IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 04-F-1464 (PAC)
JOHN RAMSEY; PATSY RAMSEY; and BURKE RAMSEY, a minor, by his next friends
and natural parents, JOHN RAMSEY and PATSY RAMSEY, Plaintiffs,
v.
FOX NEWS NETWORK, L.L.C, d/b/a FOX NEWS CHANNEL, Defendant.
SCHEDULING ORDER
I. DATE OF CONFERENCE AND APPEARANCE OF COUNSEL AND PRO SE PARTIES
The Scheduling Conference is scheduled to be held on September 13,2004.
The following parties plan to attend:
a. For plaintiffs,
L Lin Wood
Katheryn M. Ventulett
L. LIN WOOD, P.C.
The Equitable Building
Suite 2140
100 Peach Street
Atlanta, Georgia 30303
Telephone: 404--522-1713
Telecopier: 404•522•1716
b. For defendant,
Don Ann Hanswirth
HOGAN & HARTSON LLP
875 Third Avenue
New York, New York 10022
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Telephone: 212-918-3000
Telecopier: 212-918-3100
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Edwin P. Aro
HOGAN & HARTSON L.L.P.
One Tabor Center
Suite 1500
1200 Seventeenth Street
Denver CO 80202
Telephone: 303-899-7300
Telecopier: 303-899-3333
2. STATEMENT OF CLAIMS AND DEFENSES
a. Plaintiffs:
This is a civil action under Georgia law for defamation by broadcast or "defamacast."
Plaintiffs are the parents and brother of JonBenet Ramsey, the 6-year old child who was
murdered in December of 1996 in Boulder, Colorado. Defendant owns and operates a twenty-four
(24) hour cable news channel known as Fox News Channel.
On December 27, 2002,in connection with the sixth (6th) anniversary of the death of
JonBenet Ramsey, defendant televised a news segment about the JonBenet Ramsey murder
investigation on the Fox News Channel ("the news segment"). In the news segment, defendant's
reporter and correspondent Carol McKinley uttered the following statements of and concerning
plaintiffs:
"Detectives say they had good reason to suspect the Ramseys, The couple and JonBenet's
nine-year-old brother, Burke, were the only known people in the house the night she was killed.
JonBenet had been strangled. bludgeoned and sexually assaulted, most likely from one of her
mother's paintbrushes. The longest ransom note most experts have ever seen-three pages-was
left behind. Whomever killed her spent a long time in the family home. Yet there has never been
any evidence to link an intruder to her brutal murder."
Plaintiffs claim that the gist of the statements uttered by Ms. McKinley in the December 27
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Ramsey segment falsely conveyed (a) that Boulder detectives suspected Burke Ramsey was involved in the murder of his sister; (b) that Boulder detectives had good reason to suspect that Burke Ramsey was involved in the murder of his sister;(c) that Boulder detectives had good reason to suspect that John Ramsey and Patsy Ramsey were involved in the murder of their daughter and (d) that in all probability, one or more members of the Ramsey family was involved in the murder of JonBenet.
Plaintiffs assert (a) that Burke Ramsey has never been a suspect in the investigation or the
murder of his sister; (b) that Boulder detectives never had good reason to suspect that John
Ramsey, Patsy Ramsey or Burke Ramsey was involved in the murder of JonBenet; (c) that John Ramsey and Patsy Ramsey are no longer under investigation as potential suspects in connection with their daughter's murder; and (d) that substantial evidence gathered by law enforcement officers links an intruder to the brutal murder of JonBenet Ramsey. Plaintiffs further claim that defendant had actual knowledge of these facts prior to the broadcast of the news segment.
