) This evidence is consistent with an inference that whoever entered through this window ultimately walked to the wine-cellar room at some point.

Certain undisputed evidence of how defendants' house was found on the morning of December 26 is also consistent with the intruder theory of the crime. For example, the lights were on in the basement, when first searched at approximately 6:15 a.m. that day. (SMF 129; PSMF' 129.) In addition, the butler's door to the kitchen was found ajar that morning (SMF 137; PSMF 137.) Defendants note that the butler's door was only a short distance away from the spiral staircase where the Ransom Note was found and within plain view of where the pad of paper used for the Ransom Note was found. (SMF 138; PSMF 138.) Moreover, contrary to media reports that had discredited an intruder theory, based on

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the lack of a "footprint in the snow," there was no snow covering the sidewalks and walkways, to defendants' home on the morning of December 26, 1996. (SMF 139; PSMF 139.) Hence, person walking along these paths would have left no footprints.

Defendants further aver that the undisputed physical evidence is not consistent with an "accidental killing followed by staging," (Defs.' Br. In Supp. Of Summ. J. [67]), but instead is more consistent with a theory that the intruder subdued JonBenet in her bedroom and then took her to the basement, where she was sexually assaulted and subsequently murdered. First, JonBenet's body was found bound with complicated and sophisticated bondage devices, namely neatly-made rope slipknots and a garrotte, designed to give control to the user. (Defs.' Br. In Supp. Of Summ. J. [67] at 19; SMF 161, 163-164; PSMF 161, 163-164.) The parties agree that such devices necessarily were made by someone with expertise in bondage. (SMF 162, 169; PSMF 162, 169.) While it is certainly possible that defendants" possessed such unusual and specialized skills, there is no evidence that establishes this fact. Obviously, if defendants lacked the skills

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33 Of course, plaintiff's primary theory, taken from Detective Steve Thompson's book, is that Mrs. Ramsey murdered her daughter and staged the scene. According to this theory, Mr. Ramsey became complicit only the next day, after the Note was discovered, when he realized that the handwriting on the Note was his wife's. Supra at 10. Under this proposed timeline, he would not have been involved in making the bondage device.

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