The issues for determination are:
(1) Whether the gist of the televised news segment is false and defamatory;
(2) Whether statements published and broadcast by defendant about plaintiffs were false;
(3) Whether statements published and broadcast by defendant defamed plaintiffs;
(4) Whether the false and defamatory statements were negligently published and broadcast by
defendant;
(5) Whether the false and defamatory statements published and broadcast by defendant damaged
the reputation of plaintiffs, and if so,
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(6) The extent of such damage and the amount of actual damages to be awarded to plaintiffs;
(7) Whether defendant's conduct surrounding the publication and broadcast in question
constitutes willful misconduct, malice, fraud, wantonness. oppression or that entire want of
care that would raise the presumption of conscious indifference to consequences and whether
the false and defamatory statements were published by defendant with actual malice, and
(8) The amount of punitive damages to be awarded to plaintiffs to punish and deter defendant.
b. Defendant:
This case stems from the widely publicized homicide of JonBenet Ramsey, which occurred on the
night of December 25 or the early morning of December 26, 1996 in her Boulder, Colorado home. The only known people present in the Ramsey home during the time of the homicide were JonBenet and plaintiffs. Plaintiffs bring this action against Fox News Channel for defamation based on one news report regarding the investigation of the homicide of JonBenet Ramsey. The Fox News Channel is a twenty-four hour cable news channel that is aired throughout the United States and elsewhere.
The circumstances surrounding JonBenet's death have been investigated by numerous law enforcement authorities and by private investigators hired by plaintiffs John and PatsY Ramsey. A grand jury sat for more than a year in an effort to investigate and/or to charge someone in connection with JonBenet's death. The grand jury was dismissed in October 1999. having brought no indictment against anyone. However, from the very beginning, the authorities suspected that plaintiffs John and/or Patsy Ramsey were involved in their daughter's death. Indeed, John has
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acknowledged that he and Patsy were the number one suspects from day one and continued to hold Ihat designation for many years. Many media outlets had also published reports suggesting that it was plaintiff Burke Ramsey who had killed JonBenet. Those reports ceased in or about May 1999, when Alex Hunter, Boulder's then District Attorney, issued a statement that Burke was not a suspect. On December 20, 2002, current Boulder District Attorney Mary Keenan wrote a letter to Ramsey attorney L. Lin Wood, stating that her investigators would bring "fresh eyes" to the case and would follow up on leads that might link an intruder to the crime.
Also in December, 2002, Carol McKinley, a Fox News Channel reporter who had been covering the JonBenet case since its inception, started work on a news report (the "News Report")
to commemorate the six-year anniversary of JonBenet's death. The News Report's focus is that
the District Attorney's office is steering the investigation toward a so-called "intruder
theory." The News Report states that "[i]n a recent major development, the Boulder Police
Department, long suspicious of the Ramseys, has the case over to District Attorney Mary Keenan
to bring 'fresh eyes' to the investigation. Also, the News Report quotes Wood saying "this is a
new day in this investigation. The days of the Ramseys being the focus of the investigation...
those days are over."
Plaintiffs take issue with the last sentence of the following passage from the News Report
claiming that it implicates one or all of them in JonBenet's death:
"Detectives say they had good reason to suspect the Ramseys. The couple and JonBenet's nine year old brother, Burke, were the only known people in the house the night she was killed. JonBenet had been strangled, bludgeoned and sexually assaulted, most likely from one of her mother's paintbrushes. The longest ransom note most experts have ever seen...three pages...was left behind. Whomever killed her spent a long time in the family home, yet there has never been
any evidence to link an intruder to her brutal murder."
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In addition, the Plaintiffs claim that they are defamed by the first sentence of this excerpt,
contending that it labels Burke a suspect when he never was one, and incorrectly asserts that
the authorities had good reason to suspect John and Patsy Ramsey.
Neither of the complained of sentences in this passage could, taken in context, possibly be
construed as defamatory of any of the Plaintiffs in this case. The News Report makes clear that
Burke is not a suspect. The News Report also makes clear that, even though the authorities
have yet to link an intruder to the crime, they're currently trying to do so.
Since the News Report clearly states that the authorities are attempting to develop the intruder
theory with the hope of linking an intruder to the crime, it cannot and does not defame
Plaintiffs. Moreover, since the News Report is not defamatory per se, Plaintiffs were required
to plead special damages. They did not do so. In fact, plaintiffs cannot show any damages. Also,
the words complained of are substantial1y true.
Finally, the Fox News Channel did not cablecast the News Report knowing it was false or in
reckless disregard for the truth, and also was not negligent in preparing and publishing the
News Report.
3. UNDISPUTED FACTS
The following facts are undisputed:
(1) JonBenet Ramsey died on either December 25 or December 26, 1996.
(2) At the time of his sister's death, Burke Ramsey was nine (9) years old.
(3) The JonBenet Ramsey case has been investigated by law enforcement officials in the State of Colorado, including detectives and other members of the City of Boulder Police Department and the Boulder County District Attorney's Office.
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(4) The investigation of the JonBenet Ramsey case has included a grand jury investigation in Boulder County, Colorado, commencing in September of 1998 and ending in October of 1999 without criminal charges or indictments being brought against any individual.
(5) On December 20, 2002, current Boulder District Attorney Mary Keenan wrote a letter to Ramsey attorney L. Lin Wood, a true and correct copy of same being attached hereto as Exhibit "A" and by reference made a part hereof.
(6) No one has ever been charged with the homicide of JonBenet Ramsey.
4. COMPUTATION OF DAMAGES
Plaintiffs:
Plaintiffs seek to recover actual damages to compensate them for the damage to their reputations
resulting from defendant's publications and broadcast of false and defamatory accusations about
them. The measure of damages is the enlightened conscience of fair and impartial jurors.
In addition, plaintiffs seek to recover punitive damages in an amount that an impartial jury
decides in its enlightened conscience is sufficient to punish and deter defendant.
Defendant:
While defendant is not currently seeking damages, defendant reserves its right to seek attorneys'
fees and expenses and any other damages to which it may be entitled under applicable law.
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5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f).
a. Date of Rule 26(f) meeting.
The Rule 26(f) meeting took place via telephone on August 20, 2004.
b. Names of each participant and party he/she represented.
For the Plaintiffs: L. Lin Wood and Katherine Ventulett of L. LIN WOOD. P.C.
For the Defendant: Dori Ann Hanswirth, Edwin P. Aro and Richard Bloom of HOGAN & HARTSON LLP.
c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1).
There are no changes.
d. Statement as to when rule 26(a)(1) disclosures were made or will be made.
The parties have already made their Rule 26(a)(1) disclosures. The disclosures were filed in
the United States District Court for the Northern District of Georgia. Plaintiffs served their
disclosures on May 27, 2004 and defendant served its disclosures on May 28, 2004. The initial
disclosures were sent to this Court following the Georgia court's July 6, 2004 order transferring
this action to this Court.
e. Statement concerning any agreements to conduct informal discovery, including joint
interviews with potential witnesses, exchanges of documents, and joint meetings with clients to
discuss settlement. If there is agreement to conduct joint interviews with potential witnesses,
list the names of such witnesses and a date and time for the interview which has been agreed to
by the witness, all counsel, and all pro se parties.
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The parties do not have any present agreements concerning conducting informal discovery. If at
some future date the parties deem it appropriate to conduct informal discovery in an effort to
facilitate the litigation, the parties will coordinate the same.
6. CONSENT
The parties do not consent to the exercise of jurisdiction of a magistrate judge.
7. CASE PLAN AND SCHEDULE
a. Deadline for Joinder of Parties and Amendment of Pleadings:
Friday, October 15, 2004.
The parties respectfully request that the Court stay discovery in this matter pending a decision
on the fully-submitted motion to dismiss filed by the Fox News Channel. However,if the Court
decides that discovery should now proceed, the parties propose the following schedule:
b. Discovery Cut-off:
Tuesday, May 31, 2005. [Handwritten note: bb Deadline for 28 U.S.C. 5636(c) consent to a
magistrate judge is June 5, 2005. See LR 72.2]
c. Dispositive Motion Deadline:
Friday, July 8, 2005.
d. Expert Witness Disclosure:
(1) Fields of expert testimony:
(a) Defendant anticipates the following fields of expert testimony, but reserves the right to designate other experts:
• Forensics/pathology;
• DNA analysis and evaluation;
• Crime scene investigation/profiling;
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• Handwriting analysis;
• Journalism standards;
• Plaintiffs' damages.
(b) Plaintiffs anticipate the following fields of expert testimony, but reserve the right to designate other experts, including for rebuttal evidence:
• Crime scene assessment, evidence and investigation;
• Forensics/pathology;
• Handwriting analysis;
• DNA analysis and evaluation.
(2) Each side shall be allowed to use no more than 10 experts.
(3) The parties shall designate all experts and provide opposing counsel and pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before:
Friday, April 1, 2005.
(4) The parties shall designate a1l rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before:
Friday, May 6, 2005.
(5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B),no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court.
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e. Deposition Schedule:
Plaintiffs:
Name of Deponent
Date of Deposition
Time of Deposition
Expected Length of Deposition
(1) Carol McKinley Nov, 8-12, 2004 TBA 14 hours
(2) Alex Hunter Nov. 8-12, 2004 TBA 7 hours
(3) Lou Smit Nov. 8-12, 2004 TBA 14 hours
(4) Mary Keenan TBA TBA 7 hours
(5) Damon Blick TBA TBA 7 hours
(6) Kelly Burke TBA TBA 7 hours
(7) Dennis King TBA TBA 7 hours
(8) Bryan Boyd TBA TBA 7 hours
(9) Michael J.Doberson,M.D.,Ph.D. TBA TBA 7 hours
(10) Lloyd Cunningham TBA TBA 7 hours
(11) Howard Rile TBA TBA 7 hours
(12) Alicia Acuna TBA TBA 4 hours
(13) Michael Butler TBA TBA 4 hours
(14) Lloyd Gottschalk TBA TBA 7 hours
(15) Other witnesses as identified in discovery TBA TBA TBA
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Defendant:
Name of Deponent
Date of Deposition
Time of Deposition
Expected Length of Deposition
(1) Mark Beckner Nov. 1-4,2004 TBA 7 hours
(2) Alex Hunter Nov. 1-4,2004 TBA 7 hours
(3) Lou Smit Nov. 1-4,2004 TBA 7 hours
(4) H. Ellis Armistead TBA TBA 7 hours
(5) Dr. John B. Meyer TBA TBA 4 hours
(6) Patsy Ramsey TBA TBA 14 hours
(7) John Ramsey TBA TBA 7 hours
(8) Burke Ramsey TBA TBA 7 hours
(9) Mary Keenan TBA TBA 7 hours
(10) Michael Kane TBA TBA 7 hours
(11) John Eller TBA TBA 5 hours
(12) Tom Bennett TBA TBA 4 hours
(13) Carl W. Whiteside TBA TBA 7 hours
(14) Tom Koby TBA TBA 7 hours
(15) Dr. Henry Lee TBA TBA 4 hours
(16) Ollie Gray TBA TBA 4 hours
(17) Chet Ubowski TBA TBA 7 hours
(18) Linda Arndt TBA TBA 4 hours
(19) Tom Wickman TBA TBA 4 hours
(20) Lin Wood TBA TBA 4 hours
(21) Pete Mang TBA TBA 4 hours
(22) Ron Gosage TBA TBA 3 hours
(23) Jane Harmer TBA TBA 3 hours
(24) Tom Trujillo TBA TBA 3 hours
(25) Mitch Morrissey TBA TBA 3 hours
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(26) Thomas Haney TBA TBA 3 hours
(27) Linda Hoffmann-Pugh TBA TBA 4 hours
(28) Stevwn Jaffe, M.D. TBA TBA 4 hours
(29) Donna Haterick TBA TBA 4 hours
(30) Carol Simpson TBA TBA 4 hours
f. Interrogatory Schedule:
[Handwritten Note: Served by 4-29-05]
g. Schedule for Request for Production of Documents:
All requests for the production of documents must be served by Friday, April 29, 2005.
h. Discovery Limitations:
(1) Any limits which any party wishes to propose on the number of depositions.
The parties agree that each side will take no more than 30 depositions, not including expert
depositions.
(2) Any limits which any party wishes to propose on the length of depositions.
The parties agree to limit all depositions to 7 hours according to Federal Rule of Civil
Procedure 30(d)(2), except each side may take 3 depositions for up to 14 hours each. Plaintiffs
reserve the right to limit the number of consecutive hours of the deposition of Patsy Ramsey due
to health considerations.
(3) Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules.
The parties wish to modify the presumptive number of depositions
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prescribed in Rule 30(a)(2)(A) to allow for each party to take 30 depositions, not including expert depositions.
(4) Limitations which any party proposes on number of requests for production of documents and/or requests for admissions.
The parties agree to limit the number of requests for production of documents to 75 for each side.
The parties also agree to limit the number of requests for admissions to 74 for each side.
(5) Other Planning or Discovery Orders
- The parties may be entering into a Protective Order by stipulation.
- The parties respectfully request that the Court stay discovery in this matter pending a decision
on the fully-submitted motion to dismiss filed by Fox News Channel. [Handwritten note: A motion for stay is to be filed by 10-1-04.]
8. SETTLEMENT
During the parties' telephone conference on August 20, 2004, the parties discussed the possibility
of settlement. The parties feel it is not possible to settle this matter as the parties disagree
on liability and damages. Defendant also does not think alternative dispute resolution will be of
assistance in this matter at this time. Plaintiffs do think that alternative dispute resolution
may be of assistance after some of the initial depositions are taken.
9. OTHER SCHEDULING ISSUES
a. A statement of those discovery or scheduling issues, if any, on which counsel, after a
good faith effort, were unable to reach an agreement.
None.
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b. Anticipated length of trial and whether trial is to the court or jury.
Plaintiffs: This matter will be tried to a jury during a __ day trial. Plaintiffs estimate no
more than 2-3 days for jury selection and 5-10 days to present their case in chief.
Defendant: This matter will be tried to a jury during a four-week trial.
10. DATES FOR FURTHER CONFERENCES
a. A settlement conference will be held on 12-2-04 at 1:00 o'clock p.m.
It is hereby ordered that all settlement conferences that take place before the magistrate
judge shall be confidential.
( ) Pro se parties and attorneys only need be present.
(X) Parties, attorneys and client representatives with authority to settle must he present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.)
(X) Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before 11-20-04 outlining the facts and issues in the case and the parties' settlement position.
(b) Status conferences will be held in this case at the following dates and times:
_____________________________________________________________________________
_____________________________________________________________________________
(c) A final pretrial conference will be held in this case on Sept. 23, 2005 at 11:30 o'clock a.m.
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in Courtroom 501. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference.
11. OTHER MATTERS
In addition to filing an appropriate notice with the clerk's office, counsel must file a copy or
any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's
address or telephone number with the clerk of the magistrate judge assigned to this case.
In addition to filing an appropriate notice with the clerk's office, a pro se party must file
a copy of a notice of change of his or her address or telephone number with the clerk of the
magistrate judge assigned to this case.
With respect to discovery disputes, parties must comply with D.C. COLO. L Civ R 7.1A.
The parties filing motions for extension or time or continuances must comply with D.C. COLO.
L Civ R 6.1D by submitting proof that a copy or the motion has been served upon the moving
attorney's client, all attorneys of record, and all pro se parties.
12. AMENDMENTS TO SCHEDULING ORDER
This Scheduling Order may be altered or amended only upon a showing or good cause.
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DATED this 13th of September, 2004.
BY THE COURT:
Patricia A. Coan
United States Magistrate Judge
APPROVED:
L. LIN WOOD, P.C.
Signature of L. Lin Wood
L Lin Wood
Katherine M. Ventulett
The Equitable Building
Suite 2140
100 Peachtree Street
Atlanta, Georgia 30303
Telephone: 404-522-1713
Telccopier: 404-522-1716
Counsel for Plaintiffs
HOGAN & HARTSON, L.L.P.
Signature of Dori Ann Hanswirth
Slade R. Metcalf
Dori Ann Hanswirth
Jason P. Conti
875 Third Avenue
New York, New York 10022
Telephone: (212) 918-3000
Facsimile: (212) 918-3100
-and-
Thomas L. Strickland
Edwin P. Aro
One Tabor Center, Suite 1500
1200 Seventeenth Street
Denver, CO 80202
Telephone: (303) 899-7300
Facsimile: (303) 899-7333
Counsel for Defendant
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 04-F-1464 (PAC)
The undersigned certifies that a copy of the foregoing Scheduling Order was served on September
13, 2004 by; (*) Delivery to; or by (**) Depositing in the United States Mail, postage prepaid,
addressed to; or by (***) facsimile to:
L. Lin Wood., Jr. Esq. (**)
Katherine M. Ventulett, Esq.
The Equitable Building, Suite 2140
100 Peachtree Street
Atlanta, GA 30303
Thomas L. Strickland, Esq. (**)
Edwin P. Aro. Esq.
One Tabor Center, Suite 1500
1200 Seventeenth Street
Denver, CO 80202
Slade R. Metcalf, Esq. (**)
Dori Ann Hanswirth, Esq.
Jason P. Conti, Esq.
875 Third Avenue
New York, NY 10022
Signature
Deputy Clerk
SEAL OF THE STATE
OF COLORADO
1876
DISTRICT ATTORNEY'S OFFICE
TWENTIETH JUDICIAL DISTRICT
MARY T. KEENAN, DISTRICT ATTORNEY
December 20, 2002
Dear Mr. Wood:
Since I took office in January 2001, the Ramsey case has weighed heavily on my mind. I assigned
Bill Nagel to review the file. Bill and I have discussed at length the history and the status of
this investigation.
In early October, shortly after much of our review had been completed, you sent me a letter
outlining a request from Mr. and Mrs. Ramsey that an independent investigation of this case be
initiated. I discussed your letter with Chief Beckner and I let both of you know that I would
consider that request seriously and thoughtfully before responding.
In deciding how to proceed at this point in time, I met with you and Chief Beckner to discuss
your request. I have consulted extensively with my senior staff. I have also conferred with many
of my metro area colleagues individually and with the Attorney General and the prosecutors who
assisted with the Grand Jury. In short, I believe I have been thorough in my consideration of
the options.
There are overriding principles that dictate my approach to this request:
1. My oath of office to uphold the Constitution and the law;
2. My obligation to seek to ensure that the Ramseys be afforded the protection of the
Constitution in that they are presumed innocent until proven guilty beyond a reasonable
doubt in a court of law;
3. My belief that this case can benefit from additional investigation by fresh eyes;
4. My belief that the Boulder Police Department has done an exhaustive and thorough
investigation of the Ramseys as potential suspects.
Based on the above and after consultation with Chief Beckner, I have made a decision to conduct
further investigation from within my office, using our investigative resources. Our efforts will
focus on following up on leads which have not previously been investigated or that are brought to
our attention in the future. We will not exempt the Ramseys from this investigation. We will work
cooperatively with Lou Smit, the Ramseys, and the Boulder Police Department. I will make every
effort to communicate openly with you. I will not go to the press now or in the future to
publicize this decision. I will act in good faith in all matters and of course will continue to
keep and protect the secrecy of the Grand Jury proceedings.
Please understand that this decision is being made for one reason only, the fact that a violent
child murderer is at large.
I believe that we can move forward in this matter in a spirit of good faith and cooperation. I
cannot expend unlimited resources in this case. However, I will use what resources I can to pursue the investigation until the case is brought to justice in a court of law or until I believe that
no further forward progress can be made.
I met again with Chief Beckner today. He joins me in this decision and has agreed to cooperate
in our efforts.
Please feel free to contact me to discuss this matter at any time.
Respectfully,
Signature of Mary Keenan
Mary T. Keenan
District Attorney
Twentieth Judicial District